Hate Speech – A look at the case of Bongani Masuku

by Daniela Ellerbeck
7 March 2022

Hate speech is fast becoming a concept that almost everyone has heard of, even if they are not sure exactly what it is.  In this article, we are looking at the second judgment concerning this topic to come out of South Africa’s highest court (the Constitutional Court).  This provides an excellent example of the application of law that has now been settled in this critical area, where freedom of expression, a foundational right in our democracy, was previously in grave danger of erosion.

Legal definition of hate speech:
In July 2021, the Court defined “hate speech” for the first time in its Qwelane judgment, which will now be binding upon all lower courts when adjudicating similar matters.  The apex Court described hate speech as expression that “travels beyond mere offensive expression and can be understood as ‘extreme detestation and vilification which risks provoking discriminatory activities against that group’”. (Expression, is something wider than mere speech, and can include written words and/or a person’s conduct.) Importantly, the Court pointed out in Qwelane, “that the expression of unpopular or even offensive beliefs does not constitute hate speech”. 

Masuku – the dispute:
Mr Masuku was taken to court by the South African Human Rights Commission (SAHRC) for four (4) statements, one posted on a website while the other three (3) were made when speaking at a rally at the University of the Witwatersrand (“Wits”).  The SAHRC alleged that the statements were antisemitic and were sufficiently extreme to qualify as hate speech under the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (“the Equality Act”). Importantly, the Equality Act does not criminalise hate speech, rather providing for civil remedies – such as an apology or a fine.

Mr Masuku denied that his statements were aimed at Jews, insisting that the only group to which he made specific reference were Zionists and that Zionism was a political ideology that included various religious groupings. He claimed that the offending statements were based on fact, were true and constituted fair comment on matters of public interest.

The statements:
The First Statement was made in February 2009: “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 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. Every Palestinian who suffers is a direct attack on all of us! Cosatu is a tripartite alliance with the ruling ANC party. A vote for the ANC is a vote for Bongani [sic].”

The Second through Fourth Statements were all made in March 2009 at the Wits rally:
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 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.” … “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 Constitutional Court’s approach:
The matter, having commenced in the Johannesburg High Court (sitting as an Equality Court), was appealed all the way to the Constitutional Court.

In deciding whether Masuku’s statements constituted hate speech, the Court relied upon and reiterated what it had said in its Qwelane judgment just a few months before.  (See FOR SA’s previous article on the facts and findings of the Court in this matter here.)  For this article, it is sufficient to say that in Qwelane, the Court had changed the Equality Act’s prohibition against hate speech (in section 10) to read as follows:
Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words that are based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred”.

In Masuku, the Court applied this (new) reworked section 10 prohibition and found that a reasonable reader would have concluded that the first statement refers to Jews.  The Court also concluded that such a person would also have concluded there was a clear intention to be harmful / incite harm and promote and propagate hatred.  (Here it is important to note that legally, for the purposes of hate speech, harmful means “deep emotional and psychological harm that severely undermines the dignity of the targeted group”.)  The Court, therefore, found that Masuku’s first statement was hate speech in terms of the Equality Act and ordered him to tender an unconditional apology to the Jewish community within 30 days.

However, concerning statements two through four – which were made in the context of a rally at Wits, where the only people opposing Masuku were Jewish, and where Masuku had been subject to much heckling during his speech – the Court found that it was unclear whether a reasonable person would have understood these three statements were referring to Jews.  Therefore, on a balance of probabilities, the statements did not contravene section 10(1).  The “balance of probabilities” is the standard of proof to be met in a civil case, whereas a criminal case (i.e., if hate speech was a crime) would require that the prosecution prove the guilt of the accused “beyond a reasonable doubt”.)

Equality Courts, which are the specialist courts that normally first hear a case of alleged hate speech under the Equality Act, now have clear guidance for determining whether someone has truly committed hate speech. The Masuku judgment shows that the Constitutional Court has settled the approach for hate speech cases under section 10(1).  The Court set out the test and factors to be followed in the Qwelane judgment, and then itself followed this test in deciding both the Qwelane case and now the Masuku case.  This provides excellent legal certainty for lower courts, such as the Equality Courts, who are all bound by the Constitutional Court judgments.

Hate speech allegations that no longer meet the narrow criteria laid out by the apex court should therefore no longer be entertained by lower courts.  Up to this point, many people have been subject to hate speech allegations for speech (albeit possibly hurtful and/or offensive) that did not meet the threshold for the revised definition of hate speech, which has now clearly been laid down.  This will result in more free speech in the public realm, which in turn is a very positive outcome for our democracy.

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Daniela Ellerbeck

Daniela Ellerbeck is an attorney of the High Court of South Africa. She serves as FOR SA’s Legal Advisor and Parliamentary Liaison. For her full bio, see See her full bio here.

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