(Author: Mervyn Smith, Vol. 68, No. 3, Chanukah 2013)
On a cold Cape winter’s night in May 1998 a Muslim community radio station, Radio 786, broadcast a programme entitled ‘Zionism and the State of Israel – an in-depth analysis’. This featured an interview with UK academic, Dr Yakub Zaki.
These were some of the extracts from the broadcast:
Speaking about the Holocaust:
… the camps … were brutal labour camps and anybody who alleges anything else is lying … So I accept that 1 million plus Jews died during the Second World War but I dispute the fact that they were murdered, that they were killed by gassing. Those people died like the other people in the camps, from infectious diseases …
… the Germans, of course, felt a very justified resentment against the Jews … … even they, Yad Vashem, have not been able to come up with more than 1,000,000 … so I would like to ask where are those 6,000,000 Jews that the Germans were alleged to have gassed? …
And for good measure, speaking about Jews generally:
The Jews in the First World War were sent to the front – I’m talking of the Russian Jews – with orders to lose the war, and not just to lose it but to lose it disastrously …
In 1914 the Jews were backing both sides of the conflict
…. what was sent through the secret channels – which the Jews had open all during the war – to their brothers, their cousins in Germany, sabotage the German war effort …
… Smuts had the same links to Jewish finance that Rhodes and Milner …
… International Jewry declared war on Germany…. threw South Africa unwillingly into the hands of the Jews and thus the Oppenheimers became the real directors of South Africa’s foreign policy.
Within a few weeks the SA Jewish Board of Deputies had lodged a complaint with the then regulatory authority, the Independent Broadcasting Authority. This set off a series of endless court cases and public hearings that have still not been concluded. In what was to become effectively a monumental struggle between the SAJBD and the Islamic Unity Convention, the owners of the radio station, this case was to go at least twice to the Constitutional Court, six times to the High Court and twice to the Supreme Court of Appeal. It has become the locus classicus of hate speech litigation in this country. It is correct to say that the SAJBD was successful in most of these cases.
Eventually the matter has come to be heard before a tribunal constituted by the Broadcast Monitoring and Complaints Commission of South Africa. This tribunal commenced its hearings in Cape Town in December last year and will continue in March 2014.
Thus far at the hearing, the SAJBD has called as witnesses two eminent academics, one a sociologist and another a historian, as well as a very eminent South African Rabbi and most importantly, the evidence of Eva Schloss, an Auschwitz survivor and the stepsister of Anne Frank. I must say her evidence was riveting. The defence of the radio station, which for many years was not revealed to us (their opposition was always based on procedure rather than substance), now reveals itself as based on the right to freedom of expression (for which you may understand freedom of speech) and a denial that the above extracts constitute hate speech.
What, in fact, does constitute hate speech in South Africa? Our Constitution protects freedom of expression and although there are different provisions under different laws, freedom of expression in South Africa is derived from our Constitution and in particular from Section 16. Section 16(1) states:
(1)Everyone has the right to freedom of expression, which includes –
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d)academic freedom and freedom of scientific research.
But this valuable right which is protected by the Constitution does not extend to –
(2) ………..
(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
It is this speech in Section 16(2) which is therefore unprotected and usually referred to as “hate speech.”
Section 39 of the Constitution provides, (1) When interpreting the Bill of Rights, a court, tribunal or forum- (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom.”
International law should also be referred to and here Article 19 of the Universal Declaration of Human Rights provides, “Everyone has the right to freedom of opinion and expression…” The Constitutional Court has held that, “Freedom of expression lies at the heart of a democracy.” However, the latter has also held that, “The pluralism and broadmindedness that is central to an open and democratic society can be undermined by speech which seriously threatens democratic pluralism itself.”
It must be remembered that our Constitution, given our history of oppression and the violation of human rights, is dignity-centred.
Concerning Section 16(2) the Constitutional Court has stated: “… Section 16(2) therefore defines the boundaries beyond which the right to freedom of expression does not extend.”
In analysing Section 16(2)(c) there are five requirements:
First, the advocacy of hatred. It requires more than ordinary speech or expression.
Secondly, the advocacy specifically of ‘hatred’, not mere dislike or disapproval. It includes stereotyping of people on the basis of immutable characteristics that creates detestation toward them. Advocacy of hatred is effectively to instil detestation, enmity, ill-will and malevolence in another. Mocking or disputing the deeply held convictions of others is unacceptable. The dignity and vulnerability of members of any minority must at all times be protected.
Thirdly, the advocacy must be based on race, ethnicity, gender, religion. This is clear and should not present any particular difficulty.
Fourthly, there must be ‘incitement’ to cause harm. The impugned speech hence cannot simply be an insult.
Fifthly, there must be ‘harm’. Harm is not limited to violence (i.e. physical harm) but can extend beyond into an attack on dignity. The term ‘harm’ is broader than physical harm and includes psychological, emotional and other harm.
Accordingly, and stripping it to its essentials, to qualify as hate speech, the speaker must have: advocated/hatred/based on race, ethnicity, gender or religion/that constitutes an incitement/to cause harm. All five elements must be fulfilled for hate speech to be proven.
Another matter in which the SAJBD is involved, relates to Mr Bongani Masuku, International Relations Spokesperson of the Congress of South Africa Trade Unions (COSATU). During 2009, at Wits University and in various other ways, the following came from Mr Masuku:
Speaking at Wits, Mr Masuku used the expression “make their lives hell…” on four occasions when referring to what COSATU’s intentions were regarding those who supported Israel.
A comment Mr Masuku left on a blog: “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 …”. (The SAJBD contend that he is not referring to Israelis who live several thousand kilometres away, but to South African Jews).
“… all who deny that occupation is wrong must be encouraged to leave South Africa before they infect our society with much more racism …”“… All Jews who have risen above the fascist parochial paranoia of Israel have changed our views on Jews, as we thought all of them are inhumane …”
In the Masuku matter the SA Human Rights Commission upheld the SAJBD’s complaint and found that Masuku was guilty of hate speech. It has now launched a case, defended by Mr Masuku, in the Equality Court in which they seek the following: “The SAHRC has therefore approached this court to make a finding that the statements made by Mr Masuku constitute hate speech and to order that Mr Masuku and COSATU make a public apology to the SAJBD.”
This case should come to court in the next few months.
The SAJBD has also instituted a case in the Equality Court against a notorious purveyor of antisemitism in the form of e-mails to various recipients, including many prominent non-Jews. This matter and other successful like matters are not as high profile as the ones already mentioned and I refer to them merely to show that there has been Board activity in this regard.
I now return to the fundamental cornerstone that freedom of expression is embedded in our Constitutional democracy. It is vital to recognise that it means that criticism of Israel, criticism of Zionism as an ideology or a movement or questioning the legitimacy of the Zionist ideal are quite permissible in South Africa. Combatting these insidious attacks cannot and should not be attempted through a court of law, but rather through the court of public opinion. These views on Zionism and Israel, as unpalatable as they are, are opinions and views to which South Africans are entitled to as freedom of expression and thus they are protected speech.
Writing as a SAJBD member as well, it should always be borne in mind that not every expression of antisemitism needs to be chased down relentlessly. Often the lesser expressions of hate speech that have a limited audience obtain larger exposure simply because the SAJBD has brought a case against the parties involved.
As the two cases detailed above show, it does not follow at all that there will be no opposition to actions brought by us in a court of law. However, this should not be a deterrent if we are convinced of the justice of our cause.
Mervyn Smith is a Cape Town attorney and a former National Chairman of the SA Jewish Board of Deputies. He is a member of the editorial board of Jewish Affairs, to which he has contributed a number of articles over the years relating to the legal profession and the Jewish community in South Africa. This article is adapted from his address delivered at the 47th national congress of the SAJBD on 25 August 2013.
