South African Human Rights Commission on behalf of South African Jewish Board of Deputies v. Bongani Masuku and Congress of the South African Trade Unions, South African Constitutional Court, [2022] ZACC 5, 16 February 2022

Evocation of a link between the conduct of the Israeli authorities and Nazi Germany (“we struggle to liberate Palestine from the racists, fascists and Zionists who belong to the era of their Friend Hitler”). This amounts to an act of hate speech in violation of Article 10 of the Equality Act.

Art. 16 of the Constitution of South Africa
Art. 10 of the Equality Act

 

1. The rights to equality, human dignity, and the right to freedom of speech and expression are all indispensable to any healthy constitutional order. These rights carry unique and troubled pasts interwoven into the fabric of apartheid history. In this constitutional dispensation, they are inextricably interconnected with what it means to be a citizen of a democracy, free to live a life in a condition of dignity and humanity, free to live a life in a condition of dignity and humanity.

2. The first step in a hate speech enquiry in terms of section 10 of the
Equality Act consists in evaluating whether a reasonable, objective and informed person, on hearing the words, would perceive them to be racist or derogatory. In this light, referring to “Jewishness” under an ethnic or religious profile, and not merely political (anti-Zionism), in a way which shows the intent to be harmful or incite harm and propagate or promote hatred, amounts to an unlawful act of hate speech.