South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another

In 2009, Mr Bongani Masuku, then Head of International Relations of COSATU, made four public statements (online and at a rally at the University of the Witwatersrand) concerning the Israel–Palestine conflict. The statements included calls to target Zionists, references to making life 'hell' for supporters of Israel, and warnings that harm might occur to South African families linked to the Israel Defence Force. The South African Jewish Board of Deputies lodged a complaint with the South African Human Rights Commission (HRC), alleging that the statements constituted hate speech against the Jewish community. The HRC instituted proceedings in the Equality Court, which found the statements to be hate speech under section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act) and ordered an unconditional apology. On appeal, the Supreme Court of Appeal (SCA) overturned the decision, holding that the statements were protected political speech under section 16(1) of the Constitution. The HRC appealed to the Constitutional Court.

The recusal application was dismissed. Leave to appeal and to cross-appeal was granted. The appeal was upheld in part and the cross-appeal upheld. The order of the Supreme Court of Appeal was set aside. The Equality Court’s order was reinstated with amendments, declaring the first statement to be hate speech under section 10 of the Equality Act and ordering the respondents to tender an unconditional apology to the Jewish community. No costs orders were made.

This case is a leading authority on hate speech and the principle of subsidiarity in South African constitutional law. It clarifies that courts and litigants must apply the Equality Act when dealing with hate speech, rather than relying directly on the Constitution, unless the Act itself is constitutionally challenged. The judgment affirms the broader statutory regulation of hate speech beyond the narrow exclusions in section 16(2) of the Constitution and underscores the constitutional importance of protecting dignity and equality alongside freedom of expression.