When Judges Decide What Zionism Means: Defamation Law Becomes a Speech Code

When Judges Decide What Zionism Means: Defamation Law Becomes a Speech Code

By Ziyad Motala

The Cape Union Mart judgment is a recent Western Cape High Court decision arising from an application by Cape Union Mart and its executive chairperson, Philip Krawitz, to restrain pro-Palestinian protesters from making statements linking them to Israel, the war in Gaza and genocide. The judgment contains an unusually candid warning about itself. Justice Cloete, writing for a unanimous bench with Justices Nziweni and Barendse, acknowledged that even the amended relief proposed by Cape Union Mart and Krawitz was “too broad for comfort”. The Court rejected that formulation, but then fashioned an order of its own that remains strikingly broad. The resulting order does considerably more than prohibit an unproved allegation that money flowed from Krawitz or Cape Union Mart to the Israeli army. It places whole categories of political judgment beyond the protesters’ reach: that Cape Union Mart is “associated with the State of Israel in any way”; that Krawitz is “funding genocide”, the Israeli army or the conflict in Gaza “in any way”; that the applicants are complicit in the killing of children; or that they support genocide.

There is something constitutionally peculiar about judges recognising that the relief sought is uncomfortably broad and then responding by fashioning an order that still sweeps deeply into political expression. Judicial unease is usually a reason for restraint, particularly where the subject is political speech. Here it became little more than an observation before the Court proceeded to police the vocabulary in which protesters may condemn a public figure’s political commitments.

That is the real difficulty with the judgment. Cloete, Nziweni and Barendse were entitled to determine whether the evidence established that Krawitz personally funded the Israeli Defence Force. Courts decide facts. What they were not entitled to do was convert an evidentiary failure on that question into judicial authority over the political meaning of Zionism, “support”, “association” and “complicity”. Those are not merely entries in a ledger. They are also the language in which citizens make moral and political judgments.

The distinction matters because Krawitz is hardly a private citizen accidentally swept into an argument about Israel. The judgment itself records his prominence, his senior positions in Keren Hayesod and the Jewish Agency for Israel, and his dispute with the protesters over the meaning of Zionism. He is entitled to defend those commitments. His critics are entitled to condemn them. What he is not constitutionally entitled to is a judicial shield against their moral and political consequences. Yet that is precisely what three judges in Cape Town have fashioned.

South Africa should be particularly wary of such judicial indulgence. This is a country whose political history was made, in considerable part, by people refusing to describe an ideology in the soothing language preferred by its adherents. Apartheid called itself separate development. Its opponents called it racial domination. The Constitution we eventually produced would be a curious document indeed if its freedom of expression guarantee now permitted judges to decide not merely whether a factual accusation is false, but which vocabulary citizens may employ when confronting a political ideology they regard as oppressive.

The evidentiary issue can be dealt with quickly. The respondents relied extensively on newspaper articles, reports and internet material without properly laying the basis for their admission under the Law of Evidence Amendment Act 45 of 1988. Cape Union Mart and Krawitz, by contrast, produced affidavits from officials of Keren Hayesod and the Jewish Agency for Israel denying that the organisations fund the Israeli government or the Israeli Defence Force and explaining the projects to which donations associated with Krawitz had gone. The Court was therefore entitled, on the record before it, to find that the respondents had not proved the literal proposition that Krawitz or Cape Union Mart was directly funding the IDF or paying for military operations in Gaza.

But that should have been the beginning, rather than the end, of the freedom of expression enquiry. A failure to prove that a businessman transferred money to an army is not proof that protesters may not describe his politics, affiliations or activities as support for a political project. Nor does it establish that words such as “complicity”, “support” and “association” suddenly become statements of accounting fact.

That distinction matters particularly in Krawitz’s case. He is not an accidental participant dragged unwillingly into a controversy with which he has no public connection. The judgment itself records his prominent standing in South African business and Jewish communal life, his chairmanship of Keren Hayesod South Africa, his involvement in the international structures of Keren Hayesod and the Jewish Agency for Israel, and the award he received for what Keren Hayesod described as his long-term leadership and “unswerving devotion to Israel”.

The judgment also records something important about Zionism. Krawitz does not, on the Court’s account, disavow it. Rather, he takes issue with the respondents’ interpretation of Zionism and says that he does not subscribe to that interpretation. The Court also records his leadership in Keren Hayesod and JAFI, while the evidence of Keren Hayesod’s own chief financial officer describes the organisation as funding, among other things, “Zionist education programmes”.

That distinction is revealing. Krawitz is plainly entitled to understand Zionism as he wishes and to defend it in humanitarian, national or historical terms. His critics are equally entitled to examine the ideology through international law, its history, institutions and consequences and reach a radically different conclusion. No political ideology comes with a constitutional right to be described only in the terms preferred by its adherents.

Indeed, the Constitutional Court has already cautioned against collapsing Zionism and Jewish identity into one another. In South African Human Rights Commission v Masuku, a case arising directly out of speech concerning Israel and Palestine, the Court recognised that criticism of Zionism can in some circumstances operate as a proxy for antisemitism. But it equally warned that the fact that many Jewish people identify with Zionism cannot mean that every reference to Zionism becomes susceptible to legal censure. Zionism and Jewish identity are not legally interchangeable categories.

Once that distinction is accepted, an important constitutional consequence follows. Zionism is a political ideology and is therefore a legitimate object of political criticism. The fact that its adherents regard it as a movement of national self-determination does not preclude critics from regarding it as an ideology of ethnic preference, domination or exclusion with a history of ethnic cleansing and now genocide.

There is no eccentric fringe theory at work here. Human Rights Watch has concluded that Israeli authorities pursue a policy designed to maintain Jewish Israeli domination over Palestinians and that, in the occupied Palestinian territory, this has resulted in the crime against humanity of apartheid. Amnesty International has reached an apartheid conclusion across a broader geographical frame. B’Tselem, a leading Israeli human rights organisation, describes the system between the Jordan River and the Mediterranean Sea as one organised around Jewish supremacy and calls it apartheid. One may agree with those conclusions or reject them. What cannot seriously be maintained is that describing the Israeli political order in those terms lies outside recognised international political and human-rights discourse.

That is crucial to understanding what protesters are constitutionally entitled to do. They did not need the Western Cape High Court to declare Zionism to be apartheid. They needed the Court to recognise their right to hold that view.

Suppose a protester reasons as follows. Krawitz holds senior positions in organisations devoted to Israel and Zionist causes. He has raised funds through those organisations. He has publicly expressed a deep commitment to Israel. I regard the political order sustained in Zionism’s name as a system of ethnic domination or apartheid. I therefore regard Krawitz as supporting that political order and as morally complicit in what is being done to Palestinians, including the crime of genocide.

One may think that reasoning exaggerated. One may consider it unjust to Krawitz. One might emphatically reject its premise about Zionism. But those reactions do not convert the conclusion into a false statement of fact.

That is the point of the Constitutional Court’s decision in The Citizen v McBride. Protected political comment does not have to commend itself to a judge. It need not be impartial, balanced or moderate. Cameron J’s majority judgment makes the point with unusual clarity: opinion may be extreme, unjust, unbalanced, exaggerated and prejudiced, provided the factual foundation is established and the opinion is honestly held, without malice on a matter of public interest. The defendant must justify the facts. He need not persuade the judge that the comment itself was fair.

That makes the Cape Union Mart Court’s use of McBride particularly curious. At paragraph 56, the Court sets out what it describes as the “well-established” requirements of protected commentary and cites paragraph 159 of McBride. What it does not tell the reader is that paragraph 159 comes from Ngcobo CJ’s separate judgment. That omission is especially conspicuous because, when the Court immediately cites the restrictive reasoning of Zondo J in DA v ANC, it carefully identifies that reasoning as coming from a minority judgment.

The point is not that Ngcobo CJ formulated an entirely different four-part test. He did not. The significance lies in what Cameron J’s majority judgment said those requirements actually mean in a constitutional democracy. At paragraphs 80 to 83, Cameron J stressed that the traditional label “fair comment” is misleading. Protected comment need not be fair, balanced, moderate or even just in the ordinary meaning of those words. It may be extreme, unjust, unbalanced, exaggerated and prejudiced. What matters is that it is an honestly held opinion, without malice, on a matter of public interest, resting upon true facts. The defendant must justify the facts. He need not justify the comment.

That constitutional explanation matters enormously here, because the speech before Cloete, Nziweni and Barendse consisted in substantial part of political accusation, parody, moral condemnation and deliberate exaggeration. Yet the Court takes the bare requirements from Ngcobo CJ’s separate judgment while giving remarkably little attention to the majority’s emphatic instruction about the latitude those requirements afford political opinion. Judicial citation is not decorative. A court that invokes McBride while overlooking the part of McBride most directly concerned with protecting extreme and exaggerated opinion presents a strangely truncated picture of what the Constitutional Court actually decided.

The Cape Union Mart judgment recites the requirement that protected commentary must rest upon true facts. That is orthodox law. The difficulty lies in identifying which “facts” actually require proof. If the opinion is that Krawitz supports an oppressive Zionist political project, the relevant factual foundation may include his leadership positions, fundraising, public statements, institutional affiliations and the political character of the organisations with which he is associated. It does not follow that protesters must first prove that Krawitz personally bought a bullet for the IDF before they may form a moral judgment about what his political commitments signify.

This is also where the judgment’s treatment of Zionism becomes constitutionally troubling. Krawitz disputes the respondents’ interpretation of Zionism. But why should his interpretation govern the permissible boundaries of his critics’ speech? The Court was entitled to decide whether Krawitz funded the IDF. It was not entitled to decide what Zionism means for everyone else.

The distinction between fact and opinion is also considerably less mechanical than the judgment suggests. The Court relies heavily on passages from Zondo J in Democratic Alliance v African National Congress requiring comment and fact to be sufficiently distinguished. To its credit, the judgment does identify those passages as coming from the minority. But that only sharpens the difficulty. Having acknowledged that it is invoking the losing side of the Constitutional Court’s reasoning, the Court then proceeds as though that restrictive approach supplies the governing framework, without seriously engaging the markedly more speech-protective reasoning that carried the case. A minority judgment may of course be persuasive. What it cannot do is quietly become the centre of gravity for a lower court while the reasoning that actually produced the Constitutional Court’s order is treated as peripheral.

The actual result in DA v ANC points in the opposite direction. The statement at issue was hardly genteel: “The Nkandla report shows how Zuma stole your money.” Five judges regarded that as opinion rather than a literal factual accusation of theft, while two more reached the same result through an analysis recognising that fact and opinion often lie on a continuum. The important constitutional lesson was therefore not that political speech must be tidily sorted into factual and evaluative boxes before it can be protected. It was that political language is often compressed, accusatory and interpretive, and that courts must resist the temptation to read it with the literalism of a pleading. That is the lesson the Cape Union Mart judgment notices least and needs most.

That insight matters when a placard says, “K-Way Killers Way”, or protesters chant, “Philip, Philip, what do you say, how many children have you killed today?” The judgment subjects these expressions to the machinery of defamation law. But no ordinary observer at a political demonstration would understand the chant as testimony that Krawitz personally travelled to Gaza and killed children with his own hands. The language is accusatory, offensive and deliberately exaggerated. That is precisely what protest rhetoric often is.

In a separate concurring judgment in Laugh It Off, Sachs J made the contextual point powerfully. Courts must not decontextualise satire and political mockery and then attribute excessive weight to the literal meaning of the words. Expression must be understood in the actual setting in which it occurs. Parody exists to prick, provoke and unsettle. Three judges of the Western Cape High Court are not appointed arbiters of good taste.

Other democracies recognise the same elementary distinction. In the United States, the Supreme Court confronted the issue in Greenbelt Cooperative Publishing Association, Inc. v Bresler, where opponents described a developer’s lawful negotiating tactics as “blackmail”. Taken literally, the word accused him of a crime. Taken in the context of heated public controversy, it was treated as rhetorical hyperbole rather than a literal accusation of criminal conduct. British law similarly protects honestly held opinion where its basis is indicated and an honest person could have held it on the underlying facts: Defamation Act 2013, s 3. These systems differ from ours, but they share a constitutional intuition worth preserving: political language cannot always be tested as though every slogan were evidence under oath.

South Africa should understand that better than most countries.

Imagine Cape Town in 1985. A prominent businessman openly identifies with Afrikaner nationalism. He chairs organisations committed to sustaining South Africa internationally, raises money for projects inside the country, including for victims of attacks by Umkhonto we Sizwe, and publicly declares his devotion to the South African political project. His lawyers later demonstrate conclusively that none of his own donations went to the South African Defence Force.

Anti-apartheid activists nevertheless picket his stores. Their placards say, “He supports apartheid.” Another says, “His company profits while he supports apartheid.” A third calls him “complicit in apartheid’s killings”. Protesters chant, “How many children did apartheid kill today?”

Now suppose a court correctly finds that a further allegation, “He personally paid R5 million to the SADF”, cannot be proved. A sensible court would dispose of that allegation and stop there. The Cloete-Nziweni-Barendse approach, however, invites something rather more troubling: having established that no cheque reached the SADF, the judges would then proceed to regulate the protesters’ political vocabulary, forbidding them from saying that the businessman “supports apartheid”, is “associated with apartheid South Africa in any way”, or is “complicit” in the suffering apartheid produced.

Put in South Africa’s own historical setting, the reasoning becomes difficult to state without making it sound ridiculous. Three judges would have converted an accounting question into a licence to supervise political language. The businessman proves that no money reached the SADF; the Court rewards him with protection from being called a supporter of apartheid. One would have thought that the absence of a cheque proved the absence of a cheque. Cloete, Nziweni and Barendse appear to have discovered that it can also settle the moral meaning of an ideology.

Apartheid’s defenders did not generally describe themselves as racists seeking racial domination. They spoke of separate development, cultural identity, national self-determination and the protection of communities. Opponents were not constitutionally obliged to accept the regime’s preferred description of its own ideology. They were entitled to examine its institutions, consequences and distribution of power and call it apartheid.

The same principle must apply today irrespective of whether judges agree with the protesters’ analysis of Zionism. Krawitz is entitled to say that their conception of Zionism is wrong. The judgment records that he does exactly that. But his interpretation of the ideology cannot determine the permissible boundaries of his critics’ interpretation of it. Political actors do not acquire a veto over the vocabulary in which their politics may be criticised.

Krawitz’s prominence reinforces the point. South African law does not impose the American rule requiring public figures to prove “actual malice”. Khumalo v Holomisa discussed that American doctrine but did not adopt it into South African law. South African courts have nevertheless recognised that those who enter public life must tolerate a wider range of criticism. In Mthembi-Mahanyele, the Supreme Court of Appeal observed that politicians and public figures retain their reputational rights but must be more resilient to the “slings and arrows” of public controversy.

That principle surely has particular force where the controversy is not imposed upon a person by gossip about his private life, but arises from his own public ideological commitments and institutional leadership. Krawitz may defend Zionism. His critics may condemn it. What he is not constitutionally entitled to is a judicial shield against the moral and political consequences of that commitment. Yet that is precisely what the three judges have fashioned.

There is a separate difficulty with the remedy. The Supreme Court of Appeal has warned that injunctions against future defamatory speech are granted only infrequently because they restrain expression before the legality of the future speech can be assessed. Herbal Zone insists that an applicant seeking such relief must show that it is clear that the respondent has no defence.

The High Court accepts the caution but then reasons that “prior restraint” can logically apply only to matters not already in the public domain. That conception is much too narrow. An order forbidding someone tomorrow from saying something he said yesterday is still an order regulating tomorrow’s speech. More importantly, the Cape Union Mart order does not merely prohibit the verbatim repetition of one proved false factual assertion. It prohibits whole categories of future political characterisation.

The breadth is most obvious in the prohibition on saying that Cape Union Mart is “associated with the State of Israel in any way”. “Association” is not a bank transfer. It is an elastic word encompassing relationships, public identity, leadership, branding, politics and perception. The same difficulty arises in prohibiting the claim that the applicants “support a genocide”. “Support” is not synonymous with “fund”. A court may find that Krawitz did not finance the IDF without having answered the entirely different political question of what his affiliations and ideological commitments signify.

The Constitutional Court’s more recent corporate defamation jurisprudence should make courts particularly cautious. In Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others, arising from litigation by mining companies against environmental activists, the Court recognised the chilling effect that defamation litigation can exert upon participation in matters of public concern. In the companion judgment, Reddell and Others v Mineral Sands Resources (Pty) Ltd and Others, it held that a trading corporation’s reputational interests do not occupy the same constitutional position as human dignity, particularly where the speech forms part of public discourse on matters of legitimate public interest.

That does not mean Cape Union Mart has no reputation worth protecting. Nor does it mean protesters have a constitutional licence to invent financial transactions. It means that when a large corporation asks a court to silence a political boycott campaign, the precision of the remedy matters profoundly.

The answer on appeal therefore need not be extravagant. Courts may restrain obstruction. They may enforce the Regulation of Gatherings Act 205 of 1993. They may deal with a demonstrably false assertion that a particular person transferred money to the Israeli army. None of that requires turning “support”, “association”, “complicity” or a protest slogan into statements whose permissible meaning is to be settled from the bench.

The deeper error of Cloete, Nziweni and Barendse is that they have taken a dispute about evidence and allowed it to become a judicial licence over political meaning. Krawitz says the protesters misunderstand Zionism. The respondents say his Zionism implicates him morally in a system they regard as ethnic domination, apartheid and, in Gaza, genocide. A court may adjudicate whether he wrote a cheque to the IDF. It cannot, consistent with a serious commitment to freedom of expression, award him ownership of the meaning of the ideology he supports.

That proposition should be especially obvious in South Africa. Imagine an apartheid-era businessman telling protesters that they had misunderstood separate development, that his donations went only to hospitals and civilian victims of violence, and that he personally gave nothing to the SADF. Proof of those facts might have defeated an allegation about financing the army. It would have been preposterous for a court then to forbid activists from calling him a supporter of apartheid or complicit in its consequences. Proof that no cheque went to the SADF would dispose of the cheque. It would not dispose of politics.

Yet that is where this judgment leads. Its most troubling feature is not that three judges protected Krawitz against an allegation that could not be proved. Courts do that every day. It is that they travelled from there to an order protecting him against political characterisations that arise from his own public commitments and from a contested ideology whose meaning remains the subject of profound international dispute.

South Africa’s constitutional democracy was not built by people who waited for courts to approve their adjectives. Boycotts, placards, ridicule, moral accusation and economic pressure were among the instruments by which apartheid was delegitimised. Many of the people targeted by those campaigns insisted that their motives were benign, their organisations charitable and their ideology misunderstood. History did not require their critics to use the vocabulary they preferred. Neither should constitutional law.

Cloete, Nziweni and Barendse were entitled to decide whether Philip Krawitz funded the Israeli army. They were not entitled to decide what Zionism means for everyone else.

The protesters did not need three judges to agree with their understanding of Zionism. They needed three judges to understand that, in a constitutional democracy, they are free to argue it.

That is why the speech restrictions in this judgment should be reversed.

When Judges Decide What Zionism Means: Defamation Law Becomes a Speech Code