The decade-old bid by the SA Human Rights Commission to have a Cosatu official declared guilty of hate speech over remarks that offended the Jewish community is headed to the Constitutional Court. A SCA ruling that went in favour of Bongani Masuku, Cosatu’s international relations secretary, last December, was based on the wrong doctrine of law and should be set aside, the commission argued in its papers, according to a report in The Star.

The commission has been pursuing the case against Masuku on behalf of the Jewish Board of Deputies (SAJBD) since 2009.

Masuku made remarks that the SAHRC and SAJBD maintained amounted to incitement to cause harm to South African Jews. In one of the statements uttered in response to a blog, Masuku retorted that ‘as we struggle to liberate Palestine from the racists, fascists and Zionists who belong to the era of their Friend Hitler! We must not apologise, 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 until they withdraw from the land of others and stop their savage attacks on human dignity.’

The Star report says Masuku was responding to inflammatory statements in the blog: ‘Even when all the monkeys in Cosatu have died of AIDS (even those who were cured by raping babies), I still won’t return (to SA). Jews should be in Israel supporting Israel – Friends – make Aliya! Do it!' posted an unidentified blogger.

In a ruling supported by four other judges, Judge Nambitha Dambuza concluded that Masuku’s utterances were protected by free speech. Nothing that Masuku wrote or said transgressed those boundaries (of protected free speech) however hurtful or distasteful they may have seemed to members of the Jewish and wider community,’ Dambuza said. ‘Many may deplore them, but that does not deprive them of constitutional protection.

In its papers, the commission rejected the finding that Masuku’s statements were nothing more than robust political speech. Priscilla Jana, the commission’s deputy chairperson, argued in papers that Masuku was effectively calling for harm to SA Jews in retaliation to persecution he believed befell Palestinians during the Gaza War.

Full report in The Star (subscription needed)