THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1062/2017
In the matter between:

BONGANI MASUKU
FIRST APPELLANT
CONGRESS OF SOUTH AFRICAN
TRADE UNIONS
SECOND APPELLANT

and

SOUTH AFRICAN HUMAN RIGHTS COMMISSION
obo SOUTH AFRICAN JEWISH BOARD OF
DEPUTIES
RESPONDENT

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

Bench:
Lewis, Wallis, Zondi and Dambuza JJA and Matojane AJA

Heard:
13 November 2018

Delivered:
04 December 2018

Summary:
Constitutional Law – right to freedom of expression – principles on
protection of freedom of expression re-stated – whether statements excluded from
protection under s 16(1) of the Constitution – statements to be interpreted in the context
within which they were made – only statements within the purview of s 16(2) of the
Constitution are not protected.

_____________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Gauteng Division, Johannesburg (Moshidi J sitting as the Equality
Court):

The appeal is upheld.
The order of the Equality Court is set aside and substituted with an order in the
following terms:

‘(a)
The complaint is dismissed.

(b)
Each party is to pay its own costs.’
Each party to pay its own costs of the appeal.
______________________________________________________________________

JUDGMENT
______________________________________________________________________

Dambuza JA (Lewis, Wallis and Zondi JJA and Matojane AJA concurring):

Introduction

[1] On 26 March 2009 the second respondent, the South African Jewish Board of
Deputies (SAJBOD), lodged a complaint with the first respondent, the South African
Human Rights Commission (Commission), alleging that certain statements made by the
first appellant, Mr Bongani Masuku, amounted to hate speech. On assessment, the
Commission formed a view that the statements did amount to hate speech. So did the
Equality Court, sitting in Johannesburg (Moshidi J), when the complaint was referred to
it. This appeal, with leave of the Equality Court, is against that judgment.

Background
[2] The events from which these proceedings arose occurred on 6 February and 5
March 2009. They were preceded and fuelled by intensification, during December 2008
to January 2009, of the protracted conflict between Israel and Palestine in the Middle
East, particularly the launch, shortly before then, of a military operation against Hamas
in the Gaza Strip. This resulted in the death of more than seven hundred people. These
events sparked strong worldwide reaction, (both condemnatory and supportive) in
different parts of the world, including South Africa.

[3] In relation to these events, SAJBOD and the South African Zionist Federation
(SAZF) published an open letter in which they expressed support for the Israeli actions.
On the other hand, another open letter signed by 315 members of the South African
Jewish community, distancing themselves from the letter of support and condemning
the ‘disproportionate use of force’ by the Israeli military, was also published.

[4] During this period Mr Masuku was the secretary of the International Relations
arm of the Congress of South African Trade Unions (COSATU). COSATU also fiercely
opposed the Israeli actions. A protest march against what was viewed as Israeli
invasion of the Gaza Strip took place under the banner of COSATU and the Palestine
Solidarity Committee (PSC), to the headquarters of SAJBOD and SAZF in
Johannesburg.1 COSATU also participated in an on-going campaign of solidarity with
the Palestinian people, including pickets, marches and press releases, all aimed at
putting pressure on the South African Government to act in support of the Palestinian
people.

[5] An online war of words erupted alongside these activities on a blog called ‘It’s
Almost Supernatural’.2 On 6 February 2009 the following statement appeared on the
blog:

1 The march took place even though permission, which had been sought from the City of Johannesburg
was refused.
2 This blog was hosted at: https://supernatural.blogs.com.

‘Even when all the monkeys in Cosatu have died of Aids (even those who were cured by raping
babies), I still wont return [to SA]. Jews should be in Israel supporting Israel – Friends – make
Aliya! Do it!’
A further comment posted read:
‘Let us bombard the COSATU offices with phone calls to let them know our anger. It is hard[er]
to ignore phone calls than email. Maybe we should start a policy that Israel-loyal Jews refuse to
employ COSATU members in retaliation to COSATU’s evil actions.’

[6] On the same day Mr Masuku posted the following statement on the blog:
‘Hi guys,
Bongani says hi to you all 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.’ (Emphasis supplied on the
portion allegedly constituting hate speech)

[7] On 5 March 2009 Mr Masuku made the following three statements as part of his
speech at a gathering at the University of the Witwatersrand (Wits):
‘ … 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 …’
Other statements, also extracted from Mr Masuku’s speech at Wits, were included in the
complaint. However, only the three stated above were found to amount to hate speech
by the Equality Court.

[8] After the complaint was made, the Commission formed a preliminary view that Mr
Masuku’s statements constituted hate speech, prohibited under s 16(2) of the
Constitution, and s 10 of the Promotion of Equality and Prevention of Unfair
Discrimination Act No 4 of 2000 (the Equality Act).3 It was also of the view that the
statements probably violated the complainant’s right to equality guaranteed under s 9 of
the Constitution. More specifically, the Commission was of the view that the second and
third statements, made during the speech at Wits University, were directed at Jewish
students and Jewish families respectively and that the reference to people at Wits
campus and Orange Grove in the third statement was directed at ‘Jews’. Regarding the
statement posted on the blog the Commission concluded that those who were to be
targeted, as proposed, were South African Jews.

[9] In his response to the Commission’s preliminary view and invitation to respond,
Mr Masuku admitted to having made the statements. He explained how he was
repeatedly heckled whilst giving his speech at Wits. He also explained that his
statements were directed at supporters of the State of Israel from different ethnic and
religious backgrounds, rather than to Jewish students. He asserted that the religion and
ethnicity of the supporters of the State of Israel were of no concern to him (and
COSATU) and that his references to ‘Zionists’ connoted adherence to a political
ideology rather than a religious or ethnic orientation.

[10] In concluding that the statements made by Mr Masuku amounted to hate speech
and referring the matter to the Equality Court, the Commission was of the view that the
statements were offensive and unpalatable to society; that they were of an extreme
nature in that they advocated that the Jewish community should be despised, scorned,

3 Section 10(1) of the Equality Act reads as follows:
‘Subject to the provisio in section 12, no person may publish, propagate, advocate or communicate words
based on one or more of the prohibited grounds, against any person, that could reasonably be construed
to demonstrate a clear intention to –
(a) be hurtful;
(b) be harmful or to incite harm;
(c) promote or propagate hatred.’

ridiculed and thus subjected to ill-treatment because of their religious affiliation. It found
that a prima facie case of hate speech had been established.

[11] The Equality Court granted an order that:
’65.1
The impugned statements are declared to be ‘hurtful, harmful, incite harm, and
propagate hatred, and amount to hate speech as envisaged in s10 of the Equality Act No 4 of
2000;
65.2
The complaint against the respondent succeeds with costs;
65.3
The respondents are ordered to tender an unconditional apology to the Jewish
Community within thirty (30) days of this order, or within such other period as the parties may
agree. Such apology must at least receive the same publicity as the offending statements’.

The Issues
[12] At the core of this appeal is the Equality Court’s interpretation of hate speech. Mr
Masuku contended that the Equality Court erroneously reasoned that because most
people who support or ‘would most likely support’ Zionism, and those who most likely
would have been offended by the statements are Jewish, therefore the statements were
directed at people of Jewish religion or ethnicity. He contended that they were rather
directed at the conduct of the State of Israel, and the fact that most Jewish People might
support such conduct did not transform the statements into ones based on religion or
ethnicity.

[13] Although the Commission and the complainants’ reliance on the offensive and
hurtful nature of the statements continued in the complainants’ Heads of Argument,
during the hearing of the appeal counsel for the Commission disavowed the reliance on
the Equality Act, accepting that the statements, as any other form of speech, would be
excluded from protection (as hate speech) under s 16(1) of the Constitution only if they
fell foul of s 16(2) thereof. However, the retraction of the reliance on the Equality Act left
intact the underlying substantive arguments that had formed the basis of the claim. In
that argument it was contended that the statements amounted to unambiguous threats
of harm and violence, and amounted to hate speech directed at members of the Jewish
Community.

[14] The disavowal was properly made. There is cause for concern that the provisions
of s 10 of the Equality Act have the effect of condemning speech that is protected under
s 16(1) of the Constitution. In their book The South African Constitutional Law: The Bill
of Rights the writers Cheadle, Davis and Haysom examine the provisions of s 10 of the
Equality Act. They suggest that the formulation of s 10 of the Equality Act is ‘a most
unfortunate convoluted formulation’ and that it may well constitute an unjustified
limitation of the freedom of expression in the context of a constitutional order ‘committed
to robust deliberation’ for these reasons:
‘It extends the prohibited grounds contained in s16(2) of the Constitution in that the latter
provision refers to race, ethnicity, gender or religion only, and uncouples hurt and harm from
incitement to cause harm. While the extension of the prohibited grounds can doubtless be
justified in terms of the limitation clause as contained in section 36, particularly in the context of
the prohibited grounds contained in section 9(3), the wider formulation adopted in section 10(1)
will also have to be saved in terms of section 36. The combination of an extension of the
prohibited grounds beyond those contained in section 16(2) and the dispensing with the
requirement of causation creates the potential for challenge’.
The contention that a more extensive definition of hate speech can be justified under s
36 is at the least debatable as s 16(2) provides an internal limitation clause.

The Law
[15] Consideration of the issues that arise in this appeal will be confined to the
Constitution. Section 16 thereof guarantees the right to freedom of expression. The
section reads as follows:
‘(1)
Everyone has a right to freedom of expression, which includes-
(a)
freedom of press and other media;
(b)
freedom to receive and impart information or ideas;
(c)
freedom of artistic creativity; and
(d)
academic freedom and freedom of scientific research.
(2)
The right in subsection (1) does not extend to –

(a)
propaganda for war;

(b)
incitement of imminent violence; or

(c)
advocacy of hatred that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm.

[16] Since the advent of our Constitution, the right to enjoy freedom of expression is
one that has been fiercely promoted and jealously guarded in this country. Section 15 of
the Interim Constitution protected both ‘speech’ and ‘expression’.4 The use of only the
wider concept, ‘expression’ in s 16 of the Constitution, has been interpreted as
signifying a deliberately expansive approach to constitutional protection of speech and
expression. None of the parties in this appeal take issue with the liberal approach to
protection of freedom of expression as demonstrated in the various judgments of the
courts around the country.

[17] In South African National Defence Union v Minister of Defence & another5
O’Regan J highlighted the importance of the right to freedom of expression as follows:
‘Freedom of expression lies at the heart of a democracy. It is valuable for many reasons,
including its instrumental function as a guarantor of democracy, its implicit recognition and
protection of the moral agency of individuals in our society and its facilitation of the search for
truth by individuals and society generally. The Constitution recognises that individuals in our
society need to be able to hear, form, and express opinions and views freely on a wide range of
matters.’

[18] In The Citizen 1978 (Pty) Ltd & others v McBride,6 the Constitutional Court
upheld a defence of fair comment in an action for defamation based on reports which
referred to the plaintiff as a murderer even though he had been granted amnesty in
terms of s 20 of the Promotion of National Unity and Reconciliation Act 34 of 1995. The
court remarked that comment on matters of public interest is protected under the
guarantee of freedom of expression and that the values and norms of the Constitution
determine the boundaries of what is protected. The courts cannot prescribe what people
may or may not say. The right to freedom of expression is an essential component of

4 ‘Expression’ being a wider concept than ‘speech’. See Cheadle, Davis and HaysomThe South African
Constitutional Law: The Bill of Rights 2 ed (2018) at 11-3.
5 South African National Defence Union v Minister of Defence & ano 1999 (4) SA 469 (CC) para 7.
6 The Citizen 1978 (Pty) Ltd & others v McBride [2011] ZACC 11; 2011 (4) SA 191 (CC); 2011 (8) BCLR
816 (CC).

dignity and continued improvement in the quality of people’s lives. As the Constitutional
Court said in Democratic Alliance v African National Congress & another:7
‘It [the right to freedom of expression] is valuable for its intrinsic importance and because it is
instrumentally useful. It is useful in protecting democracy, by informing citizens, encouraging
debate and enabling folly and mis-governance to be exposed. It also helps the search for the
truth by both individuals and society generally. If society represses views it considers
unacceptable they may never be exposed as wrong. Open debate enhances truth finding and
enables us to scrutinise political argument and deliberate social values.’

[19] However, the Constitution recognises that the right to freedom of expression
must be limited in certain circumstances for the protection of other rights, particularly the
right to dignity. Thus, s 16(2)(c) of the Constitution qualifies the extent and scope of the
right to freedom of expression. Of relevance to this case is that under that sub-section
advocacy of hatred is excluded from protection where such hatred (1) is based on race,
ethnicity, gender or religion and (2) constitutes incitement to cause harm. A hostile
statement is not necessarily hateful in the sense envisaged under s 16(2)(c). Hence the
decision of this court in Hotz & others v University of Cape Town8 that:
‘A court should not be hasty to conclude that because language is angry in tone or conveys
hostility it is therefore to be characterised as hate speech, even if it has overtones of race or
ethnicity’.

[20] Before I consider the question whether the statements made by Mr Masuku
amounted to hate speech, it is necessary that I advert to one other issue – the extensive
evidence led in the Equality Court, particularly the expert evidence led with the intention,
it was said, to explain the difference between ‘anti-Zionism’ and ‘anti-Semitism’. Dr
David Hirsch, a lecturer in Sociology at Goldsmiths University of London, Dr Gregory
Stanton, a research professor and an expert on Judaism and Zionism, and Mr Benjamin
Shullman, a lay person of Jewish origin, who attended the gathering at Wits where Mr
Masuku gave the speech, all testified on behalf of the Commission. Professor Steven

7 Democratic Alliance v African National Congress & another [2015] ZACC 1; 2015 (2) SA 232 (CC); 2015
(3) BCLR 298 (CC) at para 122.
8 Hotz & others v University of Cape Town [2016] ZASCA 159; [2016] 4 All SA 723 (SCA); 2017 (2) SA
485 (SCA) para 68.

Friedman, then the Director of the Centre of the Study for Democracy at the University
of Johannesburg, testified as Mr Masuku’s witness. Dr Hirsch, Dr Stanton and Prof
Friedman testified as expert witnesses.

[21] This evidence was of minimal, if any, assistance to the resolution of the dispute
as to whether Mr Masuku’s statements amounted to hate speech. At best it revealed
that academics are not in agreement as to the meaning of the terms.

[22] It is also necessary to deal with certain adverse findings made by the Equality
Court against Prof Friedman. That court found it difficult to accept of Prof Friedman’s
evidence. This is because, in the judge’s opinion, Prof Friedman had not demonstrated
‘convincingly’ that he was an expert on issues of ‘anti-Semitism’, and its proper inter-
relationship with ‘anti-Zionism’ in the context of the broader Israeli-Palestinian conflict’.
Although he had ‘immense interest in these matters [they had] not been the focus of his
academic career. In addition he [had] somewhat showed that he [was] partisan which
on its own, offend[ed] the approach and principles to expert testimony’. The basis for
this finding was that Prof Friedman had previously supported a campaign for the
boycott, sanctions and disinvestment campaign against Israel (BDS campaign), and
was part of a group of academics that had made submissions to the University of
Johannesburg to terminate its association with the Ben-Gurion University of Israel.

[23] Other than highlighting Prof Friedman’s general activism in relation to Israel, the
judge did not refer to any evidence showing bias, or unreliability, either in the content of
his evidence, or in any other evidence. Neither did he make any negative finding
regarding his independence, integrity, candour, knowledge of the subject, intellect, and
reputation. If the basis for the Equality Court’s assessment of Prof Friedman was
anything to go by, Dr Hirsch’s membership of ‘Engage’, an activist group that was
engaged in mobilising against the academic boycott of Israel, would also disqualify him
as a witness in this case. This finding by the Equality Court was therefore unjustified.

The Blog

[24] Turning to the use of the term ‘Zionists’ in the blog statement by Mr Masuku, the
Shorter-Oxford dictionary defines the term ‘Zionism’ as ‘a movement for (originally) the
re-establishment and (now) the development and protection of a Jewish nation that is
now Israel’. The Merriam-Webster Dictionary describes it as ‘an international movement
originally for the establishment of a Jewish national or religious community and later for
the support of modern Israel’. And the Cambridge Advanced Learner’s Dictionary and
Thesaurus defines the term as ‘a political movement that had as its original aim the
creation of a country for Jewish people, and that now supports the state of Israel’.

[25] It bears mention that both of the Commission’s experts and Mr Shullman defined
the term ‘Zionism’ broadly in the same terms as the dictionary definitions, and were in
agreement that not all Zionists are Jewish and not all Jewish people are Zionists. Dr
Hirsch defined Zionism as historically referring to a political or ideological movement for
the establishment of a Jewish state, although, after the establishment of the State of
Israel in 1948, it no longer has that meaning. He did not give a definition of the current
meaning, other than to say that it has a different meaning to different people. Prof
Friedman defined ‘Zionism’ as a political ideology, which is founded on a belief in a
state for Jews only. He explained that prior to 1948 the ideology focused on working for
creation of the state, and thereafter on defending its existence as an ethnic state. And
Mr Shullman’s evidence was that at the core of Zionism is the support for the existence
of a Jewish state in the Middle East and that the term is not synonymous with the word
‘Jew’. Nothing in these definitions and explanations conveys identification on the basis
of ethnicity or religion. The furthest one can take the matter is that because very many
Zionists are Jewish and very many Jews may be Zionists, the two concepts may, in
some circumstances, become blurred if care it not taken to distinguish between them.

[26] Further, none of the other offending terms ‘racists’, ‘fascists’ and ‘friends of
Hitler’, either on their own or within the statement, connote religion or ethnicity. The
terms may be irrational, offensive or ever insulting. Threatening or unsavoury words in
the statement such as ‘bitter medicine’, and ‘perpetual suffering’ are only metaphorical.
Even if ethnicity or religion was implied in the blog statement, neither the offensive

words nor the blog statemetn could be considered advocacy of hatred or incitement of
harm for the purpose of s 16 (2)(c) of the Constitution, particularly in the context in
which they were made. The context in which the statement was posted on the blog has
been outlined above.

The second to fourth statements
[27] These statements also fell to be interpreted within the context of the speech and
the circumstances attendant at the place and time they were made. 9 The meeting at
which Mr Masuku gave his speech at Wits was part of a global annual event called
Israel-Apartheid week. It was not in dispute that, as the title of the event conveys, it is
intended to highlight the similarities between the State of Israel and the apartheid state,
and to call for action similar to that which was taken by the international anti-apartheid
movement. It is not difficult to imagine the atmosphere that prevailed at this gathering.
That tense atmosphere would have been exacerbated by the presence of a small, but
vociferous, group of Jewish students, who repeatedly heckled Mr Masuku during his
speech.

[28] The theme of Mr Masuku’s speech was how practical solidarity with Palestinians
could be demonstrated. In his speech he referred to the boycott, divestment and
sanction campaign against Israel, refusal by SATAWU workers to offload goods arriving
at Durban from Israel, working to ensure that other countries in Southern Africa should
also not allow exports to and imports from Israel, efforts to remove Israel from the
International Trade Union Confederation, an academic boycott and refusal of a visa for
an Israeli sportsman.

[29] On Mr Shullman’s own evidence, before Mr Masuku had uttered any offensive
statement, he (Mr Shullman) shouted the words ‘Heil Hitler!’ at him. The transcript of
portions of the speech, the contents of which were not in dispute, showed that indeed
Mr Masuku was heckled and booed on numerous occasions during the speech. On the
transcript it was the hecklers who interjected with the words ‘Jews’. For example, at one

9 S v Mamabolo (E TV, Business Day and the Freedom of Expression Institute intervening) [2001] ZACC
17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC).

instance, when Mr Masuku stated that other people deserved dignity, peace, food etc, a
heckler shouted ‘including Jews’. Mr Masuku’s explanation that his utterances had
nothing to do with Jews but were directed at supporters of the State of Israel find
support in the transcripts. Nothing in the content of the speech shows that it was
anything more than a political speech.

[30] Much of the argument made in the Commission’s Heads of Argument and before
us on whether a statement amounts to hate speech was drawn from the approach in
some foreign jurisdictions. Reliance was placed, for example on R v Keegstra.10 Such
reliance on foreign jurisprudence must be considered carefully in the interpretation of
this and similar rights. As Langa DCJ said in Islamic Unity Convention v Independent
Broadcasting Authority & others11 our courts need to take account of:
‘… [the] severely restrictive past where expression, especially political and artistic expression,
was extensively circumscribed by various legislative enactments. The restrictions that were
placed on expression were not only a denial of democracy itself, but also exacerbated the
impact of the systematic violations of other fundamental human rights in South Africa.’

[31] In summary, the starting point for the enquiry in this case was that the
Constitution in s 16(1) protects freedom of expression. The boundaries of that protection
are delimited in s 16(2). The fact that particular expression may be hurtful of people’s
feelings, or wounding, distasteful, politically inflammatory or downright offensive, does
not exclude it from protection. Public debate is noisy and there are many areas of
dispute in our society that can provoke powerful emotions. The bounds of constitutional
protection are only overstepped when the speech involves propaganda for war; the
incitement of imminent violence; or the advocacy of hatred that is based on race,
ethnicity, gender or religion, and that constitutes incitement to cause harm. Nothing that
Mr Masuku wrote or said transgressed those boundaries, however hurtful or distasteful
they may have seemed to members of the Jewish and wider community. Many may
deplore them, but that does not deprive them of constitutional protection.

10 R v Keegstra (1990) 3 CRR (2d) 193.
11 Islamic Unity Convention v Independent Broadcasting Authority and others [2002] ZACC 3; 2002 (4) SA
294; 2002 (5) BCLR 433 para 25.

[32] In the result, the following order is made:
The appeal is upheld.
The order of the Equality Court is set aside and substituted with an order in the
following terms:

‘(a)
The complaint is dismissed.

(b)
Each party is to pay its own costs.’
Each party to pay its own costs of the appeal.

_________________
N Dambuza
Judge of Appeal

APPEARANCES

For Appellants:

A de Kok SC

Instructed by:

Cheadle Thompson & Haysom Inc., Braamfontein

McIntyre van der Post, Bloemfontein

For Respondent:

C Bester (with him M Seape and J Chanze)

(heads of argument drawn also by S Scott)

Instructed by:

Cliffe Dekker Hofmeyer Inc., Sandton

Rossouws Attorneys, Bloemfontein