Masuku and Another v South African Human Rights Commission obo South African Jewish Board of Deputies (1062/2017) [2018] ZASCA 180; 2019 (2) SA 194 (SCA); [2019] 1 All SA 608 (SCA) (4 December 2018)

Masuku and Another v South African Human Rights Commission obo South African Jewish Board of Deputies (1062/2017) [2018] ZASCA 180; 2019 (2) SA 194 (SCA); [2019] 1 All SA 608 (SCA) (4 December 2018)

The Supreme Court of Appeal held that the impugned statements, when interpreted in their full context, did not amount to hate speech as defined by section 16(2) of the Constitution. The court found that references to 'Zionists' and other terms in the statements were directed at supporters of the State of Israel and did not constitute advocacy of hatred based on religion or ethnicity. The court emphasized that offensive, hurtful, or politically inflammatory speech remains protected unless it crosses the constitutional threshold of advocacy of hatred and incitement to harm. The Equality Court erred in conflating political criticism with hate speech and in its assessment of expert evidence....

Citation
[2018] ZASCA 180
Parties
Appellant: Bongani Masuku; Appellant: Congress of South African Trade Unions; Respondent: South African Human Rights Commission obo South African Jewish Board of Deputies
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
4 December 2018
Case Number
1062/2017
Procedural Posture
Civil Appeal / Appeal From Equality Court Judgment
Outcome
Appeal upheld; order of Equality Court set aside and complaint dismissed.
Judges
Lewis, Wallis, Zondi, Dambuza, Matojane
Legal Topics
Freedom of Expression, Hate Speech, Equality Act Section 10, Constitutional Limitation, Advocacy of Hatred
Constitutional Law Civil Procedure Freedom of Expression Hate Speech Equality Act Section 10 Constitutional Limitation Advocacy of Hatred

Case Brief

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Parties

Bongani Masuku

Appellant

Congress of South African Trade Unions

Appellant

South African Human Rights Commission obo South African Jewish Board of Deputies

Respondent

Procedural Posture

Civil Appeal / Appeal From Equality Court Judgment

Legal Issues

  1. 1 Whether the statements made by Mr Masuku amounted to hate speech as defined by section 16(2) of the Constitution.
  2. 2 Whether the Equality Court erred in interpreting the statements as directed at Jewish persons based on religion or ethnicity.
  3. 3 Whether section 10 of the Equality Act unjustifiably limits constitutionally protected freedom of expression.

Ratio Decidendi

The Supreme Court of Appeal held that the impugned statements, when interpreted in their full context, did not amount to hate speech as defined by section 16(2) of the Constitution. The court found that references to 'Zionists' and other terms in the statements were directed at supporters of the State of Israel and did not constitute advocacy of hatred based on religion or ethnicity. The court emphasized that offensive, hurtful, or politically inflammatory speech remains protected unless it crosses the constitutional threshold of advocacy of hatred and incitement to harm. The Equality Court erred in conflating political criticism with hate speech and in its assessment of expert evidence....

Court Disposition

Appeal upheld; order of Equality Court set aside and complaint dismissed.

Orders

  • The appeal is upheld.
  • The order of the Equality Court is set aside and substituted with: '(a) The complaint is dismissed. (b) Each party is to pay its own costs.'