The SA Constitution Court ruled that Bongani Masuku must apologize to the Jewish Community for antisemitic hate speech – David Hirsh


The Equality Court judgment of 2017, which enforced the South African Human Rights
Commission’s 2009 finding, that Bongani Masuku’s speech included antisemitic hate
speech, has been reinstated by the supreme court in South Africa.

From our point of view in the UK, the Masuku case remains the clearest single example of
campus antisemitism since the movement for an academic boycott of Israel gained a
foothold in our academic trade unions; and since the members, and the wider culture on
campus and in the unions, rallied round to whitewash the antisemitism of that antizionist
minority, or at least to tolerate it. This mainstreaming of antisemitism on the left paved
the way for Corbyn.

But of course this is first a South Africa story. The history of South Africa shows clearly why
they might choose to treat racist speech and ideas very seriously. People over forty can
vividly remember living under a regime in which ideas of “race”, defined in a pseudo-legal
way by those in power under apartheid, explicitly defined every citizen’s material reality. It
is a different history from that in the US, where an absolutist reading of the First
Amendment, which was written to guarantee freedom of speech, tends to insist that racist
ideas must be free and only racist actions can be addressed in law.

The Constitution Court really had to make two separate determinations today. The first
was whether the things that Bongani Masuku said in 2008 were antisemitic. The second is
whether those kinds of antisemitic statements should be prohibited by law as hate speech.
This is also a story about UK campus antisemitism because in the Autumn of 2009 the UCU
held an invitation only conference in private at which the union activists and officials
could be “educated” to accept the boycott of Israeli universities.

One of the speakers was Bongani Masuku. The Jewish Voice for Labour (JVL) (similar to JVP
in America) of that time on campus was called “BRICUP” – the British Campaign for the
Universities of Palestine; the core of activists were the same people. BRICUP knew what
Masuku had said and it knew that he was under investigation by the South African Human
Rights Commission (SAHRC) for hate speech. SAHRC is the constitutional body set up by
the post-apartheid settlement to guard the antiracist values of the “rainbow nation”.
BRICUP still told UCU to invited Masuku and UCU obeyed.

Masuku was found guilty of antisemitic hate speech by the SAHRC on 3 December 2009.
Masuku spoke at this UCU conference two days later on 5 December 2009. UCU didn’t
care that he was an antisemite; more accurately UCU just denied it.
What had Masuku said that was antisemitic?

On the campus of the University of Witswatersrand (Wits), a leading university in
Johannesburg, in March 2009, and on blogs and at other events at that time, Masuku said
the following at a rally. He said it to people he designated as Zionists:

COSATU has got members even here on this campus; we can make

sure that for that side it will be hell.

COSATU is the Confederation of South African Trade Unions, which had once been a proud
instrument of working class opposition to apartheid. Masuku was its “international officer”.

“All those who deny that occupation is wrong must be encouraged to

leave South Africa before they infect our society with much more

racism.”

He also said at the Wits rally:

“…the following things are going to apply: any South African family, I

want to repeat so that it is clear for anyone, 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…”

“…COSATU is with you, we will do everything to make sure that

whether it’s at Wits University, whether its 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 it means

that we will do something that may necessarily cause what is

regarded as harm…”

Today’s judgment singles out the following in particular as antisemitic hate
speech:

“As we struggle to liberate Palestine from the racists, fascists and

Zionists who belong to the era of their Friend Hitler. We must not

apologize. Every single 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.”

UCU didn’t care. In its first Congress in 2007, UCU had passed as policy the claim that
‘criticism of Israel cannot be construed as anti-semitic.’ It rejected an amendment that
said: ‘While much criticism of Israel is anti-semitic, criticism of Israeli state policy cannot
necessarily be construed as anti-semitic.’

UCU regarded these statements of Bongani Masuku as criticism of Israel and so, by
definition, as not antisemitic.

In 2010, UCU Congress was invited to vote for a motion by which it would ‘dissociate itself
from the Maskuku’s repugnant views’. It did not pass that motion, it refused to dissociate
itself from Masuku’s repugnant views.

At its 2011 Congress UCU began its decade long campaign against what was to become
the IHRA definition of antisemitism because it worried that IHRA might designate UCU as
antisemitic. The campaign accuses IHRA of only pretending to care about antisemitism
but of really trying to silence criticism of Israel.

In South Africa, Masuku and COSATU ignored the SAHRC finding. Compare with the
Corbynite attitude towards the UK EHRC findings on Labour antisemitism in 2021.

In 2017 the SAHRC and the South African Jewish Board of Deputies (SAJBOD) took Masuku
to the Equality Court in Johannesburg, asking the court to enforce the SAHRC judgment of
2009.

David Hirsh was an expert witness in that case. Follow this link for his expert
witness statement.

The Equality Court did indeed enforce the SAHRC finding of 2009. Follow this link for
the judgment.
It said that. It said that

The impugned statements are declared to be hurtful; harmful, incite

harm and propagate hatred and amount to hate speech as envisaged

by the Equality Act…

The complaint against the respondents succeeds with costs.

The respondents are ordered to tender an unconditional apology to

the Jewish community within thirty days…

In December 2018 that judgment was overturned on appeal.
Today, after 13 years of political and legal struggle, the South African Jewish community
has got what it wanted all along. Simply, an apology. A finding that this was hate speech.
And so implicitly, an undertaking not to do it again. It was not looking for damages or even
costs. It did not want, as it was accused of wanting by the BDS campaign, its “pound of
flesh”.

The South African Jewish Board of Deputies has been fighting for 13 years for South
African society formally to designate this as hate speech. And it wanted an apology.
UCU should be held accountable for its decision to host Masuku, to associate itself with his
views, and to defend him for 13 years.
This is David Hirsh’s expert witness statement, which has now been vindicated by today’s
judgment.

More background on the Masuku case is available here.

I am so proud to have had a role in this. A really good day for South Africa.

Antisemitism is always symptomatic of anti-democratic politics.

The Constitution of South Africa was written in dying days of the apartheid regime. The old elite had realised that the game was up and it was busily negotiating itself out of power.

The Constitution was the foundation of the new non-racial South Africa and the fruit of the struggle of the majority for freedom. It was the materialisation of the promises made in the Freedom Charter not to reverse the polarity of the racism but to build a democratic civic South Africa in which everybody would be an equal citizen and in which communities and ethnicities would relate to each other according to law. Without law there could be no democracy and no peaceful living together as equals. The absurd apartheid rules, enforced by naked power, were not laws. And only law could underpin the election of a parliament and a government.

COSATU was a proud element of this transition from oppression to law. It represented the concrete, achievable interests of mainly black working class people. There were once high hopes that it could act as an anchored counterweight to the populist nationalist potential of the ANC. But that wasn’t to be. COSATU did not end up moderating the anti-democratic currents in the ANC, rather, in this respect at least, it ended up feeding it.

The politics of picking on South African Jews, denouncing them as white, and then as white privileged, then as Jewish and white supremacists, was an anti-democratic, Stalinist, proto-totalitarian politics.

But the Constitution Court did democratic currents in South Africa proud today. It simply ruled that vile, clear, explicit and threatening antisemitism was not OK.

It shouldn’t have required a 13 year struggle through four tiers of the justice system. But in the end it came to the right result.

I hope that COSATU does not apologize like a 12 year old boy who has been caught bullying his little sister. I hope that COSATU opens up to the Jewish community in South Africa and apologizes in an engaged and serious way.

I hope that this will begin a new era for COSATU in which the experiences of the mainly black working class can be shared with the experience of the South African Jews, who were themselves chased out of, mainly Lithuania, by oppressors. They can learn from each other. This is of course a tradition that also has a long and proud history in South Africa.

Yesterday was a day for hope and a day of faith in law, and in law as the foundation of democracy.

Nkosi Sikelel’ iAfrika

David Hirsh

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