He had first been ordered to do so by the South African Humans Rights Commission in 2009 and then by the Equality Court in 2017, when he refused the order by the SAHRC.
Masuku appealed the Equality Court ruling in the Supreme Court of Appeal, which agreed with him, and then five different parties joined the SAHRC to take the matter to the Constitutional Court in 2019, which ruled unequivocally that what he had said and done, first posting online and then at a rally on the Wits University campus, had in fact been hate speech.
As Justice Emeritus Sisi Khampepe noted in the final paragraph of the unanimous Constitutional Court judgment, drawn from the Torah: “death and life are in the tongue”.
It was a watershed case for many reasons, said Advocate Carol Steinberg SC, who was part of the three-person team with Advocate Christiaan Bester, led by Advocate Wim Trengove SC.
The counsel was reflecting on the case at the SAJBD’s biennial Gauteng conference held at the Sandton Convention Centre last Thursday before US Special Envoy for Monitoring and Combating Anti-Semitism Ambassador Deborah Lipstadt delivered the keynote address.
Quoting the late Rabbi Lord Jonathan Sacks, Steinberg said anti-Semitism was not about not liking Jews or not liking Israel but rather denying the Jews the right to exist as a national entity, which was accorded to everyone else.
“The Masuku judgment goes to the mandatory boundary anti-Semitism and anti-Zionism and legitimate criticism of Israel and the government of Israel. The challenge in the case was to show that even though Masuku never used the word Jews, he was being anti-Semitic.”
Masuku, she said, had used proxy words, words that were not themselves prohibited, to describe something that was prohibited. In this case, using Adolf Hitler, the Nazi dictator who had authored the Holocaust, which claimed 6-million Jewish lives during World War II, and other anti-Semitic rhetoric as a proxy to call for the harming of Jews in general. The Constitutional Court agreed with the argument and, in turn, created an international precedent, Steinberg said.
“Focussing on the plain text and ignoring the objectively ascertainable subtext would be ignorant, inappropriate and antithetical to what our constitution demands.”
Quoting Sacks again, she said: “The ultimate weapon of the new anti-Semitism is dazzling in its simplicity; the Holocaust must never happen again; the Israelis are the new Nazis, and the Palestinians are the new Jews, all Jews are Zionists, so the real anti-Semites of our time are the Jews themselves.”
The starting point in the Constitution, Trengove said, was the right to freedom of expression, which is “an extremely important right”, but this had to be offset by the right to dignity and then seen against the constitution’s prohibition of discrimination.
“There are three laws that navigate this tension; the law of defamation, crimen injuria and the prohibition of hate speech. It’s very important for vulnerable groups,” he said. “one further step could be to protect people against ridicule on prohibited grounds because it can be equally poisonous by belittling people on the grounds of what they are.”
If this was the case, then South Africa could prohibit powerful speakers from marginalising vulnerable groups by publicly maligning them.
The law didn’t need to be changed, said Bester; a key aspect in addressing hate speech was not so much punishment as restorative justice, which was why ordering someone to apologise and to see them show remorse for their actions was so important. The Equality Act gave presiding officers broad discretion in this regard, from the issuing of interdicts, awarding of damages and the ordering of apologies.
A successful prosecution for crimen injuria could lead to imprisonment, as happened in the case of Vicki Momberg, while the draft Hate Crimes Bill, which is currently before parliament, does provide for up to eight-year jail sentences on conviction.
“We don’t need to criminalise the act because it reduces the opportunity for parties to find each other through restorative justice,” Bester said.
Lipstadt, who was best known before her appointment by President Jo Biden in March this year for her legal victory over arch-Holocaust denier David Irving, was visiting South Africa in her new role as US Special Envoy to Monitor and Combat Anti-Semitism.
“In a time of rising anti-Semitism, I am so encouraged by how a community of 50 000 Jews continues to play such an important role in fighting it. In much of Europe and the US, anti-Semitism is on the rise. No matter where we turn, we see expressions of Jew hatred across all parts of the political spectrum.”
The reason was manifold, she said; confusion about what anti-Semitism is, why it is ignored and if it even matters. The reality was that anti-Semitism was exactly the same as any other form of prejudice and stereotype; racism, homophobia, sexism or Islamophobia.
“The definition of a stereotype of a person is standing in front of your nose, even though that person is three blocks away.”
But anti-Semitism was also unique. It was more than a prejudice. It was a conspiracy theory premised on the fact the Jews would harm all others. Most prejudices involved the victims being seen as lesser than the haters, but in terms of the conspiracy theory underpinning anti-Semitism, Jews were seen as all-powerful.
This had two immediate consequences, said Lipstadt, the first being that because the Jews are a threat to be feared, the haters have to actively protect themselves by neutralising this threat. The second is that no one sees Jews as victims because of their perceived position of power.
“That’s the innocent explanation, sometimes though it is the result of conscious or unconscious bias, especially for the left. In their eyes, Jews are white, rich and all-powerful, therefore ipso facto incapable of being victims – even though half of the population of Israel are not Ashkenazi Jews.”
On the far-right, Jews were not seen as white and part of the master race but rather as puppeteers manipulating all non-white people as part of the Great Replacement Theory to unseat white hegemony in European and North American societies. The net result was a surge in anti-Semitism across the northern hemisphere – and mass shootings in the US.
“As a historian, I can only tell you that Jews are the canary in the coal mine,” she said. “It’s the hatred that an authoritarian regime will begin with but not the hatred they will end with.”
‘Othering’ one group as lesser than you could easily morph into the ‘othering’ of other vulnerable minorities.”
Echoing Khampepe’s judgment, she said: “Anti-Semitism is a profound threat to democracies. Hatred and genocide begin with words.”