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Velaphi Khumalo makes public apology for hate speech

Velaphi Khumalo, the man who wrote on Facebook that blacks should do to white people what “Hitler did to the Jews” has eventually apologised to the nation. This follows a lengthy court battle that has been described as a pivotal case in defining the limitations of hate speech.

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NICOLA MILTZ

Khumalo, an ANC member who is employed by the Gauteng department of sports, arts, culture, and recreation as a sports promoter, apologised unconditionally for the comments he made on Facebook on 4 January 2016.

“I admit that my comments were hurtful not only to white people, but also to black people. My comments were wrong, and I undertake not to utter them again in private or public spaces,” Khumalo wrote in a public statement.

“I accept the decision of the Equality Court that the comments constituted hate speech. I will not repeat them, or any other remarks that contravene Section 10 of the Equality Act.”

He stressed that his comments were fuelled by the events of the time, and that he “should have known better”.

Mark Oppenheimer, an advocate acting for the South African Human Rights Commission (SAHRC), told the SA Jewish Report this week that the judgement was very important. He explained that it cleared up ambiguities in the law as to the Equality Court’s requirements for hate speech.

“For example, in the Penny Sparrow case, the court found that you needed only one of the three requirements for hate speech listed in the Act. The court found she committed the act of hate speech because her words were hurtful.”

The Khumalo judgement says that it is now required that words must be hurtful, propagate hatred, and be incitement to harm or harmful directly. “All three must now be present to constitute hate speech,” said Oppenheimer.

Explaining further, he said, “So there is a higher threshold for what constitutes hate speech, and this makes it a pivotal judgement. It gives much more clarity as to what constitutes genuine hate speech as opposed to speech that is merely hurtful. The judgement is significant for freedom of speech because it narrows the scope for declaring hate speech.”

Oppenheimer said the case was also a victory for the rule of law, and the fundamental rights of individuals, whatever their race, to be treated equally before the law. He explained that the court rejected the argument that you cannot have hate speech directed at whites, only at blacks.

Back in 2016, Khumalo posted on a Facebook group called Political Debate SA amid a storm over estate agent Sparrow’s hateful comments.

He wrote: [We should] “cleanse South Africa of all whites. We must act as Hitler did to the Jews. I don’t believe any more than is a large number of not so racist whit people. I’m starting to be sceptical even of those within our movement ANC. I will from today unfriend all white people I have as friends from today u must be put under the same blanket as any other racist white because secretly u all are a bunch of racist fuck heads, as we already seen.”

In a subsequent posting, he wrote: “Noo seriously though u oppressed us when u were a minority and then manje (now) u call us monkeys and we suppose to let it slide. White people in south Africa deserve to be hacked and killed like Jews. U have the same venom moss. Look at Palestine. Noo u must be bushed (burned) alive and skinned and your off springs used as garden fertiliser.”

In his apology, Khumalo said he wrote the posts after Sparrow used the social media platform to compare black people at the beach to monkeys. He said he was “deeply hurt” and in a “state of anger”.

Referring to Sparrow’s remarks in his apology, he said, “Those remarks made me angry. I responded in kind. I accept that I was wrong to do so. I did not intend to harm anyone. I was hurt and angry.”

Khumalo said he accepted the Equality Court’s decision that it was not what he intended that mattered, but whether the remarks might reasonably have been understood to be intended to damage the nation-building project and other white people.

Khumalo said as a sign of respect for the rule of law, he had instructed his lawyers not to appeal any aspect of the Equality Court’s judgement.

“I would also like to urge my fellow activists who interact [with] and or manage the Facebook pages Political Debate SA and Independent Thinkers not to allow such platforms to deteriorate into a racists’ ranting page,” he added in his apology.

“I am sure that the purpose of the groups is to engage frankly. However, there is a difference between frank talk and racism. I clearly crossed that line. I hope others in future will take my case as an example, and refrain from making hateful comments. Unfortunately, remarks that are as bad or worse than anything I said are still made on that page on a regular basis. This must stop.”

The lengthy and highly technical judgement delivered last month by Judge Roland Sutherland brought to an end the protracted legal proceedings which dealt in depth with the definition of hate speech as set out in Section 10 of the Equality Act.

Sutherland ruled in favour of the SAHRC in its case against Khumalo, deeming his comments to be hate speech.

Sutherland declared that Khumalo’s comments were hurtful, harmful, and promoted hatred, and thus constituted hate speech.

The court ordered Khumalo to pay court costs, and told the National Prosecuting Authority to investigate whether he could be charged with a crime. Khumalo was ordered to provide a written apology to all South Africans acknowledging that his comments were hate speech, that he was wrong, and that he would never make such remarks again. He was ordered to remove all references to the comments off social media.

The South African Jewish Board of Deputies (SAJBD) this week welcomed the unconditional apology by Khumalo for his hate-filled comments in 2016.

National Director Wendy Kahn told the SA Jewish Report, “It is important that Mr Khumalo has taken accountability for his offensive words, and that he is adhering to the judgement of the Equality Court. We are encouraged that his apology has been made to South Africans as the consequences of hate have an impact on all of us in our society.”

She said apologies in any situation where there have been hurtful and hate-filled remarks are appreciated.

Over the years, the SAJBD had been involved in many situations where anti-Semitic comments had been made, and the perpetrators had refused to take responsibility for their hate. In some cases, the SAJBD had pursued these matters for years.

“There have been several successful mediations that have led to understandings that have resulted in genuine apologies, positive outcomes that have educated and changed behaviours,” Kahn said.

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‘Wake up!’ say doctors, as third wave ramps up

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Communal experts this week issued a stern warning to “catch a wake up” as the community has been hard hit by death, severe illness, and an unprecedented number of infections which continue to rise daily during the third wave of the COVID-19 pandemic.

“This is extremely severe,” warned Dr Richard Friedland, the chief executive of Netcare Group. “In Gauteng, we are in the eye of the storm, with things set to get a lot worse than they are.

“We should all be doing what we can to prevent a single death, to prevent people from having to be admitted to hospital,” he said.

The death rate has risen at hospitals, and hospital stays are about 20% longer, exacerbating the shortage of beds, especially in Gauteng, which is leading the uptick in infections.

“As I walk through our COVID-19 units, I see people struggling to breathe, fighting to survive this shocking pandemic. Every day, we are reminded of the pain, the suffering, and the enormous loss that it brings,” Friedland said.

Issuing a plea to the community to be hyper vigilant, he said, “I want to be abundantly clear that there can be no place for a lackadaisical approach.”

Several doctors this week told the SA Jewish Report that the situation was dire, with one doctor describing it as a “battlefield”.

“Patients, some quite young with no comorbidities, are really sick, with the vast majority on one form of ventilation or another,” said Dr Carron Zinman of Netcare Linksfield Hospital.

“Some severely ill patients are being temporarily managed in casualty because there are simply no intensive-care beds available at other hospitals,” she said.

“We are seeing a fairly young cohort, some with no underlying conditions, who are becoming seriously ill. The variants are more virulent and transmissible. We have had quite a lot of patients who have had COVID-19 before or who have received the vaccine, and got it.”

“We treat more aggressively, but there’s still no magic drug. We’re doing everything we can to turn the inflammatory response around. It takes some longer than others,” she said.

“Sadly, some people over 60 believe that once they have had the virus or the vaccine, they are safe. They aren’t. A lot of families including couples and their children are being infected,” she said.

At the time of going to print, Hatzolah had 501 active patients with 64 patients requiring oxygen at home. At least 11.7% of the active cases include children and young adults under the age of 20.

“There are a higher number of younger people including children than in the previous waves,” said Dr Anton Meyberg of Netcare Linksfield Hospital.

Sadly, the majority of patients are still the elderly over 60, but doctors have noticed a rise in the number of patients between the ages of 40 to 60, many requiring hospital admission.

There appears to be a disproportionately higher number of cases within the community, with doctors putting this down to complacency and carelessness about observing protocols.

“There is more testing, but people aren’t following the rules,” said Meyberg, “People who have been vaccinated are becoming lax, and there is a large asymptomatic spread of the virus.”

The country technically entered its third wave on Thursday, 10 June. According to the Ministerial Advisory Committee on COVID-19, a new wave starts when the seven-day moving average of new infections surpasses 30% of the previous wave.

More than 70% of the new cases are now in Gauteng and the Western Cape, where there is evidence of a resurgence after a period of recovery, and there are daily increases in the Eastern Cape and KwaZulu-Natal.

According to experts, the next two weeks will be particularly severe in Gauteng as the numbers steadily increase. Cape Town is a few weeks behind, they say.

Private-sector hospital admissions have increased four-fold since April. More than 500 patients are being admitted a day in the private sector in Gauteng, which is putting enormous strain on emergency departments fighting to open as many beds as possible to make space.

According to Hatzolah Chairperson Lance Abramson, there were 263 active cases at the peak of the first wave, 333 cases at the peak of the second wave, and now there are more than 500 active cases “with no peak in sight yet”.

“There are a staggering number of active cases in the Johannesburg Jewish community,” he said.

“Ambulances are transporting multiple COVID-19-positive patients to hospitals daily, where it is sometimes difficult to find a hospital bed. Patients are sometimes having to wait in ambulances in the parking lots of hospitals. This is very challenging for teams on the ground,” he said.

The organisation is also looking after 64 patients on home oxygen where they are closely monitored, Abramson said.

The organisation’s nurses are seeing between 80 to 100 patients a day.

Interestingly, Hatzolah has had 238 patients on the programme who have had a vaccine. Of those, 171 had received the first Pfizer vaccine, and 83 had received the Johnson & Johnson vaccine, two the AstraZeneca, and one Moderna. Thirty eight patients have been fully vaccinated and of those, only one required hospitalisation and has since recovered, he said.

According to Dr Ryan Noach, the chief executive of Discovery Health, globally, vaccinations have materially slowed the progression of new cases and deaths. There are early signs of reduced COVID-19 infection rates among the vaccinated pollution in South Africa post 15 days after vaccination.

“There are signs that the first dose is working, with early data showing that there are less admissions post vaccination and fewer deaths,” he said.

Worryingly, he said, “The data points to the potential for a very severe third wave, and we’re seeing the beginning of it only now.”

He said more than 50% of adults 70 years and older require admission to hospital.

“Hospital admissions in wave three have reached the level of admissions at the peak in wave one. There are currently 2 012 Discovery members admitted to hospital, of which 526 are in intensive-care, and 275 require ventilation.

“A large number of people are showing evidence of reinfections. Discovery members who contracted COVID-19 in the first wave have again contracted COVID-19 in the second wave. Three members have now tested positive three times,” Noach said.

On 13 June, President Cyril Ramaphosa confirmed that two million Johnson & Johnson (J&J) doses would have to be destroyed because the United States regulator, the Food and Drug Administration, found that the main ingredient with which they were made wasn’t safe for consumption.

As a result, South Africa has no J&J doses to administer at present, setting the country back in its vaccine roll-out in the midst of a third wave. The good news is that, according to the Bhekisisa Centre for Health Journalism, J&J will replace all the doses within the next two weeks, with 300 000 due to land within a few days and another million to be released by Aspen’s Eastern Cape plant next week.

In the meantime, doctors have appealed to people to be hyper vigilant and maintain all non-pharmaceutical measures.

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BDS boycott ‘creating divisions among ordinary South Africans’

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“I felt targeted because I’m Jewish. It’s antisemitic,” said a businessman affected by an alleged boycott of companies purported to support Israel.

A group of 300 South African hardware stores supposedly cancelled contracts with “SA-based suppliers and companies that have relations with or who have shown support for Israel”. The executive director of Africa4Palestine (formerly Boycott, Divestment, Sanctions (BDS) South Africa), Muhammed Desai, last week described the boycott as “heartwarming”.

“Many people have been pressured by their community to be part of a boycott and cause harm,” said this businessman, speaking on condition of anonymity. “This affects ordinary South Africans because it destroys long-term business relationships.”

Although there has been an impact on his company, it seems not many businesses have felt the impact of the boycott. Other suppliers listed by Desai told the SA Jewish Report that no contracts had been cancelled. “None of our relationships or sales into any of the hardware stores in South Africa have been compromised,” said one supplier, who asked not to be named.

“I can state categorically that this has had no impact on our business,” said another supplier who wanted to remain anonymous. “Our order book is full.”

“As the ‘rainbow nation’, this is just aggressively encouraging divisions that were never there before,” said the first businessman. “People are making business decisions based on religion rather than good business principles. These enforced divisions are what worry me more than anything. What happened to the South Africa that we know? This radical stance is completely nonsensical,” he said.

Desai went on to declare, “Today, standing with Israel, having ties with Israel, or serving in the Israeli military have all, correctly, become similar to, in the past, having stood with apartheid South Africa or with Nazi Germany. To stand with Israel today is now synonymous with saying, ‘I stand with Germany’ during the Holocaust or declaring, ‘I stand with South Africa’ during apartheid.”

He said Africa4Palestine welcomed “this ethical position as a morally sound example to other stores in South Africa and the African continent to emulate so that we can truly create apartheid-Israeli-free zones. Your efforts have served as another great blow to those who believe they can support the Israeli regime on the one hand, and take money and profits from principled and moral South African people.”

If the language of boycotting Jewish businesses and creating “Israeli-free zones” sounds familiar, that’s because it is. South African Jewish Board of Deputies (SAJBD) National Director Wendy Kahn said, “In his congratulatory letter to the boycotters, Desai compares Israel to Nazi Germany and the Holocaust. The irony of his use of Holocaust terminology is also not lost on us Jews. Nazi Germany also came to our minds when we read this letter. We remember that the Holocaust began with the boycotting of Jewish businesses.

“We aren’t fooled by his couching of words or references to those who ‘have relations with or who have shown support for Israel’ and those ‘standing with Israel, having ties with Israel’. What he actually means is Jews. According to the University of Cape Town’s Kaplan Centre study in 2019, 90% of South African Jews support Israel, so invariably, what Desai is calling for is the boycott of Jewish businesses.

“The delight that he takes in potentially destroying these Jewish businesses is gut-wrenching, not least because of the fragile and precarious economic climate in South Africa. Will Desai and the BDS organisations rejoice in the jobs lost by these businesses?

“His so-called victory of boycotts of Jewish business won’t have an impact on the Palestinian-Israeli conflict. All these threats achieve is attempted intimidation of local South African Jews who hold an opinion different to BDS. The South African Jewish community won’t be intimidated. It’s effect will be only to harm South African businesses trying desperately to survive and retain jobs,” Kahn said.

“Our Constitution states that everyone has the right to freedom of conscience, religion, thought, belief, and opinion. There’s no rider that excludes Jews and people who have a connection to Israel. Nor does it call for the destruction of livelihoods of people for daring to believe differently.”

Desai issued a statement saying that the accusation of antisemitism was “a deliberate misrepresentation”, but then reiterated that “we welcome South Africans shunning, boycotting, and ending relations with suppliers and companies that are trading with, have links to, or are supportive of Israel”.

In response to the SAJBD’s statement on the matter, published on Facebook, Africa4Palestine’s Bram Hanekom wrote, “The 300 hardware stores can buy the things they need from other South African owned and ethical businesses.”

Benji Shulman, the director of public diplomacy at the South African Zionist Federation, noted that “the boycott of Jewish businesses has a long history in the BDS movement going back more than a decade, with Jewish businesses or those with Jewish management frequently targeted. What’s more, commercial boycotts against Israel have been a complete failure internationally. Since the boycott movement started, trade between Israel and South Africa has actually increased on average.

“BDS has many other failed boycott attempts,” he said. “One that comes to mind is the failed Woolworths ‘tomato’ boycott, which also produced zero results, other than a pig’s head placed in the kosher section of a supermarket. BDS may be trying to intimidate smaller Jewish businesses, but as yet, it hasn’t shown any signs that it has the capability of undertaking a full-fledged boycott campaign.”

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SAZF takes on Judge Desai for his conduct

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The South African Zionist Federation (SAZF) has predictably come in for some heavy criticism by the anti-Israel lobby for lodging a complaint against retired Judge Siraj Desai with the Judicial Conduct Committee (JCC).

Last week, the SAZF lodged a complaint with the JCC against the judge, who recently took up the position of the Legal Services Ombudsman.

The SAZF said Desai’s actions and conduct over many years was plainly in breach of the code of judicial conduct and “entirely unbecoming of a judicial officer”.

This was a bombshell complaint against Desai, who is a well-known social activist and respected jurist described by many as the “people’s judge”.

The detailed complaint against him spans many years from 2009 till the present, highlighting Desai’s actions and conduct connecting him to the Boycott, Divestment, Sanctions (BDS) movement against Israel, and the pro-Palestinian movement.

The SAZF said that Desai’s alleged misconduct included his involvement in political controversy, misusing the prestige of his judicial office to advance his personal political interests, failing to recuse himself in a case in which he was obviously conflicted, and involving himself in activities that used the position of his judicial office to promote a partisan political cause.

Desai, who served the legal profession for 43 years, retired as a Western Cape High Court judge last year, and almost immediately accepted the ombud position having been appointed by President Cyril Ramaphosa. The objective of the ombud is to advance and safeguard the integrity of the legal profession in South Africa But more importantly, it’s to ensure fair, efficient, and effective investigation of complaints of alleged misconduct by legal practitioners.

Former Judge Rex van Schalkwyk of the Rule of Law Project told the SA Jewish Report, “This isn’t about whether one is pro-Israel or pro-Palestine. Did Judge Desai conform with the ethics that constrain him as a judge? Having looked at the complaint, there is at least a case that needs to be answered. Judge Desai must give an explanation about his conduct. It’s legitimate for this issue to have been brought to the professional body of the JSC [Judicial Service Commission] and to be dealt with specifically in accordance with the principle of law not in accordance with the political issues which will cloud the complaint.”

The SAZF has been lambasted for the complaint, which it lodged on 10 June, by members of Africa4Palestine and the South African BDS Coalition. They have set up a Facebook page called “Hands off Judge Desai”.

The anti-Israel lobbyists described the complaint as “spurious” and “baseless”, and called it a “vengeful attack”. Africa4Palestine criticised the “questionable” timing of the complaint, saying that it was an attempt to distract from its complaint lodged against the country’s outgoing Chief Justice Mogoeng Mogoeng.

Last Friday, 11 June, the JCC appeal panel said it was continuing its deliberations on Mogoeng Mogoeng’s appeal against a misconduct finding for his remarks about Israel brought by Africa4Palestine.

Earlier this year, the JCC found that Mogoeng had contravened the code of judicial conduct with comments made during a webinar in June last year and subsequently at a prayer meeting where he declared that he would never apologise for the views he expressed. In the webinar, hosted by the Jerusalem Post, he said he believed South Africa would do well to consider adopting a more objective stance on the Israeli-Palestinian conflict and said “hatred” of the Jewish state could “attract unprecedented curses upon our nation”.

In his March ruling, Judge Phineas Mojapelo stressed that “judges are to stay out of politics”.

The South African BDS Coalition said the SAZF’s complaint against Desai was in “retaliation for the failure to secure a seat at the Constitutional Court by Judge Unterhalter” accusing him of being an “apologist for Zionism”. Earlier this year, the SA BDS Coalition demanded that Unterhalter not be selected to the Constitutional Court for his association with the South African Jewish Board of Deputies.

Rolene Marks, SAZF’s legal forum spokesperson said, “At issue here, is the role that judges play in our society. The reason that there is a judicial code of conduct is that judges need to be seen not to be promoting political causes since they may have to rule on them at some stage. However, it’s clear through his comments that although Judge Desai is entitled to his views in terms of freedom of speech, he is bound by the judicial code of conduct, and his actions fall outside of that.”

According to the SAZF, last year, Desai while being interviewed on an Iranian YouTube channel, made “inappropriate comments” likening Iranian leader Ayatollah Khomeini to President Nelson Mandela.

“To compare a world-renowned peacemaker like President Mandela to the despotic founding leader of a regime notorious for its disregard of human rights, and which is responsible for gross human rights violations, including torture and violence against thousands of people, is an insult to the people of South Africa, the Constitution, and our democratic institutions,” the statement said.

It added that Desai also made “several other shocking remarks” during the interview regarding foreign policy, including referring to the United States – an important trading and diplomatic partner of South Africa – as the “great Satan” which demonstrated that Desai had “engaged in conduct incompatible with his status as a judge of the high court.”

According to the SAZF, Desai has a long history of endorsing and promoting the anti-Israel political lobby.

In 2009, Desai was part of a South African delegation of pro-Palestinian activists that was to take part in a protest known as “the Gaza Freedom March” organised by the Palestine Solidarity Alliance. It was during this time that the Cairo Declaration was signed which was a call for a global movement for Palestinian rights and a boycott of Israel. The SAZF said Desai “lent his stature as a judge to the drafting and issuing of the declaration”.

In 2015, he gave an order in a review application brought by pro-Palestinian, anti-Zionist organisations and activists against the City of Cape Town. There is allegedly no record in the judgment of him having disclosed his interest in BDS to the parties in that case, according to the complaint.

In 2018, Desai welcomed Hamas during its visit to South Africa and said, “We hope to make an intellectual contribution to the resolution of the Palestinian issue, but we take our leadership from you, you are the leadership on the ground.”

“This, despite the fact that the Hamas charter includes direct calls for violence against Jewish people and the destruction of the state of Israel. Using the prestige of the judicial office to publicly promote an extremist organisation is clearly contrary to the precepts underlying the judicial code of conduct,” said the complaint.

“Judge Desai has long conducted himself well outside the realms of the judicial code,” said the SAZF. “It’s therefore crucial for maintaining public confidence in the judiciary that manifest judicial misconduct is called to account.”

Desai told News24 through his spokesperson, Professor Usuf Chikte, that he was “unapologetic in his stance in condemnation of apartheid Israel”.

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