By Jaya Leibowitz
Manager of Retail Legal at Allan Gray and Mensch Board Member
Living life as a Jew in the world right now can be fraught with tension around our identity, religious beliefs, and political ideology. Whatever your view on the situation in Israel and Gaza, you may find yourself experiencing aggressions, both at a micro and macro level, purely based on your Jewish identity or heritage. Being able to recognise discrimination and hate speech and knowing what actions to take to protect your rights is an important step in standing up for yourself and fighting back.
What is unfair discrimination?
South African law defines unfair discrimination as any act or omission that imposes burdens, obligations, or disadvantages on, or withholds benefits, opportunities, or advantages from, any person based on a number of grounds, which include race, religion, conscience, belief, culture and political opinion.
In the non-profit sector, this may look like your manager or organisation not allowing you to participate in certain events or development opportunities, or other organisations refusing to do business with you. However, unfair discrimination can be difficult to prove as the person or organisation responsible for discrimination may present various reasons for their decisions that have nothing to do with your identity or beliefs.
A good example of an unfair discrimination case is David Teager being stripped of his captaincy of the Under-19 South African cricket team. Cricket South Africa have cited various other reasons for the decision, which may or may not be valid.
What is hate speech?
Hate speech can be far more overt and damaging that unfair discrimination. It may include derogatory comments, jokes, or slurs that are either directed at you specifically or are made about Jewish people in general. It can also include the distribution of materials or content that promote anti-Semitic stereotypes and engender hate towards Jewish people. In some instances, the actions of the Israeli government are conflated with Jewish individuals, regardless of their political beliefs, leading to accusations, aggression and harassment that holds ordinary Jews personally responsible for suffering of Palestinians.
In early 2022, the Constitutional Court found Bongani Masuku, a former head of international relations for the Congress of South African Trade Unions, to have committed hate speech and incited harm against Jewish people. Masuku made statements in a 2009 speech that clearly promoted harm against Jewish families who identity as Zionists or support the IDF.
Your Rights and How to Respond
The South African Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) provide strong protections against discrimination and hate speech. These laws affirm that no one should be subjected to unfair treatment or hateful rhetoric based on their religion, ethnic origin, culture or political beliefs.
If you encounter unfair discrimination or hate speech within your organisation, in the public sphere or online, it is important to take the following steps:
- Document the Incident: Keep a detailed record of what happened, including dates, times, locations, and any witnesses. Hard evidence such as emails, texts, social media posts and voice notes can be crucial for proving a formal complaint or taking legal action.
- Report to Management: If you feel safe doing so, report the incident to your organization’s management or human resources department. Many organizations have policies against discrimination and harassment.
- Consider filing a complaint with the Human Rights Commission (SAHRC): The SAHRC can investigate complaints of unfair discrimination and hate speech. They offer mediation and, if necessary, recommend further action.
- Consider filing a complaint with the Equality Court: For cases that involve hate speech or severe discrimination, you can file a complaint with the Equality Court, which specialises in cases of this nature, providing a platform for victims to seek justice and reparations.
Laying a formal complaint with the SAHRC or the Equality Court
Deciding to lay an official complaint with the South African Human Rights Commission (SAHRC) or the Equality Court is a significant step toward addressing discrimination or hate speech. However, it’s essential to consider several factors before proceeding. These considerations can help ensure that you’re prepared for the process and have set realistic expectations about the outcomes.
- Documentation and Evidence: Solid evidence will support your case and help the authorities understand the extent and impact of the discrimination or hate speech. Without strong evidence, it is unlikely that your claim will succeed and may not be considered at all.
- Potential Outcomes: Consider what you hope to achieve by filing the complaint. Outcomes can vary widely, from formal apologies to policy changes within an organisation, or even financial compensation in some cases. Being clear about your desired outcome can help guide the process and inform discussions with the SAHRC or the Equality Court.
- Emotional and Mental Well-being: The process of pursuing a complaint, especially in cases of hate speech or severe discrimination, can be emotionally taxing. Reflect on your emotional and mental readiness to engage in potentially lengthy proceedings. The case against Bongani Masuku was finally decided by the Constitutional Court more than a decade after his speech in 2009. If you decide to lay a formal complaint, it is recommended that you seek support from friends, family, or professionals to navigate this period. Mensch can assist by providing a sounding-board and community support, and connecting you with professional counselling, if needed.
- Potential Backlash: Consider the possibility of backlash or further discrimination as a result of filing a complaint. While legal protections are in place to prevent retaliation and such backlash can never be condoned, it’s important to be prepared for the reality that filing an official complaint may lead to further vitriol. This could include tension in the workplace, social circles, or online.
A final thought
As Jews, being able to recognise and address unfair discrimination and hate speech is essential for ensuring our safety and emotional well-being. By understanding your rights and the steps you can take to protect them, you can help foster an environment of inclusivity and respect for diversity.
Taking action against discrimination and hate speech is a courageous step that can lead to meaningful change. However, it’s important to approach this decision with a clear understanding of the potential challenges and outcomes. By carefully considering these factors, you can make an informed decision that aligns with your values, goals, and well-being.
Mensch is here to guide and assist you in any way that we can. You can contact us at gina@mensch.org.za.
