Court says SA union leader’s anti-Israel views constitute hate speech

How often when you encounter thinly veiled or indeed naked anti-Semitism are you met with the riposte: “It is not anti-Semitic to be anti-Zionist; it is legitimate criticism of Israel; you are only raising the false charge to stifle debate/criticism of Israel or to smear the left”, and so ad nauseam?

Well, a significant development occurred this week which may have a considerable bearing on the debate around these issues but has been met by near total obliviousness by friend and foe alike. The reason for the near silence in the press and on social media alike is unclear but maybe because it all occurred thousands of miles away from Israel, the UK and the US.

On 29th June Mr. Justice Moshidi, a high court judge, sitting in the South African Equality Court delivered his judgment in what has been referred to as the Bongani Masuku case. Perhaps because it runs to 56 pages of largely legalistic discourse around the relevant legislation it has not made the impact it might otherwise have done.

READ MORE: Court says SA union leader’s anti-Israel views constitute hate speech
As someone with a lifetime in the law behind him coupled with a comparably durable study of anti-Semitism i have been asked to assess the significance of the judgment in an (hopefully) accessible fashion.

THE BACKGROUND

Bongani Masuku is the International Relations Secretary of COSATU ( the SA equivalent of the TUC). In early 2009 at a number of meetings organised by the Palestine Solidarity Campaign he made a number of statements to which the South African Board of Deputies took exception on behalf of the Jewish community.

“As 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 brethren 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. Every Palestinian who suffers is a direct attack on all of us. Cosatu is a tripartite alliance the ruling ANC party. A vote for the ANC is a vote for Bongani” (10.2.2009)

“Cosatu has got members here even on this campus. We can make sure that for that side it will be hell”

“The following things are going to apply : any South African family, i want to repeat it so it is clear for anyone, any South African family who sends his son or daughter to be part of the IDF must not blame us when something happens to them with immediate effect” (5.3.2009 PSC rally at Wits University)

“Cosatu is with you, we will do everything to make sure whether it is at Wits, whether it is at Orange Grove, anyone who does not support equality and dignity, who does not support the 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”

Unlike the UK, South Africa has a unique and dedicated system for dealing with issues of this kind. Following the collapse of apartheid a new constitution was enacted of which section 9 established a Human Rights Commission. It was to this body that complaint was made, the essence of which was that Masuku’s utterances contravened section 10 (1) of what is commonly known as the Equality Act 2000.

That section was introduced to protect individuals and communities in the new South Africa from what is described as (and defined) “hate speech”. It also provides for remedies in the event that such is proven. In due course the HRC did indeed uphold the complaint and requested that Masuku apologise. He categorically refused. The Palestine Solidarity Campaign, who had organised the rally at which some of the ‘impugned statements’ had been made denounced the decision of the HRC as a “pack of lies” and went on to accuse the Jewish community of “constant, frivolous and false accusations of anti-Semitism” (sound familiar?!).

Regrettably the HRC has no powers of enforcement of its decisions. For that the issue has to go before the Equality Court, effectively a dedicated subdivision of the High Court of South Africa, again established post apartheid. The Human Rights Commission and the South African Jewish Board of Deputies brought the case to court. The trial hearing itself took place earlier this year with inter alia David Hirsh being called as an expert witness.

On a side note (but one not without significance) some years ago, and in full knowledge of the statements made by Masuku, the University and College Union together with BRICUP (an organisation comprising a number of prominent left wingers) invited Masuku to the UK to deliver a number of lectures. Efforts to have the invitation cancelled were rejected and dismissed as racist. The annual conference of UCU stood by Masuku and declined to condemn his statements.

THE DEFENCE

Masuku contended his remarks were not hate speech. He was referring to Zionists not Jews, he said; a distinction which in this context the judge was later to describe as having “no merit at all”. His comments were intended only as criticism of Zionism and Israel and were either true or fair comment and thus protected free speech. (The right to free speech is protected under South African legislation but is limited by section 10 as outlined above).

I feel sure that Masuku’s defence is one that the reader will have encountered with a frequency bordering on tedium.

THE JUDGMENT

The judgment surveys the legislation involved and the relevant case law which may be impenetrable to many. For the purpose of this article I summarise the main points which I consider to be of significance:

The judge ruled that the ‘impugned statements’ were “offensive and targeted at the Jewish community”. Note that this judgment was arrived at despite Masuku not even mentioning Jews specifically.

References by Masuku to “Wits” (a campus with a significant Jewish population) and “Orange Grove” (a predominantly Jewish area) also constituted hate speech again despite the word Jews not being mentioned.

The defence that the comments were true and/or fair comment had “no merit at all” and that Masuku’s stated intentions behind the remarks were “wholly irrelevant” and that these comments were “unequivocally a reference to Jews”.

The judge went on to conclude that what was done by Masuku was “to instill detestation, enmity, ill will and malevolence towards Jews in South Africa. It is distinct advocacy of hatred – nothing else”. Powerful stuff!

And finally for good measure… “the bottom line… objectively assessed… must readily be understood to be concerning Jews” and that the argument advanced on behalf of Masuku “that the statements have nothing to do with Jewish people… is without credence”.

(For the sake of completeness i add that the judge has ordered within 30 days Masuku to issue a full and unequivocal apology for the remarks made that the judge clearly found to constitute hate speech. A failure to comply with the order is treated in the same way that any breach of a court order might be with the ultimate sanction for disobedience being imprisonment).

ASSESSMENT OF THE SIGNIFICANCE OF THE JUDGMENT: WHY IS THE DECISION SO IMPORTANT?

a. The Source – To my mind, in the near constant struggle and debate around anti-Semitism, this decision is of considerable significance. Why? The battleground is substantially on the left of the political spectrum. Too often it is (falsely) said that allegations of anti-Semitism are made in order to smear the left and that the makers of the allegations are Tories, Blairites, right wing media etc. This source cannot be so readily dismissed in that fashion. This is not a white, male, public school, Oxbridge educated, High Court Judge whose credibility and motives would doubtless be attacked and undermined if the case had been heard in the Royal Courts of Justice on the Strand. On the contrary, this was the Equality Court enshrined in the constitution of the new post apartheid South Africa as a source of remedy available to those to those affected by racist or sexist discrimination. Who on the left in the UK (or elsewhere) could sensibly seek to undermine the bona fides and impeccable credentials of this court, this judge and this legislation?

b. Anti-Semitic in effect regardless of intention: this judgment clearly establishes that in the judgment of a court it is not necessary to refer specifically to Jews to be guilty of anti-Semitic hate speech. References to ‘Zionists’ or Jewish areas may suffice. It is the context together with an objective assessment of the words used that matters. It follows axiomatically that the stated intention of the maker of the statement is wholly irrelevant. Whether it is anti-Semitic is an objective assessment based on the words used, the context in which they are used and their cumulative effect.

c. ‘Zionist shill’, ‘hasbara agent’: often the reader will have encountered such denunciations. An interesting side issue in the judgment concerned the question of expert evidence. The judge received evidence from David Hirsh called by the SAJBoD and a Dr. Friedman called by the respondent Masuku. It is pertinent to observe that the judge accepted Hirsh as an expert and that the court was assisted by his evidence and how it was given. In marked contradistinction his anti-Zionist/anti Israel ‘opponent’ was referred to in less complimentary terms with the judge questioning his credentials and observing that he “showed that he is partisan which on its own offends the approach and principles to expert testimony”. In other words, the anti-Zionist ‘expert’ was deemed not an expert at all and endeavoured solely to say to say what the side calling him wanted him to say. This is very much worth bearing in mind when this allegation surfaces as inevitably it will.

OVERVIEW

This is a significant and powerful judgment from an impeccable source. It nails the lie that as long as you say Zionist and not Jew it is and cannot be anti-Semitic.

A man supported by and invited by UK left wing organisations has been unequivocally judged to be guilty of racist hate speech.

It demolishes the stock defence that there was no anti-Semitic intent. The test is an objective one. What the maker of the statement says of his intention is irrelevant to the assessment.

In the battle for the truth about antisemitism this powerful judgment should be welcomed, applauded loudly and disseminated widely.