Cape Union Mart victory shows ‘protest cannot extend to harassment’

In a landmark judgment that curtails antizionist hate, the Western Cape High Court has stopped the Palestine Solidarity Campaign (PSC), and its supporters, from defaming, targeting, and harassing Cape Union Mart, its brands, and its executive chairperson, Philip Krawitz.

In a judgment handed down today, 4 September, the court interdicted the PSC and its supporters from making any claim that Krawitz, Cape Union Mart, and its brands are “funding genocide” or the Israeli army, or the conflict in Gaza, and claiming that they are killing children or are complicit in the killing of children.

They are also restrained from publishing in any way defamatory statements saying that Krawitz, Cape Union Mart, and its brands “support a genocide in Gaza” or describing them as “Killers Way”, instead of the brand K-Way.

They also may not claim that Cape Union Mart is associated with the State of Israel in any way.

They are not allowed to prevent access to Cape Union Mart stores and must comply with the Regulations of Gathering Act when protesting.

In her judgment, Judge Judith Cloete says that “the admissible evidence establishes that Krawitz is not funding a genocide or murdering babies, whether directly or indirectly, through the positions he holds in Keren Hayesod or the Jewish Agency for Israel, and that Cape Union Mart is not doing so either”.

Krawitz told the SA Jewish Report that he would like to thank the community for its “extraordinary support, loyalty, and encouragement shown through this challenging time. It reminds us of the strength of our community and the importance of standing united in defence of truth and fairness.”

In a statement, Cape Union Mart and Krawitz said they are pleased with their successful legal application, and “welcome the High Court award of an interdict against continuing defamation and other unlawful conduct by a number of respondents”.

The full court of three judges unanimously held that the relief sought “posed no threat to the free flow of information”. Their statement notes that “the respondents have been making the defamatory statements for years. All they are required to do is to justify those statements or refrain from continuing to publish them”, as Cloete wrote in her judgment.

The protesters had claimed that these utterances were true, alternatively constituted protected commentary. The court rejected these arguments.

“Our High Court action was the option of last resort to get the respondents to simply refrain from making the false claim that the applicants are funding a genocide and are killing babies,” concludes the Cape Union Mart statement.

Cape South African Jewish Board of Deputies (Cape SAJBD) executive director Daniel Bloch described the judgment as a significant legal victory.

“This outcome is an important affirmation that the right to protest and express political views does not extend to harassment, intimidation, or conduct that unfairly targets businesses or individuals,” he says.

The judgment comes after almost three years of vicious, hateful protests outside Cape Union Mart stores, targeting the business and its brands, and defaming Krawitz.

The company and Krawitz tried engaging with protesters, but they continued their harassment to the point that Krawitz and Cape Union Mart took them to court. The case was heard before a full bench in June.

Cloete gave her judgment with Judges Roy Barendse and Constance Nziweni in agreement. She wrote that while the PSC is entitled to its views about the conflict in Gaza, these views are irrelevant to the matter because “we are a court of law, not a court of public opinion”.

She quoted from the Constitutional Court’s Masuku judgment, which gives clarity on the intersection between freedom of expression and hate speech. These paragraphs stated that the court is not called upon to make any pronouncement on the Middle East conflict, but rather to look at the balance between the rights to equality, human dignity, and freedom of speech.

Cloete emphasised what the Cape Union Mart case was not about. It is not about “limiting the respondents’ criticism of the State of Israel”, nor is it about “insulating” Krawitz and Cape Union Mart from public scrutiny and accountability, as the PSC and its supporters suggest. The respondents are also not prevented from assembling in public places or boycotting Cape Union Mart.

Rather, Krawitz and Cape Union Mart were asking for an interdict to prevent the respondents from defaming them and offending the dignity of Krawitz “under the guise of freedom of expression”, wrote Cloete.

She said the PSC relied almost exclusively on “hearsay evidence” to support claims against Krawitz. While it did not deny its statements were defamatory, it said they should be allowed on the grounds of “truth and public benefit” and “public commentary”.

She said that the PSC and its supporters relied on opinions, but “courts must determine the cases before them on proven or uncontested facts, and not opinions, speculation, or inadmissible material”.

There can be “little doubt” that the PSC and its supporters’ statements about Krawitz and Cape Union Mart are defamatory, wrote Cloete. She said the PSC and its supporters “failed to produce direct evidence and have not made any plausible case” to support any sustainable defence.

What they did instead was to “advance defences based on inadmissible hearsay evidence”, and then “seek to strike out those portions of the applicant’s replying affidavits which demonstrated that their allegations were untrue”.

While the PSC relied on a lot of internet downloads, Cloete wrote that “any right-thinking person with an independent mind would be alive to the dangers of relying on what is found on the internet as truth”.

She wrote that “our time-honoured rules of evidence are there for a reason” and if a judge was to depart from those rules to appease a litigant, irrespective of how strong the views of that litigant might be, “our legal system would descend into chaos”.

Cloete emphasised in her text that to defend protected comment, “the facts on which it is based must be true”. But “it has been established that the ‘facts’ upon which the respondents’ statements are based are not true.”

While the PSC put considerable effort into trying to convincing the court that “there is a genocide happening in Gaza”, Cloete wrote that “that is not the issue before us – it is whether Mr Krawitz and Cape Union Mart are funding and facilitating a genocide, including murdering babies”. She determined that they are not.

Krawitz and Cape Union Mart “have a clear right to their reputation and protection of access by customers to Cape Union Mart stores”, wrote Cloete. The purpose of an interdict is to “put an end to conduct in breach of an applicant’s rights.” Both parties will pay their own costs.

Bloch says the judgment is particularly important in the context of the targeting of Jewish individuals and businesses. “No person should be subjected to discrimination, intimidation, or harassment because of their religion, identity, or beliefs,” he says.

The constitutional rights to equality, dignity, freedom of religion, and security “apply to all South Africans – including South Africa’s Jewish community”.

The Cape SAJBD “commends Cape Union Mart for standing firm in defending its rights through the appropriate legal channels”, says Bloch. “This outcome reinforces the importance of the rule of law and sends a clear message that political disagreement cannot become a justification for targeting people because they are Jewish or for holding particular beliefs.”

The South African Zionist Federation Cape Council (SAZF Cape Council) welcomed the judgment. “The PSC’s case rested on the idea that because Mr Krawitz holds positions in Jewish communal and charitable organisations, the company he chairs is somehow complicit in the war in Gaza. The court said this concept does not exist in our law, and the PSC’s own lawyers dropped it during argument,” says SAZF Cape Council executive director Joshua Schewitz.

Had the PSC’s argument succeeded, “any Jewish South African in business could have been held responsible for the actions of the Israeli government”, he says.

Schewitz says the PSC admitted to displaying a swastika superimposed on the Israeli flag, a doctored photograph of Krawitz with devil’s horns, and a poster calling Jews “the synagogue of Satan”.

Because this was not a hate speech case, the court made no finding on these. However, “this material was aimed at a Jewish businessman, everyone who saw it understood what it meant, and it has no place on a Cape Town pavement”, says Schewitz.

Cape Union Mart and Krawitz “spent more than a year taking this matter through the courts while the protests continued. They deserve credit for choosing that route,” he says.

“We hope this victory contributes to more respectful public discourse and behaviour in South Africa, where free and robust political debate can take place without intimidation, discrimination, or the targeting of communities,” said Bloch.