Masuku Hate Speech Conviction Reversed On Appeal

Long-time readers of the blog might recall the saga of Bongani Masuku, a top COSATU official who back in 2009 was found to have engaged in hate speech for a variety of statements about Jews and Zionists. Highlights included:

• Referring to Zionists as "belong[ing] to the era of their Friend Hitler"
• Contending that "every Zionist must be made to drink the bitter medicine they are feeding our broathers (sic) and sisters in Palestine," and
• Expressing his view that "Jews are arrogant, not from being told by any Palestinian, but from what I saw myself."

Lest there be any mistake on the audience for his remarks, Masuku expressly said he was seeking to "convey a message to the Jews of [South Africa]."

Anyway, the South African Human Rights Commission found that Masuku had engaged in hate speech, and (eight years later) the Equality Court upheld that ruling in 2017. But earlier this month, the Supreme Court of Appeals (an intermediate court -- don't let the name deceive you) reversed that decision and concluded that Masuku's comments were protected speech.

Commenting on foreign legal decisions is always a fraught exercise -- needless to say, I'm not familiar with the particularities of South African law, procedure, or precedents that are germane to correctly deciding the case. That's compounded by the fact that I oppose hate speech laws on principle -- none of what Masuku said would be actionable in America, and I'm content with that arrangement. That said, in states which have such laws I don't think Jews should be cast out from their blanket of protection -- something that does sometimes seem to happen. There's a big difference between a court generally adopting a narrow view of what hate speech prohibits, and a ticket good for this ride only that says Jews -- and only Jews -- have to suck it up and learn how to grow thicker skins.

In any event, the opinion itself seems generally skeptical about the strictures hate speech laws place on free speech -- again, a position I'm broadly sympathetic to, albeit one whose application to this case I'm poorly positioned to evaluate vis-a-vis other South African hate speech precedents. The tenor of the opinion also gave the distinct impression that the court believed that Masuku had been provoked, and was simply responding emotionally in an emotional context -- a position I'm considerably less sympathetic to.

In the main, though, the appellate court concluded that none of the statements identified as "hate speech" by the lower court were targeted at Jews (as opposed to at Zionists). Hence, they could not be deemed to hatred directed at a protected group (religion or ethnicity).

Way back in 2009, I suggested that this was going to be the core issue of the case and suggested some arguments establishing why it was proper to view Masuku as targeting Jews (I also expressed skepticism that Jews would ultimately win in South African courts, so, hurrah for vindication?). I won't rehash those here, but I am curious about the status of those statements from Masuku which did seem to make evident that he was referring to Jews-qua-Jews, not "just" Zionists. The appellate court alluded to other statements "included in the complaint", but did not identify them -- focusing only on those statements which were ultimately adjudged to have been hate speech.

This seems odd. A statement to the effect that one is "convey[ing] a message to the Jews of [South Africa]" may not be hate speech on its own, but it seems like pretty strong evidence regarding who Masuku is talking to and about elsewhere in his speech. If Masuku said he's sending a message to "the Jews", then believe him!

But -- as per my above caution regarding commenting on foreign legal rulings -- I don't know the status of that statement or others where Masuku seems more explicitly antisemitic. Were they in the record of the case? If not, why not? There might be wholly justifiable legalistic reasons for why they were not considered -- I just am not positioned to know what they are. But the impression, from my knowledge of the facts as an observer, is that the court concluded that Masuku wasn't talking about Jews by scrupulously avoiding mention of all the parts where Masuku is very clearly talking about Jews.

The case may still yet go up to South Africa's highest court (I wouldn't hold my breath for a successful outcome). And if you want a taste of my terrible life -- here is the article which initially alerted me to the ruling. If you want to hear the court opinion defended in the most openly antisemitic way possible, click the link and prepare to be depressed.