Concourt probes appeal court’s U-turn on hate-speech
Prominent human-rights organisations this week argued in the Constitutional Court that the Supreme Court of Appeal (SCA) had made a mistake in overturning the judgement that found Bongani Masuku guilty of hate speech.
These organisations, represented by the country’s top legal counsel, included the South African Human Rights Commission (SAHRC), the South African Holocaust & Genocide Foundation, The Psychological Society of South Africa, the Rule of Law Project, and the Nelson Mandela Foundation.
The arguments in the landmark hate-speech case covered the carrying and burning of swastikas, code words, the difference between Zionists and Jews, freedom of speech, and what constitutes hate speech.
The case goes back to 2009, when Masuku, then head of international relations at Cosatu (the Congress of South African Trade Unions), made a number of highly inflammatory statements in the wake of violence on the Gaza border.
“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,” Masuku said in February 2009.
“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. Every Palestinian who suffers is a direct attack on all of us.”
The majority of his statements occurred during Israel Apartheid Week 2009 on the University of the Witwatersrand’s east campus during a lunch-time lecture hosted by the Palestinian Solidarity Committee (PSC) and the Young Communist League.
“Cosatu has got members here even on this campus; we can make sure that for that side it will be hell,” Masuku said. “Any South African family who sends its son or daughter to be part of the Israel Defence Force must not blame us when something happens to them with immediate effect.
“Cosatu is with you, we will do everything to make sure that whether it is at Wits, whether it’s at Orange Grove, anyone who does not support equality and dignity, who does not support rights of other people, must face the consequences even if it means that we will do something that may necessarily cause what is regarded as harm.”
Masuku reportedly said that Jews who continued to stand up for Israel should “not just be encouraged but forced to leave South Africa”.
He was found guilty of hate speech by the SAHRC and the Equality Court, and ordered to apologise. Instead, Masuku and Cosatu took the matter to the SCA, which overturned the Equality Court judgement.
This week’s case in the Constitutional Court was the culmination of 10 years of legal action by the South African Jewish Board of Deputies (SAJBD) in dealing with what it’s certain is hate speech by Masuku. It wants him to be made accountable for threats against Jewish students at Wits, as well as the inflammatory comments made against the community.
Experts agree the case is broader than just about the Jewish community, it’s about the fundamental interpretation of the law prohibiting hate speech in South Africa.
One of the main contentions in the case is whether Masuku’s speech targeted Zionists or Jews. The SAHRC insisted that Masuku’s use of “coded language” could not be interpreted in any other way other than being directed at the Jewish community.
Counsel for the SAHRC, Christiaan Bester, said “Zionist” in the South African context means “Jew” because the vast majority of South African Jews are Zionist. He said that when Masuku used the word “Zionist” it was “coded language” for Jews.
Advocate Wim Trengove, counsel for the Holocaust & Genocide Foundation said, “He spoke of Zionists. We submit that, in South Africa at a rowdy political meeting, Zionist in the context meant Jews.
“He didn’t identify them merely as Zionists, he spoke of ‘friends of Hitler’ – what else could that mean? It means Jews and nothing else,” he said.
Trengove further submitted that Masuku had referred to the suburb of Orange Grove which is known as being Jewish.
“We cannot analyse this in isolation, we must take each factor together, and we can reasonably conclude that he targeted Jews,” he said.
Judge Johan Froneman asked Trengove if one wanted to attack or criticise the government of Israel, what would one say? To which he replied, “You speak of the government and its supporters.”
Carol Steinberg, junior counsel for the Holocaust & Genocide Foundation explained to the court that the South African Jewish community was smaller in number than the membership of Cosatu.
“Anti-Semitism is a fact in contemporary South Africa, and Jews are a vulnerable community,” she said.
She explained to the court that at a march in the run-up to the speech Masuku gave at Wits, people brandished swastikas and burned a swastika outside a synagogue.
“A swastika has nothing to do with a war in Gaza. It is the symbol of the extermination of the Jews in Europe,” she said.
Steinberg said that swastikas also made their way onto Wits campus. The swastika is the ultimate emblem of hatred of Jews, and is banned in a number of European countries.
The Holocaust & Genocide Foundation said in its heads of argument, “Genocide begins with words. Words have consequences. Hate speech, repeated hundreds and thousands of times, becomes incitement to commit genocide. It creates a culture of genocide.
“We analyse Mr Masuku’s speech in the light of the learning on how, through the millennia, leaders have used words, and in particular proxy words, to prepare the ground for persecuting Jews.”
It said Masuku’s words were “likely to have had the effect of inciting violence against South Africa’s Jewish minority”.
“Speaking to an audience that largely doesn’t differentiate between Zionists and Jews, and avoiding using the word ‘Jew’, he [Masuku] drew on age-old anti-Semitic rhetoric and proxy words to convey to his audience that Jews should be visited with immediate harm,” according to the heads of argument.
“He did so at a moment in time in which, worldwide and barely 70 years after the Holocaust, anti-Semitism is on the rise. Even in South Africa, it’s not uncommon for protesters against Israel to brandish swastikas and march on synagogues.”
The SAHRC contended that the appeal court was obliged to analyse Masuku’s statements through the lens of the Equality Act, and not under the auspices of the Constitution. It also contended that the appeal court erred by not considering expert evidence by witnesses such as British anti-Semitism expert David Hirsh.
Anne-Marie De Kok, the counsel for Masuku and Cosatu, said that Masuku’s speech constituted political speech, and did not demonstrate hatred of a religious or ethnic group.
She said Masuku’s statements should be viewed in the context in that he was subjected to provocation and baiting on a sensitive political issue that resulted in his speech being reactive rather than advocating hatred.
“When Masuku addressed students at Wits, there were Jewish students on the sidelines heckling that he was a racist, and one shouted, ‘Heil Hitler!’ When you are in a political meeting heckling, you should not be surprised when a heated retort comes your way.”
She said that words can be codes or proxies for other words, but on the facts of this case, that’s not what happened.
The Rule of Law Project said there should be strong protections for free speech and, among other things, a court could not take into account the race of the speaker in determining hate speech. The same rules should apply regardless of the race of the person.
Chief Justice Mogoeng Mogoeng presided over the proceedings. Judgement is pending.
Couple caught in crossfire of attempted mall robbery
A young couple attempted to flee the scene of a botched armed robbery at Melrose Arch on Easter Monday, only to get caught in a hail of bullets.
Today, Brandon Regenbaum, 27, lies in hospital in a serious but stable condition under heavy sedation following a five-hour long operation to reconstruct his jaw and repair his mouth. He was shot in the face after robbers hastily fled the upmarket lifestyle mall where they had tried unsuccessfully to rob Elegance Jewellers.
His girlfriend of three years, Lorian Blechman, 25, witnessed the whole scene and luckily escaped unharmed.
The couple, who were due to leave for a holiday in Umhlanga Rocks that day, met for breakfast at Tashas. They left the mall in separate vehicles and found themselves unwittingly in the middle of a gun battle between fleeing suspects and the mall’s security guards.
“The robbers were running towards the Virgin Active Gym. We quickly took a different exit to avoid them, it was scary,” said Blechman.
They beckoned to each other to take an alternative exit near the Daytona shop in a bid to dodge the fleeing suspects. To their horror, they were then confronted by the robbers – who had made it to their escape vehicles – further down the road on Athol/Oaklands Drive in the direction of the N1 highway.
The couple could see the suspects’ vehicles in their review mirrors, so they instinctively swerved out of the way to allow them to speed past. There were loud gunshots, after which Blechman noticed Regenbaum wasn’t driving. She frantically called him to ask why.
He told her, “Babe I love you, but I’ve been shot and I’m going to die.”
Traumatised and still in shock, Blechman told the SA Jewish Report that she jumped out of her car and ran to him.
Speaking from hospital, she said, “There was blood and glass everywhere, and he was in a lot of pain. He told me he was dying. I remember pulling up his hand brake,” she said.
A young Jewish couple walking their baby immediately called Hatzolah, which arrived a few minutes later. While waiting for the ambulance to arrive, another witness helped Blechman to make several calls to family. She told Blechman to keep talking to Regenbaum.
“I told Brandon that help was on the way. I told him his mother and brother were coming. I asked him where I could find his Discovery medical card. I told him general things like he was going to be okay, to stay with me, to stay awake. I told him to count how long it would take me in seconds to run to my car 10m away to get my keys,” she said.
Blechman called her father, who was already in Harrismith en route to Umhlanga Rocks where they were supposed to meet later.
Regenbaum’s father, Clifford, was in Plettenberg Bay on holiday when he received the call telling him his son had been shot.
“I was shocked,” he told the SA Jewish Report.
He believes his son was shot by the robbers who may have mistaken him for a security guard in hot pursuit.
“He drives a bakkie with our company name on the side which looks like a security vehicle and even has hazard lights. The robbers had already seen him leaving Melrose Arch, and I think believed him to be a security guard. I honestly believe they tried to kill him,” he said.
“It has been a stressful, worrying time. He will recover, but it will take time. I’m angry at this senseless shooting of innocent people. My son could have died. These robbers have no respect for human life. I don’t know what there is to learn from this.”
Gauteng police spokesperson Kay Makhubele told the SA Jewish Report, “Police are investigating a case of attempted business robbery and attempted murder which occurred at Melrose Arch.
“It is alleged that an unknown number of suspects driving in two cars, an Audi Q7 and a Ford Ranger, were in a shootout with security guards after they were intercepted before the business robbery,” Makhubele said. “A man who was driving his car [Regenbaum] was shot and injured during the incident. Nothing was taken from the shop.”
While doctors have told the family the operation was successful, Regenbaum will have his jaw wired for seven weeks, and won’t be able to talk or eat solid food.
“It will be a long road to recovery,” said Blechman.
“It’s a miracle Brandon survived. It’s also freaky that we were in separate cars. If I had been with him on the passenger side of the car, I might not be here today. I was running late. Brandon needed to fetch his siddur and tefillin to assist my father with a minyan on holiday, as he is saying kaddish for my zaida who passed away last year. I believe my zaida was watching over us,” she said.
Police ask that anyone with information contact 0860 010 111.
Israeli company turns SA water from toxic to drinkable
An Israeli company is assisting local government authorities to transform toxic water to healthy drinking water in what could be a game-changer for South Africa as a water-scarce country.
The company, BlueGreen Water Technologies, is a world leader in eradicating toxic algae from water sources, and has offered its expertise to South Africa.
With a branch in South Africa, the company started working at Setumo Dam on the Molopo River in North West province earlier this month. The project is in collaboration with Sedibeng Water, the company overseen by the Department of Water and Sanitation.
Speaking to the SA Jewish Report from Germany where he is currently based, BlueGreen Water Technologies Chief Executive Eyal Harel said, “Toxic algae blooms are like a ‘global pandemic’ of bacteria. They infest bodies of water, and when that population of bacteria explodes, it makes the water toxic. You can’t use that water for drinking or recreation, it depreciates property, it makes that body of water too hostile for other life forms, and it creates health and economic problems.”
The company believes in the value of all people having access to quality drinking water, Harel said, and it’s doing the work in South Africa on humanitarian grounds. “At the Setumo Dam, it’s more like lots of bacteria with a bit of water in between. But half a million people rely on it for drinking water. We came to help get good quality drinking water to these communities.” Local government departments and officials had been “extremely helpful … everyone is working together”, Harel said. “Even in this time of pandemic and reduced budgets, they are doing an excellent job.”
He said the condition of the dam meant it was impossible to treat it from the ground, so they have had to deploy helicopters to distribute product from the air. “This is the first operation of its kind in the world. It’s new for us too, and requires lots of co-ordination with government officials, water boards, and locals.”
The company describes its products as “floating, slow-release formulations of market-approved algaecides designed to prevent the intensification of cyanobacterial toxic blooms in freshwater bodies [also known as ‘blue green algae’]”.
Harel said he was motivated to work with water as “water touches all people, no matter their differences.” With 22 March being ‘World Water Day’, he emphasises that “two billion people around the world only have access to poor quality water. About 99.9% is left untreated, and people think there is nothing they can do. We want to educate decision-makers that this isn’t the case anymore. Lakes can be treated, even much bigger lakes than Setumo Dam. In addition, algae blooms can actually be prevented.”
Harel got married in Cape Town, and was there during the height of the drought in 2018.
“I remember the term ‘Day Zero’, and how frightening it was,” he said, pointing out that drought also contributes to algae blooms because with less water, “pollution concentrates and bacteria grows. It becomes even more toxic, less liquid, and makes the existing problem much worse. That could be the reason Setumo Dam was in such appalling condition.”
The company also assisted Roodepoort Dam, reducing toxic levels of algae in the water two weeks before a rowing competition in March 2020, just before the pandemic hit. However, Harel said Setumo Dam was in much worse shape. “It’s first and foremost a drinking water source,” he said. “It’s in a rural area that borders Botswana, and the communities are about as poor as it gets. So it’s our small way of helping.”
He emphasises that the company is “completely non-political” and is simply trying to reach out to areas where it knows there is an acute problem. It has even reached out to other Middle Eastern countries that aren’t friendly to Israel. “We aren’t here to make a political stand but a humanitarian one, and any human-rights organisation should understand that.
“Part of our agenda is to empower local communities to take responsibility for their local water source. We come as guests,” he says. “In all likelihood, if the dam isn’t maintained, it will go back to the way it was. So, our ultimate goal is to train local communities to be able to assess water conditions. They will be the ‘boots on the ground’ and raise the flag that there is a problem. We work with real-time remote sensing capabilities and satellite imagery to assess conditions in the lake, so they will be part of that process.
“We have established good relationships with the government. It sees the problem for what it is, and is taking a long-term approach. We are totally committed to improving water quality in South Africa, and we see the same from government.”
The company’s director of operations in South Africa, Jurgens van Loggerenberg, told the SA Jewish Report that he had worked in water-treatment processes throughout South Africa for the past 20 years.
“Over the past two decades, I’ve seen a decline in the management of infrastructure and water quality. It’s a big problem as it affects people’s lives. So, when I saw BlueGreen’s technology and what it could mean for the improvement of water quality, I was fascinated.” He joined the company soon afterwards.
He believes the technology could “be a game-changer for South Africa. Toxic bacteria means that humans suffer. And it’s never been looked at this way before. Water has been treated only at the treatment facility. I don’t think the team has ever treated water of this poor quality before, but it has a strong strategy. We have the support of the Department of Agriculture, Forestry, and Fisheries, and the Department of Water and Sanitation. They are standing behind it. They believe in the technology and what it can do for the environment. They know it can help them achieve their goals.
“One thing we observed is that there are so many shops in the area that sell bottled water,” he said. “The day the community can open the tap and have safe drinking water will be a big day for the country.”
Wits protest an education in activism
“When I look back to my youth in years to come, I don’t want to have to tell my children I was one of the people who kept to the side and stayed silent. I want to tell them that as a white, Jewish woman in a democratic South Africa, I led.”
So says Gabi Farber, a student activist who, together with other Jewish youth, has committed herself to the fight against financial and academic exclusion at South African universities.
They join a growing movement of university students who in recent weeks embarked on a nationwide protest over tuition fees with demands including the allocation of funding for excluded students and a zero fee increase for the 2021 academic year.
Farber, the legal and policy officer of the Student Representative Council (SRC) at the University of the Witwatersrand (Wits), has been integrally involved in the protest.
“We have been on the ground every day,” she told the SA Jewish Report. “Walking through the streets of Braamfontein creating mass awareness about the students’ financial-exclusion crisis.”
Following the shutdown of various campuses, violence has escalated in the past few days, with police responding to demonstrations with rubber bullets, stun grenades, and teargas, and arresting protesting students in Braamfontein. A bystander, Mthokozisi Nthumba, was tragically shot and killed by police last week.
Says Farber, “The first few days were scary. The police were out of control, and you could see they didn’t know what they were doing, shooting rubber bullets directly at people without giving time to disperse. A grenade landed on my foot and burst my eardrums. It was dangerous.
“The media suggests there are hundreds of us and that the protestors are violent. In reality, it’s very calm on the ground, and there aren’t too many of us.”
The police have calmed down in recent days, Farber says, and those responsible for Nthumba’s death were due to attend a hearing on Wednesday, 17 March.
“I couldn’t let [the police brutality] turn me away though,” she says. “There are risks when you’re fighting for change. What’s scarier to me would be doing nothing at a time like this.”
Natanya Porter and Benjamin Atie have also been actively involved.
“On Monday, there were about 50 protestors, and we were chanting and singing peacefully in the street,” recounts Porter, South African Union of Jewish Students (SAUJS) officer at Wits’ education campus. “Suddenly, the police arrived in hippos [armed vehicles] and water-cannon trucks as if there were thousands of us burning down Braamfontein. They used a disproportionate amount of force.”
Beyond active involvement in the protest, Porter and Atie have also been involved in assisting students arrested by police, providing them with snacks and support while they awaited trial last week.
“There was no reason for their arrest,” Porter says. “We believe that the police just grabbed whoever was in a protest t-shirt and who was slowest at running away. In the end, the magistrate dismissed the case.
“As an education student, I believe that it’s a right not a privilege. I don’t think it’s fair for education to be available only to the few who can afford it. I’m heartbroken and shocked at the way the police responded.
“A total of 8 142 Wits University students are financially excluded,” says Atie, SAUJS Wits chairperson. “This means that these students passed last year in spite of all its challenges, but aren’t being allowed to return because they are in debt to the university.
“As Jews, this issue speaks to us because we have always placed a major focus on education and supporting the impoverished. It’s our responsibility to assist these students in whatever way we can.”
Indeed, the role played by the young Jewish activists has raised the profile of the fees issue within the broader Jewish community, says political analyst and former SRC activist Jamie Mighti.
“We have to be cognisant living in South Africa that there are challenges to upward social mobility, including historic poverty and exclusion,” he says. “One of the recognised ways to lift oneself up is through education. The Jewish community is world renowned for prioritising the value of education.
“To see young people like this stand in the gap with other students and use their voices reminds one of the roles played by Jews in fighting apartheid. The Jewish community will look back at this moment and say this was the birth of South African leaders and the re-emergence of Jewish activism within the broader South African conversation.”
Former SAUJS Wits chairperson, Yanir Grindler, stresses that more Jewish students need to get involved. “I’m left with a sense of anger towards the broader Jewish student population,” he says. “It has been so difficult to get them involved. A minority of Jewish students have been there on a consistent basis alongside Gabi protesting with the students. The rest are quite disconnected because they feel it doesn’t really affect them. That’s naïve, because it does.”
Farber, Porter, and Atie agree that more Jewish students need to play their part.
Says Atie, “One of the biggest criticisms we receive at SAUJS is that we come across as a union which cares only about Israel and Jews and not the larger South African community. It’s this perception of Jews that enables anti-Israel and antisemitic rhetoric to enter the halls of parliament and academic circles of South Africa. Only by involving ourselves in the struggle of the larger South Africa can we begin to change this perspective.”
Many academics agree that the plight of financially excluded students must be addressed.
“There are multiple stories in and around the protests,” says Bonita Meyersfeld, a professor at Wits Law School. “Do I think they’re legitimate? Absolutely. The commercial reality demands a creative and imaginative rethinking, but that’s true of the country as a whole. My experience with the first Fees Must Fall movement showed me that students are desperate.
“Ignoring that pain or painting all protestors with the same brush of judgement and intolerance will never solve the problem.”
Barry Dwolatzky, emeritus professor of engineering at Wits, attests that the contribution each graduate makes far exceeds the cost of educating them. “The debate isn’t between students and university management,” he says. “It’s one between all of us and our government.
“Universities don’t have the resources to solve the problem in the long run. All they can do is apply a band aid here and there in the hope of managing the short-term situation. The future of South Africa depends on how well we support education.”
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