Judgment reserved in Cape Union Mart case

Protests outside the Western Cape High Court on 17 and 18 June made clear why the executive chairperson of Cape Union Mart, Philip Krawitz, has taken legal action to halt defamation directed at him and the retailer. Protesters in support of the Palestine Solidarity Campaign (PSC) and other respondents continued to defame Krawitz and Cape Union Mart in posters and chants outside the court. They held up photos of Krawitz and his wife, and one poster shared personal details about his daughter. 

The landmark case may ultimately determine if South Africans can be defamed by false statements for being Zionists or supporting Israel. Proceedings began on Monday, 15 June. 

On Wednesday, PSC supporters attempted to intimidate Cape Union Mart supporters. People Against Gangsterism and Drugs (Pagad) leader Abdus Salaam Ebrahim, who served nine years in prison for public violence related to Pagad raids, shouted “Death, death to the IDF [Israel Defense Forces]!” and “Death, death to Israel!”, while moving closer to supporters of Cape Union Mart. Marshals moved him away, but he later burst into court shouting, “Long live Palestine!”, shortly before proceedings began. 

One PSC supporter chanted that “Israel is the church of Satan” while another stated that “the dirty tentacles of Zionists are gripping the economy here”. A multitude of antizionist leaders and influencers made demeaning statements about black Christian protesters supporting Cape Union Mart. These included comments that they “don’t understand” why they are protesting, that they had been paid to protest, that they have been made to protest under “false pretences”, and that Cape Union Mart takes advantage of unemployment, paying unemployed South Africans to protest. 

“Throughout the day, repeated attempts were made by PSC supporters to provoke confrontations, only for unfounded allegations to emerge thereafter,” says Cape South African Jewish Board of Deputies (SAJBD) executive director Daniel Bloch. Having engaged in intimidation, harassment and provocation, “PSC representatives and supporters then sought to portray themselves as victims through a series of baseless accusations”. 

Both the South African Zionist Federation and SAJBD say they remain committed to peaceful democratic engagement, respect for the rule of law, and the protection of constitutional rights. South African Friends of Israel stated that its members protested peacefully to “support the principles of lawful conduct, human dignity, economic justice, and the protection of South African jobs and livelihoods”. The organisation said it remains committed to those principles and encourages all parties to engage peacefully and respectfully. 

On Thursday, Cape Union Mart supporters chose not to demonstrate, but PSC supporters again displayed defamatory posters and called for violence, including intifada. One protester hoisted a Hezbollah flag, and several protesters tried to intimidate a SA Jewish Report journalist. Police were present on all three days. 

The hatred expressed by PSC supporters outside the court was in sharp contrast to the civilised proceedings in the courtroom. The case is being heard by a full bench of three judges: Judith Cloete, Roy Barendse, and Constance Nziweni. 

Day two continued with submissions by Advocate Ismail Jamie, senior counsel for the PSC and the five named protesters – referred to jointly as “the PSC”. Judges Cloete and Barendse engaged with Jamie, pressing the PSC on its arguments and, in particular, on how the case against Cape Union Mart, as a distinct corporate entity, could be justified independently of the “allegations” against Krawitz. The hearing concluded with the PSC playing a video extract of an interview with Krawitz from December 2024. They relied on this to illustrate what they characterised as the collapsing of the distinction between Krawitz and Cape Union Mart. 

On the third and final day of proceedings, Thursday 18 June, Jamie put forward a hypothetical argument that if an employee of another retailer had been convicted of child murder, and the retailer did not distance itself from that employee, the public had every right to protest outside the retailer and describe that company as “murderers”. 

Judge Barendse asked if, in that hypothetical scenario, it would be “justifiable to call the hypothetical retailer ‘child killers’?” Jamie responded that it would be justifiable because “no one walking past would actually think that the retailer and its employees are actually killing children. Everyone would understand it is hyperbolic.” 

Protesters claim that Krawitz and Cape Union Mart are funding “genocide”, the Israeli army, and the conflict in Gaza, and that they are “killing children”. Krawitz and Cape Union Mart say these accusations are false and defamatory and are asking the court to interdict such statements. 

Judge Cloete asked Jamie if there is a difference between someone being accused of doing something, versus a publicly known fact of someone being convicted. She asked if an accusation makes the person‒ and by extension any business they are associated with ‒ “morally culpable” for the accusation. 

Jamie responded that if protesters had to wait years for every allegation to be proven, it would negate their right to protest. But Judge Cloete pressed further, asking if an accusation “read on the internet” can justify protests and accusations without proof. She said that this is “the case we have” before us. 

Jamie said protesters have the right to protest anyone who publicly and proudly supports Israel. “We have the right to go to his business and say, ‘You are a supporter of genocide.’” 

He said the PSC “has no problem with Jews”, its problem is with “Zionist beliefs and associations”. He said Krawitz is at liberty to have his beliefs, but when he states these beliefs publicly, there are consequences. 

Judge Cloete responded by reading the first two paragraphs of the Constitutional Court’s Masuku judgment, which gives clarity on the intersection between freedom of expression and hate speech. 

The paragraphs read by Cloete 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. 

Advocate Uday Naidoo then addressed the court for the PSC. He dealt with which publications – posters and chants – the PSC and individual non-PSC members are responsible for. 

Among the admitted material was “Boycott Cape Union Mart ‒ They Fund Genocide”; “Philip Krawitz, Genocide Funder”; “K-Way Killer Way” (with a photo of Krawitz); the “Synagogue of Satan” poster; the altered photo of Krawitz with devil’s horns and a misquote; and “Cape Union Mart supports killing of children in Palestine”. Posters and chants not dealt with were denied. 

Senior counsel Chris Woodrow addressed the court on behalf of Krawitz and Cape Union Mart. He said that any reasonable person told they are a “baby killer” and a “genocide funder” experiences an impairment of dignity. He said free speech does not mean one can say anything, or lie, and that defamation limits free speech. 

Judge Cloete responded that Section 10 of the Constitution’s Bill of Rights guarantees that everyone has inherent dignity and the right to have their dignity respected and protected. 

She said that if one accepts that the only limits to free speech are in Section 16 of the Constitution, that would dilute Section 10 of the Bill of Rights. If this was the case, dignity would occupy a lower level of importance than free speech. 

Woodrow responded that if one applies that sort of thinking, one would arrive at the conclusion that one can say anything, including something that impairs dignity. He said that defamation law is a constitutionally sanctioned limitation on expression that gives effect to the right to dignity; the two must be balanced. Judge Cloete agreed that it is the “balancing of rights, not one to the exclusion of the other”. 

Woodrow said that the PSC had made no case of truly stated facts, and that everything in its case rested on speculation. 

He concluded by submitting that Krawitz has endured the respondents’ conduct for nearly three years, attempted to reason with them, and attempted to place the facts in the public domain. He brought the case as a last resort. 

Woodrow said the respondents have been invited to tell the court why Krawitz and Cape Union Mart are “baby killers” and “genocide funders”. 

“We submit that they have failed,” said Woodrow. He reiterated that the applicants have no objection to lawful protests and boycotts, “but people cannot misrepresent the truth or lie”. 

The applicants are asking for an order that “balances rights”, not an order destroying one right over another, said Woodrow. 

Judgment was reserved and no date has been set for delivery.