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

Mr Bongani Masuku, representing COSATU, made four statements in 2009 regarding the Israel-Palestine conflict. The first statement was made on a blog on 6 February 2009, referring to "racists, fascists and Zionists who belong to the era of their Friend Hitler" and calling to "target them, expose them and do all that is needed to subject them to perpetual suffering". Three additional statements were made at a rally at Wits University on 5 March 2009, including threats that supporters of Israel would face consequences and that COSATU members would "make sure that for that side it will be hell". The South African Jewish Board of Deputies (SAJBD) lodged a complaint with the Human Rights Commission (HRC), alleging the statements constituted hate speech. The HRC brought proceedings in the Equality Court on behalf of the SAJBD.

• Whether the statements constituted hate speech under section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
• Whether the Supreme Court of Appeal erred in applying section 16(2) of the Constitution directly rather than section 10(1) of the Equality Act
• Whether the principle of subsidiarity was violated by the Supreme Court of Appeal
• Whether the test for recusal based on reasonable apprehension of bias was met in relation to Chief Justice Mogoeng
• The proper interpretation of section 10(1) of the Equality Act following the Qwelane judgment
• Whether statements targeting 'Zionists' were based on Jewish ethnicity or religion as prohibited grounds
• Whether costs should be awarded against private litigants in constitutional litigation involving organs of state

The application for recusal was dismissed. Leave to appeal and cross-appeal was granted. The appeal was upheld in part and the cross-appeal was upheld. The order of the Supreme Court of Appeal was set aside. The order of the Equality Court was reinstated with amendments: (1) The first statement was declared to be harmful, to incite harm and propagate hatred, and to amount to hate speech under section 10 of the Equality Act. (2) The complaint succeeded in respect of the first statement only, with no order as to costs. (3) The respondents were ordered to tender an unconditional apology to the Jewish community within 30 days, with the apology to receive at least the same publicity as the offending statement. No order as to costs was made in the Constitutional Court.

The binding legal principles established are: (1) Where legislation has been enacted to give effect to a constitutional right, courts must adjudicate disputes with reference to that legislation rather than relying directly on the Constitution, unless the legislation is frontally challenged as unconstitutional (principle of subsidiarity). (2) Section 16(2) of the Constitution does not create a cause of action for hate speech but merely defines categories of expression not deserving constitutional protection; prohibition of such speech requires legislative enactment. (3) The test for hate speech under section 10(1) of the Equality Act (as reformulated in Qwelane) is objective and requires: (a) words based on prohibited grounds; (b) that could reasonably be construed to demonstrate clear intention to be harmful or incite harm AND to promote or propagate hatred (conjunctive reading). (4) Determination of whether words constitute hate speech is an objective exercise considering who the speaker is, the context in which speech occurred, its impact, and likelihood of inflicting harm and propagating hatred. (5) While courts alone determine meaning of words, expert evidence may assist in understanding context, particularly regarding historical patterns of discrimination and nuanced relationships between identity and ideology. (6) The test for recusal requires cogent evidence of reasonable apprehension of bias that would displace the strong presumption of judicial impartiality. (7) The Biowatch principle protects private litigants asserting constitutional rights from adverse costs orders against organs of state, absent exceptional circumstances such as frivolous or vexatious litigation.

The Court made several non-binding observations: (1) That the findings of the Judicial Conduct Committee are not binding on courts and have no relevance to recusal applications, which are distinct inquiries. (2) That consequences of a court being rendered inquorate through recusal are irrelevant to whether recusal should be granted; the test is solely whether reasonable apprehension of bias exists. (3) That words cannot always be taken at plain meaning and courts must consider objectively ascertainable subtext, particularly regarding expressions with historical discriminatory connotations. (4) That focusing on plain text while ignoring subtext in allegations of anti-Semitism would be "ignorant, inappropriate and antithetical to what our Constitution demands." (5) That there exists a long narrative of anti-Jewish rhetoric in world history culminating in the Holocaust, and this context must inform analysis of allegedly anti-Semitic expressions. (6) That socially acceptable words may become proxies for anti-Semitic sentiments. (7) Cautionary remarks about the power of words to inflict harm, closing with the biblical reference: "Death and life are in the tongue."

This case is significant in South African law for: (1) Reaffirming and applying the principle of subsidiarity, requiring courts to adjudicate disputes using specific legislation enacted to give effect to constitutional rights rather than relying directly on constitutional provisions. (2) Clarifying the test for recusal based on reasonable apprehension of bias, emphasizing the strong presumption of judicial impartiality. (3) Applying the Constitutional Court's interpretation of section 10(1) of the Equality Act from Qwelane, requiring a conjunctive reading and objective test. (4) Providing guidance on distinguishing between anti-Semitism and legitimate political criticism of Israel/Zionism, recognizing that context and historical meaning are critical to this assessment. (5) Confirming the role of expert evidence in hate speech cases to illuminate context, while reserving determination of meaning to the court. (6) Extending the Biowatch principle to protect litigants asserting constitutional rights from adverse costs orders. The judgment represents an important balancing of equality, dignity and freedom of expression rights.