On 16 February 2022, the Constitutional Court of South Africa ruled on a case of hate speech against Jewish people, in an appeal against a judgment of the Supreme Court of Appeal, which overturned a High Court of South Africa’s decision. The two lower Courts had reached contrasting solutions to the dispute.  This concerned four statements posted on a website by Bongani Masuku, a well-known trade unionist, in relation to Israeli-Palestinian feud following the 2008/2009 war in Gaza.

 

The statements evoked a link between the conduct of the Israeli authorities and Nazi Germany: “We struggle to liberate Palestine from the racists, fascists and Zionists who belong to the era of their Friend Hitler”. As such, they had led the Board of Jewish Deputies, an exponential body of the country's Jewish communities, to lodge a complaint with the South African Human Rights Commission. The latter decided to initiate legal proceedings, claiming that it was an act of hate speech under art. 10 of the Equality Act (“Prohibition of hate speech”).

The applicant's argument was fully accepted by the  Court. However, the Supreme Court of Appeal overturned the decision relying on art. 16 of the Constitution (“Freedom of Expression”), thereby ruling out the unlawfulness of the censured conduct. The question was finally submitted to the Constitutional Court.

 

The Constitutional Court held that the decision involved a delicate balance between the rights “indispensable to any healthy constitutional order” (§ 1) to equality, human dignity, on the one hand, and freedom of expression, on the other hand.  The applicable provision was Article 10 of the Equality Act. This, in harmony with the principle of subsidiarity, implies that neither litigants nor the courts can sidestep an act of Parliament that has been enacted to give expression to a constitutional right and instead rely directly on the Constitution itself.

The constitutional legitimacy of Article 10, which introduces stricter limits to the freedom of expression than those codified in the Charter (art. 16.2) had already been positively assessed in the previous Qwelane judgment, which had also provided for a partial reformulation.

 

Thus, the Constitutional Judge recognized that the contested statements referred to “Jewishness” from the ethnic or religious point of view, and not merely political (anti-Zionism). In the Court's opinion, the statements incorporated hatred and offence rendering them unlawful. As a result, the respondent was ordered to extend an unreserved apology to the Jewish community.

 

(Comment by Andrea Cesarini)