How has the recent SCA judgment impacted Palestinian solidarity?
Whilst the legal fraternity studies its ramifications, rights groups have welcomed the long overdue ground – breaking judgment delivered by Justice Mabuza in Bloemfontein on 4 December 2018.
A decade long battle ensued between the South African Human Rights Commission (SAHRC) on behalf of the South African Jewish Board of Deputies (SAJBD) and Bongani Masuku of the Congress of South African Trade Unions (COSATU).
The SAHRC and the Equality Count found Masuku’s harsh words of condemnation of Israel’s war in the Gaza Strip during the period December 2008 – January 2009 under the auspices of “Cast Lead” constituting hate speech in contravention of s 10 of the Promotion to Equality and Prevention of Unfair Discrimination Act (Equality Act).
The case was appealed by the former secretary of International Relations (COSATU) from the Equality (High) Court in Johannesburg to the SCA. The historic unanimous SCA judgment vindicated Masuku and has publicly reaffirmed COSATU’s righteous and loyal stance in support of its stalwart. Masuku asserted throughout that religion and ethnicity of the supporters of the State of Israel were of no concern to him or COSATU and that his reference to Zionists connoted adherence to a political ideology rather than a religious or ethnic orientation.
The United Nations fact finding mission report on Cast Lead, found Israel duty bound under the Fourth Geneva Convention to the humanitarian obligations of Gaza without qualification. The report condemned Israel’s disproportionate use of force aimed at the “supporting infrastructure”, which appears to have meant the civilian population.
The mission found blatant disregard for basic international humanitarian law and human rights norms, with regard to treatment of civilians. The first Israeli attack, at 11.30 am on a weekday, when children were returning from school and the streets of Gaza were crowded with people going about their daily business, appears to have been calculated to create the greatest disruption and widespread panic among the civilian population.
SAJBD and the South African Zionist Federation (SAZF) published an open letter in which they shamelessly expressed support for the Israeli actions, whilst there were also members of the South African Jewish community who distanced themselves from the letter of support and condemned the ‘disproportionate use of force’ by the Israeli military.
The courts application to the context of Masuku’s statements, including witness and expert testimony determined the test in line with s 16 (1) and to the boundaries of protection which are delimited in s 16 (2) of the Constitution. This was adjudicated upon contention by legal representatives of the SAHRC disavowing reliance on the Equality Act and 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). It was common cause that s 16 (2) would be applied as an internal limitation of when freedom of speech would be unprotected, and the court found it unnecessary to delve into further constitutional limitation provisions.
Section 16 guarantees the right to freedom of expression. Everyone has a right to freedom of expression, which includes: freedom of press and other media; freedom to receive and impart information or ideas.
The ratio decidendi of the judgment encapsulates: 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 society that can provoke powerful emotions. The bounds of constitutional protection are only overstepped when the speech involves propaganda for war; 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 deplore them, but that does not deprive them of constitutional protection.
Rights Groups have assiduously advocated Zionism being a deconstruct of fundamental racist, colonial and apartheid policies enshrouded in prescripts for support and establishment of a Jewish state. Like apartheid was founded upon unjust and discriminatory policies which was ultimately defeated, so must Zionism and all its constructs.
Israel rooted with fascist Zionist ideologies has through belligerent occupation, left a historical trail of ethnic cleansing, war crimes, stifling sieges, embargoes / naval blockades, displaced refugees, altered demographics in Jerusalem and in occupied Palestine, imposed religious restrictions on holy sites; systematically dehumanised Palestinians in crimes against humanity, violated children’s rights, practised torture / arbitrary detention of minors and detainees in Israeli prisons, making it ironically the starkest contradictory antisemitic proponent against the Jewish faith in human history.
Being mindful of the numerous UN and UNHRC resolutions, advisory rulings at the International Court of Justice (ICJ) and referrals to the International Criminal Court (ICC), the SAHRC must assume its responsibilities as a Chapter 9 institution of its central role in upholding and defending fundamental values entrenched in the Bill of Rights akin to life, dignity, equality, race, colour, creed or religion in the South African constitution.
SAJBD have successfully disguised reprehensible Zionist policies, but the SCA judgment sets an important precedent when protection of freedom of speech may be limited.
Finally, the Zionist shroud of antisemitism and deceit has been unveiled.
Ziyaad Ebrahim Patel is a Johannesburg based attorney, international human rights lawyer and lawfare activist.