South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku: The rejection of the International Holocaust Remembrance Alliance definition

AbstractThe International Holocaust Remembrance Alliance definition of antisemitism is routinely invoked to silence legitimate criticism of the State of Israel. According to the definition, comparisons of Israel to apartheid South Africa are antisemitic. Authoritative and compelling research and reports, which conclude that Israel is an apartheid state, are thus regularly disregarded as antisemitic hate speech. This has severely restricted principled pro-Palestine activism and a just resolution of the conflict. But, in South Africa, for no longer. In the 2022 case of SAHRC v Masuku, the South African Constitutional Court, the country’s apex court, considered whether comments accusing Israel of discriminatory apartheid practices constitute antisemitic hate speech. The Constitutional Court held that it does not. This essay discusses the judgment and its implications on the constitutional validity and political relevance of the Alliance definition.Keywords: IsraelZionismantisemitismanti-ZionismInternational Holocaust Remembrance Alliance Disclosure statementNo conflict of interest was declared by the author.Notes1 M Sfard ‘The Israeli occupation of the West Bank and the crime of apartheid: Legal opinion by Adv. Michael Sfard’ (June 2020) Yesh Din Position Paper 57.2 Briefly, the main arguments advanced as to why Israel constitutes an ‘apartheid state’ is that its existence as a ‘Jewish homeland’, with preferential policies and practices towards Jewish citizens and the Jewish diaspora, is that the consequence thereof is that Palestinian land is expropriated and Palestinians are displaced on a mass scale as a result, Palestinians are unlawfully killed, and Palestinians’ civil liberties are severely curtailed. For more detailed discussion, see Sfard (note 1 above).3 Human Rights Watch ‘A threshold crossed: Israeli authorities and the crimes of apartheid and persecution’ (2021).4 Amnesty International ‘Israel’s apartheid against Palestinians: Cruel system of domination and crime against humanity’(2022).5 See U Ram ‘Critical studies of ethnic nationalism in Israel’ (2007) 2 Middle East Studies Association Bulletin 164.6 R Greenstein ‘Colonialism, apartheid and the native question: The case of Israel/Palestine’ in V Satgar (ed) Racism After Apartheid: Challenges for Marxism and Anti-Racism (2019) 75.7 D Gakunzi ‘Anti-Zionism and anti-semitism – African style’ (2017) 3/4 Jewish Political Studies Review 46; J Judaken ‘So what's new? Rethinking the “new antisemitism” in a global age’ (2008) 4/5 Patterns of Prejudice 531, 555; L Topor ‘The covert war: From BDS to de-legitimization to antisemitism’ (2021) 1 Israel Affairs 168, 175–176. Also see, for example: Anti-Defamation League ‘Allegation: Israel is an apartheid state’ (7 August 2021); K Mokgomole ‘I’m South Africa: Calling Israel “apartheid” puts the BS in BDS’ (28 April 2022) Jewish Report; D Horovitz ‘Amnesty’s “apartheid Israel” calumny’ (3 February 2022) The Times of Israel; S Linde ‘No comparison between Israel, South African apartheid’ (24 February 2022) The Jerusalem Post.8 ‘Anti-semitism’ Merriam-Webster Dictionary tenth ed. (1999). The same understanding of ‘antisemitism’ was adopted by the Broadcasting Complaints Tribunal of South Africa in the matter of Dinur v e.tv (2003) JOL 11645 (BCTSA).9 M Shain The Roots of Antisemitism in South Africa: Reconsiderations in Southern African History (1994); A Lindemann & R Levy Antisemitism: A History (2010).10 International Holocaust Remembrance Alliance ‘What is antisemitism? About the IHRSA non-legally binding working definition of antisemitism’.11 A Dershowitz The Case for Israel (2003); N Shelef Evolving Nationalism: Homeland, Identity and Religion in Israel 1925–2005 (2010); J Pritzker ‘How can I explain why Israel is important to the Jewish people’ The Israel Forever Foundation.12 J Fishman ‘“A disaster of another kind”: Zionism = racism, its beginning, and the war of delegitimization against Israel’ (2011) 3 Israel Journal of Foreign Affairs 75; D Hirsh ‘Hostility to Israel and antisemitism: Toward a sociological approach’ (2013) 5 Journal for the Study of Antisemitism 1401.13 J Butler ‘No, it’s not antisemitic’ (2003) 16 London Review of Books; G Bindman ‘Criticizing Israel is not antisemitism’ (2019) 1 European Judaism 111; N Finkelstein Beyond Chutzpah: On the Misuse of Anti-Semitism and the Abuse of History (2005); J Zine, G Bird & S Matthews ‘Criticizing Israel is not antisemitic—it is academic freedom’ (15 November 2020) The Conversation.14 See, for example: ET Achiume (United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance) ‘Combating glorification of Nazism, neo-Nazism and other practices that contribute to fuelling contemporary forms of racism, racial discrimination, xenophobia and related intolerance’ (2022) paras 74–76; AlJazeera ‘128 scholars ask UN not to adopt IHRA definition of anti-Semitism’ (3 November 2022).15 Sfard (note 1 above); Human Rights Watch (note 3 above); Amnesty International (note 4 above); Zochrot ‘Nakba map’; Jewish Voice for Peace ‘Facing the Nakba’; B’Tselem ‘Statement of solidarity: Israeli human rights and civil society organizations condemn attacks against al-haq’ (15 March 2016); Jewish Voice for Peace ‘40+ Jewish groups worldwide oppose equating antisemitism with criticism of Israel’ (17 July 2018).16 United Nations Economic and Social Commission for Western Asia ‘Israeli practices towards the Palestinian people and the question of apartheid: Palestine and the Israeli occupation’ (2017) Palestine and the Israeli Occupation; I Pappe The Ethnic Cleansing of Palestine (2006).17 South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku 2022 (7) BCLR 850 (CC) (SAHRC v Masuku).18 Ibid paras 3–6. It should be noted, as it is of some relevance, the first statement was made as a blog post, whereas the second to fourth statements were all made at the rally at the University of the Witwatersrand in Johannesburg.19 For a detailed discussion, see: C Mansour ‘Reflections on the war on Gaza’ (2009) 4 Journal of Palestine Studies 91.20 The SAHRC is established in terms of ss 184 and 185 of the Constitution of the Republic of South Africa, 1996, and the SAHRC Act 40 of 2013. It enjoys a range of powers and responsibilities. In this matter, the SAHRC acted in terms of s 13(3) of the SAHRC Act, ‘assisting a complainant and other persons affected thereby […] to secure redress’ by ‘bringing proceedings before a competent court […] on behalf of a person or a group or class of persons’.21 South African Jewish Board of Deputies/Bongani Masuku of Cosatu in re: Statement by Bongani Masuku of Cosatu (2009) file ref. no: GP/2009/0362 (SAHRC).22 The Equality Court is established by chapter 4 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act). In terms of s 21 of the Equality Act, the Equality Court is empowered to determine disputes related to unfair discrimination, hate speech or harassment.23 SAHRC obo SAJBD v Masuku (2017) JOL 38135 (EqCJ) paras 1–2. The test to determine whether a statement falls foul of s 10, and thus constitutes hate speech, per Qwelane v SAHRC 2021 (6) SA 579 (CC), at paras 96 – 97, is an ‘objective test that considers the facts and circumstances surrounding the expression, and not mere inferences or assumptions that are made by the targeted group’. Accordingly, the exercise to be conducted is whether a normative reasonable person, with regard to the surrounding political and social background, and the supporting constitutional rights including the rights to dignity and equality, would reasonably construe the statement to constitute hate speech. See: S v Mamabolo 2001 (3) SA 409 (CC); Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC); Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International 2006 (1) SA 144 (CC); Economic Freedom Fighters v Minister of Justice and Correctional Services 2021 (2) SA 1 (CC).24 SAHRC obo SAJBD v Masuku (ibid) para 30.25 Ibid para 1.26 Ibid.27 The witnesses called by the SAHRC were: ‘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’ (see: Masuku v SAHRC obo SAJBD (2019) JOL 40675 (SCA) para 20).28 Ibid para 54. Buttressing this, counsel for the SAHRC argued that the centrality of Zionism to Jewish ethnicity is particularly so in South Africa, as ‘in the South African context, “Zionist” means “Jew” because the vast majority of South African Jews are Zionist’. See: I Chernick ‘High profile hate speech case heard in South Africa’s Constitutional Court’ (28 August 2019) Jerusalem Post.29 Note 23 above paras 13, 17.30 Director of the Centre of the Study for Democracy at the University of Johannesburg.31 SAHRC obo SAJBD v Masuku EqCJ (note 23 above) para 8.32 Ibid para 60.33 Ibid para 54.34 Ibid para 65.35 N Miltz ‘Cosatu’s Masuku must say sorry for hate speech’ (6 July 2017) Jewish Report; JTA ‘South African official Must Apologize for Hate Speech’ (30 June 2017) Times of Israel; TimesLive ‘Cosatu's Bongani Masuku Must Apologise for Comments Directed at SA Jews’ (29 June 2017).36 Masuku v SAHRC obo SAJBD SCA (note 27 above) para 12.37 Ibid paras 24–32.38 Ibid para 25.39 Ibid paras 15–23.40 I Chernick ‘High profile hate speech case heard in South Africa’s Constitutional Court’ (28 August 2019) Jerusalem Post.41 SAHRC v Masuku CC (note 17 above).42 Ibid paras 53–55.43 J Sharon ‘South Africa Chief Justice: Apartheid past can help foster Mideast peace’ (23 June 2020) Jerusalem Post.44 South African Jews for a Free Palestine ‘Mogoeng’s Palestine stance calls into question his role at the ConCourt’ (3 July 2020) Mail&Guardian; Judges Matter ‘The Mogoeng Mogoeng blowup: What judges say, does matter’ (2 July 2020) Daily Maverick; Staff Reporter ‘Even if 50 million people march, I will not apologise, says Chief Justice Mogoeng Mogoeng’ (6 July 2020) IOL.45 Africa 4 Palestine / Chief Justice Mogoeng Mogoeng (Ref: JSC/819/20); SA BDS Coalition/Mogoeng Mogoeng CJ (Ref: JSC/819/20); Women’s Cultural Group/Mogoeng Mogoeng CJ (Ref: JSC/827/20) 4 March 2021 (JCC).46 SAHRC v Masuku CC (note 17 above) paras 91–92.47 Ibid para 66.48 Although disavowed in her judgment (ibid para 74), it seems possible that Khampepe J may have been swayed by the fact that recusal would have rendered the court inquorate and necessitated a rehearing.49 Qwelane v SAHRC 2021 (6) SA 579 (CC).50 Ibid paras 155–157. In his judgment, with the support of the full bench, Majiedt J traversed each aspect of the s 10(1) inquiry in fine detail. Of particular salience is the correct interpretative approach to the section. In this regard, he found that the section is to be read conjunctively, instead of disjunctively. There is no indication in the text that favours either, however a disjunctive approach, he found, gives rise to an ‘overly extensive and impermissible infringement of freedom of expression’. In respect of ‘hurtful’ as a threshold for hate speech, included as the third prong of the inquiry, Majiedt J found that this unacceptably undercuts the constitutional protection of freedom of expression afforded by s 16(1) of the Constitution. Even on a conjunctive reading of the section, the term ‘hurtful’ is at the least superfluous when read together with the terms ‘harmful’ and ‘hateful’, as it is encompassed within both, and at the most, as an interpretative guide for the rest of the section, diminishes the notion of hate speech to include speech that is only offensive or shocking.51 SAHRC v Masuku CC (note 17 above) paras 122–130.52 Ibid para 2.53 Ibid paras 153, 165.54 Ibid para 156.55 K Polkehn ‘The secret contacts: Zionism and Nazi Germany, 1933-1941’ (1976) 3/4 Journal of Palestine Studies 54.56 Presumably, upon this finding, when the South African Union of Jewish Students’ chairperson shouted the words ‘Heil Hitler!’ during the rally, it also constituted antisemitic hate speech. One wonders why a complaint has not been referred against him for hate speech. See Masuku v SAHRC obo SAJBD SCA (note 27 above) para 29.57 SAHRC v Masuku CC (note 17 above) para 4.58 Ibid para 5.59 Ibid para 6.60 By the IHRA definition, this statement is antisemitic. Whether it is actually antisemitic is discussed below. Ibid para 165.61 SAHRC v Masuku CC (note 17 above) para 166.62 Ibid para 172.63 D Saks ‘“Death and life are in the tongue”: Lessons from the Bongani Masuku hate speech case’ (22 February 2022) Daily Maverick. See also: D Bilchitz ‘Inciting harm against those who hold opposing political views is undemocratic’ (27 August 2019) Daily Maverick.64 Hasbara is the Hebrew term for the State of Israel’s public diplomacy strategy and technique that often relies on propaganda and information warfare.65 S Friedman ‘The real trick to Bongani Masuku’s case’ (24 February 2022) New Frame.66 G Al Ghifari Lukman, O Sharif, M Scott-Cracknell, S Chaya Smith & J Walton ‘Defining antisemitism on UK campuses: Lived experiences of the IHRA definition’ (August 2021) Balfour Project; G Philo, D Miller & M Berry Bad News for Labour: Antisemitism, the Party and Public Belief (2019); L Klaff ‘Why Facebook must adopt the IHRA definition’ (15 October 2020) The Jewish Chronicle.67 Human Rights Watch ‘Human rights and other civil society groups urge United Nations to respect human rights in the fight against Antisemitism: Joint letter to UN Secretary-General António Guterres and Under Secretary-General Miguel Ángel Moratinos’ (3 April 2023); R Gould ‘The IHRA definition of antisemitism: Defining antisemitism by erasing Palestinians’ (2020) 4 The Political Quarterly 825; T Anderson ‘What’s wrong with the IHRA “working definition” of anti-Semitism?’ (29 January 2020) Black Agenda Report; C Balsam ‘Who’s against adopting the IHRA antisemitism definition?’ (9 December 2020) The Times of Israel.68 O Nahmias ‘10 US states adopt IHRA definition of antisemitism on Holocaust Remembrance Day’ (27 January 2022) Jerusalem Post; Z Klein ‘865 entities have adopted or endorsed IHRA definition of antisemitism’ (16 March 2022) Jerusalem Post.69 SAHRC v Masuku CC (note 17 above) para 6.70 Ibid para 21.71 The corollary to this statement is that the State of Israel discriminates against and oppresses the Palestinian people; in other words, it is an apartheid state. Similar existential charges are only a small step away.72 SAHRC v Masuku CC (note 17 above) para 172. It should be noted that, although the principle of stare decisis does not apply, the Broadcasting Complaints Commission of South Africa (BCCSA), in the matter of Kleynhans v SABC2 [2011] JOL 28154, reached a not dissimilar finding. In that matter, the BCCSA had to, inter alia, consider whether reference to Israel could be understood as a reference to Jewish people. The BCCSA, at para 5, disagreed that ‘the programme pertained to Jews in general. It [only] dealt with the tense situation in Israel, and also with the perceptions and frustrations of Ali, a Palestinian pacifist’.Additional informationNotes on contributorsJeremy PhillipsJeremy Phillips, associate, Cheadle Thompson & Haysom Inc