The Bongani Masuku Case Comes To A Close(?)

Long (loooong) time readers of this blog may recall the case of Bongani Masuku, a former top trade union official in South Africa alleged to have engaged in hate speech against Jews in the course of condemnatory comments about Israel during the 2009 conflict with Palestine in Gaza. This has been a lengthy saga -- in 2009, the South African Human Rights Commission concluded that Masuku had engaged in hate speech; in 2017, that ruling was upheld by the Equality Court; and in 2018, that ruling was in turn reversed by an appellate court. Now, finally, in 2022, the Constitutional Court of South Africa -- the highest court -- has weighed in, unanimously concluding that one of the four challenged statements by Masuku does in fact constitute hate speech and ordering Masuku to deliver an apology (link to the opinion here).

Again, this is a complicated saga and some of the points I would make would be repetitive. But a few points are worth (re)emphasizing here:

• Some of the most damning statements by Masuku do not seem to be in the record the courts have been reviewing -- I'm not sure why (I assume it is for some procedural reasons regarding how the challenge was brought, not that the courts are just studiously ignoring them, but I'm not sure). For example, Masuku reportedly expressly said that his comments were meant to "convey a message to the Jews of South Africa", which seems quite germane to assessing whether his comments should be seen as targeting Jews.
• Likewise, I have no particular knowledge about South African law, and so cannot comment on whether this decision is correct or not as a faithful application of the current (or "best") reading of the relevant constitutional clauses and statutes.
• Finally, while I oppose "hate speech" rules on principle, South Africa has elected to take a different approach on speech than does American constitutional law. Given that, there is no reason why the Jewish community of South Africa should not be able to avail itself of these protections.

The Court analyzed four (but really two) comments by Masuku to see if they qualified as hate speech. The first was a blog comment where Masuku said:

1. [A]s we struggle to liberate Palestine from the racists, fascists and Zionists who belong

to the era of their Friend Hitler! We must not apologise, every Zionist must be made

to drink the bitter medicine they are feeding our brothers and sisters in Palestine. We

must target them, expose them and do all that is needed to subject them to perpetual

suffering until they withdraw from the land of others and stop their savage attacks on

human dignity.

(In the realm of "damning comments not discussed", during this blog discussion Masuku reportedly said that he had come to conclude that "Jews are arrogant, not from being told by any Palestinian, but from what I saw myself").

The other three all came during a pro-Palestine university rally (and the court analyzes them together, hence why I think it's perhaps more sensible to view them as one statement rather than three). There Masuku said:

2. “COSATU has got members here even on this campus; we can make sure that for that side [the pro-Israel side] it will be hell.” 

3. “[T]he following things are going to apply: any South African family, I want to repeat it so that it is clear for anyone, any South African family who sends its son or daughter to be part of the Israel Defence Force must not blame us when something happens to them with immediate effect.”

4. “COSATU is with you, we will do everything to make sure that whether it’s at Wits, whether it’s at Orange Grove, anyone who does not support equality and dignity, who does not support rights of other people must face the consequences even if it means that we will do something that may necessarily cause what is regarded as harm.” 

The Court ultimately concluded that the first statement (in the blog) was hate speech, while the other three are not. The deciding factor was the Hitler reference, which, the Court concluded, would reasonably be seen as targeting the Jewish community insofar as Hitler of course is famous for targeting Jews (and not specifically "Zionist Jews"). The other statements, by contrast, however hurtful or offensive they might have been, appear to be in the context specifically of opposing "pro-Israel" persons rather than the Jewish community as such.

Overall, I think this should be viewed as a pretty sizeable victory for the Jewish community. I might suggest that the fourth statement, too, could be seen as targeting the Jewish community insofar as Orange Grove is apparently well-known as a heavily Jewish neighborhood and its inclusion therefore seems to be specifically about referencing the Jewish community as Jews (that is, just as a Hitler reference is evocative of Jews, not Zionist Jews, Orange Grove is also associated with Jews, not specifically Zionist Jews). I think the Court's assessment of the second and third statements is fair enough; there is no doubt those words represent sharp blows thrown, but they expressly relate to persons who are by some form of action taking a side and are commentary on that side. One need not like or approve of them to think they fall within the bounds of protected speech.

But on the whole, the Court seemed quite thoughtful here. It recognized that words which on face might appear neutral or nonsectarian may, given social context, historical usage, or other considerations, nonetheless evoke hateful tropes; this was very important in avoiding what I thought was some too-quick moves by the appellate court to simply intone the truism that Zionism and Judaism are not synonymous and call it day. On this point, the Court said something that may well be worth framing:

Due regard to this context and history must be observed when dealing with expressions that are allegedly anti-Semitic, because many socially acceptable words may become a proxy for anti-Semitic sentiments. Focusing on the plain text and ignoring the objectively ascertainable subtext would be ignorant, inappropriate and antithetical to what our Constitution demands.

Couldn't say it better. 

In any event -- Masuku and COSATU have been very aggressive in fighting this case (and, I'll be honest, I expected them to prevail). It will be interesting to see how the court-ordered apology plays out. But it appears that, as a legal matter, the Masuku saga has finally come to a close.