Is it acceptable to incite harm against those who hold diametrically opposing views? This is a crucial question for the construction of a truly democratic society in South Africa.

Democracies are noisy and argumentative places: there are strongly felt disagreements that take place – yet, to enable an environment in which every individual equally can express their views, it is necessary to ensure that individuals do not fear violent reprisals. It is thus legitimate for democratic societies to place legal limits on a discourse that incites violence or other serious harms against those who hold differing views.

The disagreement between those who support the state of Israel and those who oppose its existence and/or occupation of post-1967 Palestinian territories (and treatment of Palestinians there) is often very heated in South Africa. The identities of individuals are often felt to be at stake in these debates and, as a result, they provoke strong rhetoric and confrontations. This charged context was the setting for an important case that will come before the Constitutional Court this week and help determine the boundaries of legitimate speech in South Africa.

The case concerned statements made by Bogani Masuku, Secretary of the International Relations Arm of Cosatu, at a time of heightened violent conflict between Israelis and Palestinians which left about 1,200 Palestinians and 13 Israelis dead. In light thereof, there were various heated online engagements that took place. In one of these, Masuku wrote that “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…”.

A month later Masuku addressed a rally organised by the Palestine Solidarity Committee at the University of the Witwatersrand. During the course of his address, Masuku made a number of statements which included the following: “‘… any South African family who sends its son or daughter to be part of the Israel Defence Force must not blame us when something happens to them with immediate effect” and “Cosatu is with you, we will do everything to make sure that whether it is at Wits, whether it is at Orange Grove, anyone who does not support equality and dignity, who does not support 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…”

The South African Jewish Board of Deputies lodged a complaint with the South African Human Rights Commission and contended that these statements targeted the Jewish community and constituted hate speech. Masuku responded by saying he had no intention to target anyone for their religion or ethnicity – what he targeted was a political ideology, namely Zionism.

The Human Rights Commission found that the statements made by Masuku did constitute hate speech against the Jewish community. This finding was confirmed in a judgment of the Equality Court which ordered Masuku to make an unconditional apology to the South African Jewish Board of Deputies.

This judgment was overturned in a very troubling judgment of the Supreme Court of Appeal (SCA). Apart from failing adequately to capture the existing law relating to hate speech, the judgment found that, since Masuku had targeted “Zionists” instead of Jews, his speech did not constitute hate speech. Further, Masuku’s speech, while hurtful and inflammatory, remained within the bounds of constitutional protection. This judgment is deeply flawed for several reasons – I elaborate on one central defect below.

The SCA appeared to find that incitement to harm individuals for holding a political ideology is legitimate as opposed to incitement on the grounds of religion or ethnicity. Now, it is far from clear that Masuku’s comments were not targeted at Jews – his identification of a specific neighbourhood and the practice of sending children to fight in Israel’s army would, in all likelihood, include only Jews in its net.

However, even if Masuku only intended to target “Zionists”, his speech should not be tolerated in a constitutional democracy. Masuku clearly and expressly said that individuals who hold a particular ideology that differed from his should be harmed. Yet, it is simply unacceptable in a democracy to advocate hatred or to incite people to harm others with different political views.

If individuals are subject to the incitement of physical violence – or serious social or psychological consequences – against them for holding their opinions, they will either change them or not express them. Preserving the ability of individuals to have different views – even on matters that are controversial – is central to our valuing of freedom as well as the capacity of individuals to decide for themselves on matters of belief and conscience. Advocacy of hatred and incitement of harm against those who differ also inhibits contestation and thus is inherently undemocratic in its very nature.

The SCA seemed worried that hate the speech provisions, if interpreted too expansively, can inhibit free speech. Nothing I have said undermines the importance of free speech nor the imperative to construe its limits expansively: at the same time, the incitement of harm against individuals or groups – whether because of their ethnicity or religion or because of their opinions and beliefs – should not be permitted in a democracy.

Robust challenges of points of view are completely acceptable: if Masuku had utilised the platforms he occupied to advocate for the rights of Palestinians, to highlight injustices perpetrated by Israel, and to critique the perspectives of those who supported Israel’s actions, there could have been no complaint. The problem was that he went further: he made threats and suggested that supporters of Israel should be harmed. That goes beyond what should be permissible free speech in a democracy.

It is to be hoped the flaws in the SCA judgment will be corrected by the Constitutional Court. DM

This opinion piece is based upon an academic critique of the SCA judgment which is published in the 2019 Journal of South African Law.