Advocate Gilbert Marcus SC, on behalf of Media Monitoring Africa (MMA), submitted to the Constitutional Court on Tuesday that freedom of expression matters the most "in cases that provoke controversy".
"This court has delivered judgment emphasising the centrality of freedom of expression in cases that provoke controversy, that is where freedom of expression matters most.
"Freedom of expression also applies to words that offend, shock or distress," Marcus said.
The Constitutional Court was hearing an application for leave to appeal against a Supreme Court of Appeal judgment that upheld an appeal against an Equality Court judgment declaring Bongani Masuku's statements, in his capacity as head of international relations for Cosatu, as hate speech.
The South African Jewish Board of Deputies (SAJB) accused Masuku of hate speech for comments he made during a lecture at the University of the Witwatersrand that was hosted by the Palestine Solidarity Committee and Young Communist League as well as through a blog post over a decade ago, News24 earlier reported.
This was followed by a complaint lodged in 2009 based on threatening, inflammatory and derogatory statements made by Masuku against the mainstream South African Jewish community, City Press reported.
According to the South African Jewish Report, on February 10, 2009, Masuku said: "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. Every Palestinian who suffers is a direct attack on all of us."
The South African Human Rights Commission found Masuku's utterances amounted to hate speech.
In addition, he was found guilty of hate speech in 2017 by the Equality Court sitting in the South Gauteng High Court in Johannesburg. Masuku was ordered to make an "unconditional apology" to the SAJBD for comments he made in 2009, within 30 days, News24 reported.
The aggrieved applicants approached the Constitutional Court to appeal the Supreme Court of Appeal judgment on the case, which in its view used "the wrong approach" by relying on Section 16(2) of the Constitution instead of Section 10 of the Equality Act, which was the basis on which the Equality Court was approached on.
Marcus' arguments dealt with four topics; the importance of freedom of expression in contested issues, lessons to be learned from suppressing speech, the need for interpretation consistent with freedom of expression and how to deal with threats made by Masuku.
He submitted the very nature of the subject matter in Masuku's speech at the university would attract debate.
"The nature of the speech is political in nature and controversial, the well-known Israeli/Palestine conflict which has attracted widespread interest and been the subject of international concern.
"The question is how do we mitigate the potentially damaging effects of freedom expression?"
Marcus further submitted the court should first determine the objective meaning of the words, and then infer whether the use of the words determined a clear intention on the speaker to cause harm.
The MMA argued the court should consider South Africa's history of hate speech regulation in dealing with this case.
"We do not suggest that statements such as these may be free of any legal consequences. They may well constitute intimidation; they may constitute harassment," Marcus submitted.
Judgment has been reserved.
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