THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

Masuku & Ano v SAHRC (1062/2017) [2018] ZASCA 180 (04 December 2018)

From:
The Registrar, Supreme Court of Appeal

Date:
04 December 2018

Status:
Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.

Today, the Supreme Court of Appeal (SCA) upheld an appeal brought by Mr Bongani Masuku and
COSATU against a judgment of the Equality Court in terms of which certain statements made by Mr
Masuku were declared to be hate speech.
The statements in question were made by Mr Masuku in the context of strong worldwide reaction that
followed military operation launched by the armed forces of the State of Israel on Hamas during
December 2008 and January 2009.
Mr Masuku made the following statements online:
‘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!’
At a gathering held at Wits University, he made the following statements as part of his speech:
‘ . . . COSATU has got members here 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 everyone, any South African family who sends its son or daughter to be part of the Israeli
Defence Force must not blame us when something happens to them with immediate effect . . .’, and
‘. . . COSATU is with you, we will do everything to make sure that 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 we will do something that may necessarily be
regarded as harm . . .’
In line with the finding that the statements amounted to hate speech, the Equality Court ordered Mr
Masuku to apologise to the Jewish Community.
The Supreme Court of Appeal highlighted the importance of freedom of expression in South Africa
and the protection thereof under s 16(1) of the Constitution. It held that the boundaries of free speech
were delimited by s 16 (2) of the Constitution in terms of which, for the purposes of this case, only
advocacy of hatred based on race, ethnicity, gender or religion was excluded from protection. Even if
Mr Masuku’s words and statements were hurtful unpalatable, offensive, or even insulting they
remained within the protected boundaries. The interpretation of the word ‘Zionists’ in the blog
statement as referring to Jewish people in general was incorrect. The statements fell to be interpreted
in the context in which they were made, including the provocative statement that preceded them, both
in the blog and at the Wits gathering. The order of the Equality Court was accordingly set aside.