Karyn Maughan
15 November 2004
After sixyears of legal wrangling, a major hate-speech hearing over a Muslim radio broadcast that denied the existence of the Holocaust is expected to be held in Cape Town next year.
The proposed hearing was preceded by legal action between the South African Jewish Board of Deputies and the Islamic Unity Convention (IUC) and the Broadcasting Monitoring Complaints Committee. It has also been the subject of High Court, Supreme Court of Appeal and Constitutional Court applications.
The IUC owns Cape Town station Radio 786, which, in May 1998, broadcast a programme entitled "Zionism and the State of Israel: an in-depth analysis".
During the broadcast, author and historian Dr Yaqub Zaki contended that Jewish people were not gassed in concentration camps during World War 2 but had died "from infectious diseases, particularly typhus".
Only about a million Jews had died, he said, adding that "holocaust" was a fairly recent term for something that used to be called the "final solution".
Zaki also referred to the co-operation of the Jews and the British in allegedly acquiring South Africa's mineral wealth to finance their occupation of Palestine. He also questioned the legitimacy of the state of Israel and Zionism as a political ideology.
The Board of Deputies laid a complaint with the Broadcasting Complaints Commission a month after the programme, prompting a series of legal tussles that ended in the Constitutional Court declaring part of the authority's code of conduct to be unconstitutional.
Broadcasting committee chairman Roland Sutherland SC decided in October 2002 that the board's complaint did not warrant a formal hearing.
The board took his decision on review to the Johannesburg High Court, where it was set aside by Mr Justice Franz Malan. The judge ruled that a formal hearing should be held to determine whether the controversial programme broadcast had contained Holocaust denial and anti-Semitic conspiracy theories.
"The question whether the (broadcast) may amount to the type of hate speech forbidden by the constitution raises complex legal questions, not only in South Africa, but elsewhere.
"By refusing to give the South African Board of Deputies a hearing, (the commission) denied it access to a forum to challenge and debate a matter of considerable gravity," he said.
But the IUC did not accept the judge's decision and sought leave to appeal against the ruling in the Johannesburg High Court. When its application was dismissed, the IUC petitioned the Supreme Court of Appeal and was again met with failure.
The IUC then sought leave to appeal in the Constitutional Court, which last week dismissed its efforts.
Mervyn Smith, the former chairman of the Board of Deputies who has been involved with the case since its beginning, said the logistics of the hearing would be arranged after negotiations between each side's legal representatives.
The board hoped that the "highly significant" hearing would be held in Cape Town, he said, as this was where the disputed show was broadcast.
The IUC was unavailable for comment.
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