The real trick to Bongani Masuku’s case

The media simply repeating what the South African Jewish Board of Deputies says is misleading. The Constitutional Court judgment is something of which our country can be proud.

If you are doing the bidding of a government that wants to bully its opponents into silence to deflect charges that it is racist, most of the South African media are your friend.

Readers, viewers and listeners have been told over the past few days that the Constitutional Court ordered Bongani Masuku, a former Cosatu official, to apologise to the Jewish community for remarks attacking supporters of the Israeli state. One outlet went further, publishing a sanctimonious opinion piece by a supporter of that state that wagged a finger at Masuku and droned on about the evils of hate. If you did see this, you probably don’t know that it thoroughly misrepresents the judgment and its importance. To explain why, some background is needed.

The case centred on a verbal battle more than a decade ago between Masuku and supporters of the Israeli state. Masuku responded heatedly to a website that used blatantly racist language to demean Cosatu for its pro-Palestinian stance and an attempt by Israeli state supporters to disrupt a speech he gave. 

The South African Jewish Board of Deputies (SAJBD) – whose title suggests that it represents South African Jews, but which is really a loyal campaigner for the Israeli state – and the South African Human Rights Commission (SAHRC) accused Masuku of hate speech, in this case meaning anti-Semitism or racism directed at Jews. They said his attack on Zionists, those who support a state for Jews only, was really an attack on Jews. Masuku insisted that his target was supporters of the Israeli state and the ideology that underpins it, not an ethnic group. (Full disclosure: I gave evidence for Masuku, although the Constitutional Court did not mention my testimony and so was presumably not influenced by it).

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It is no surprise that the Israeli state’s most active defender in this country went after Masuku. The state and its supporters, aided by most Western powers, hound their opponents throughout the world by labelling them anti-Jewish racists.

While Western governments remain loyal to the Israeli state, their citizens increasingly do not; the view that it is an apartheid state is growing. The most recent example of this is a report by human rights group Amnesty International. Many of those who have labelled the Israeli state racist are Jewish. The Israeli state spends much time and resources trying to bully its opponents into silence. It pressures universities, media outlets, political parties… anyone who criticises the state, however mildly. And its stock weapon is to label its critics as anti-Semites. This is “a trick, we always use it … It’s very easy to blame people who criticise certain acts of the Israeli government as anti-Semitic … that justifies everything we do to the Palestinians,” Israeli former Cabinet minister and leader of the opposition Shulamith Aloni has said.

The “trick” is working partly because it is aided by major governments. Their weapon is the definition of anti-Semitism by the International Holocaust Remembrance Alliance (IHRA), a collection of states including the major Western governments. In its view, racism directed at Jews includes “claiming that the existence of a state of Israel is a racist endeavour” or drawing comparisons between contemporary Israeli policy to that of the Nazis. People who reject Zionism, the ideology that advocates a state for Jews only, are also labelled as anti-Semitic despite the fact that many Zionists are Christians. 

Ideologies and ethnicity

This is absurd. Criticising a state for being racist is not racist. Attacking an ideology is not hating an ethnic group. And, if comparing Israeli policies to those of the Nazis is anti-Semitic, General Yair Golan, deputy chief of staff of the Israel Defense Forces in 2016, is an anti-Semite. He declared in that year that he was frightened by remembering “the revolting trends that occurred … in Germany in particular, some 70, 80 and 90 years ago and finding evidence of those trends here, among us, in 2016”. 

But it is effective in bullying anyone who says the Israeli state is racist. In the major Western countries, academics and journalists have lost their jobs and members have been thrown out of political parties for labelling as racist the Israeli state, which has passed a law decreeing that it belongs to only one ethnic group. Many of the alleged anti-Semites are Jewish. Laws have been passed curbing peaceful boycotts of the Israeli state on the grounds that they too are anti-Semitic. Allegations of racism are made against people who oppose the racism of a state.

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The media reports claim that the Constitutional Court has joined the chorus labelling Israeli state critics as anti-Semites. They do this because they are parroting a statement by the SAJBD. But this is not what the court did.

It did order Masuku to apologise, because it found that one of his statements was hate speech. Its reasoning is unclear. It simply says, in effect, that a “reasonable person” would find that a statement by him comparing Zionists to Hitler was aimed at Jews, not at the Israeli state. It is sometimes critical of arguments made by Masuku and his legal team. But crucially, it finds against Masuku because it says his words were “based on Jewishness as an ethnicity and not on anti-Zionism”.

Jewishness vs Zionism

This means that the court accepts that anti-Zionism is not racism and so is not hate speech. It goes on to find that three other statements by Masuku were not hate speech because they could have been seen as anti-Zionist, not anti-Jewish. It notes that one of these, which denounced parents who send their children to serve in the Israeli military, was “clearly aimed at Israel and those who support Israel”, not at Jews. When it found that Masuku was guilty of hate speech, it did so only because, in its opinion, he was targeting Jews, not the Israeli state.

This rejects the argument that underpinned the case of the SAJBD and the SAHRC, which repeated the “trick” of labelling all opponents of the Israeli state as anti-Semites. They brought expert witnesses to make precisely this point, that verbal attacks on the state were aimed at Jews. It also, by implication, rejects the IHRA definition that has been used as a bludgeon against critics of the Israeli state. To say that this is far more significant than the fact that it found against one of Masuku’s statements is an understatement.

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At a time when, if Aloni is to be believed, a deliberate “trick” is used to silence Israeli state critics in many democracies, South Africa, as a result of this ruling, stands out as a country in which people are free to campaign loudly against not only particular actions of the Israeli state but also against the state itself – as long as they do not express racist attitudes towards Jews.

That could hardly be what the SAJBD wanted, despite its spurious claim of victory. That much of the media have simply repeated the refrain without reading or understanding the judgment is shameful. The fact that the court has refused to join the countries that usually lecture us on democracy by branding anti-racism as racist should be a source of great pride.

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