After nearly eight years of voluminous correspondence and
multiple court applications, the South African Jewish Board
of Deputies (SAJBD) was at last allowed a hearing into its
complaint against Radio 786, a Muslim community radio station
in Cape Town under the auspices of the Islamic Unity
Convention (IUC). An eleventh hour appeal to the Johannesburg
High Court followed by almost a full day of procedural
arguments before the Tribunal of the Broadcasting Monitoring
and Complaints Committee (BMCC) came to nothing for the IUC,
when it was ruled that a hearing into the SAJBD's complaint
against Radio 786 should go ahead as scheduled.
Once it was informed that the hearing would be taking place,
the IUC withdrew from the proceedings altogether, advising
the Tribunal of its intention of taking the decision on
review.
During the next two days (14-15 March), the SAJBD presented
its case as to why it believed that an interview broadcast on
8 May 1998 that purported to be an in-depth look at Zionism
but in fact featured extensive anti-Jewish conspiracy
theories, including denial of the Holocaust, had contravened
Section 2(a) of the Broadcasting Code of Conduct. The
relevant section proscribes the broadcasting of material that
constitutes "advocacy of hatred" and is inter alia "likely to
prejudice relations between sections of the South African
population" and constitutes "incitement to cause harm."
On the second day of the hearing, evidence was given by
Mervyn Smith, a leading Cape Town attorney who was President
of the SAJBD at the time when the original broadcast was
made, and by Professor Milton Shain, head of the Kaplan
Centre for Jewish Studies at the University of Cape Town.
Smith explained why the SAJBD had refused Radio 786's
invitation to appear on its program to debate what the
interviewee, Yakoob Zaki, had said.
"The Holocaust is one of the most well-documented events in
history and hundreds of thousands of survivors remain alive
to testify to it. To debate the proposition that these events
never happened would be to fall into the trap of giving
credence to the proposition that there are two sides to the
story. There are not two sides. We will not debate the
undebatable," he said.
Shain described the Zaki interview as "a conspiratorial
symphony," in which "the Jews" (a term used 95 times in the
interview) were depicted as inherently malevolent, dangerous
and scheming. Jews were accused of being secretly behind a
long series of historical upheavals, including the French
Revolution, Anglo-Boer war, World War I (in which they were
said to have sabotaged both the German and the Russian war
effort), the Bolshevik Revolution of 1917 and the takeover
and undermining of Weimar Germany. These antisemitic canards,
Shain explained, represented "a cumulative construction of
the Jew as a nameless, faceless, sinister force, a hidden
hand" behind many of history's greatest upheavals. It
culminated in Zaki's denial of the Holocaust, in which he
said that only a million Jews had died, and not as a result
of a deliberate policy of extermination but through
infectious diseases such as typhus.
Shain said that this fitted into the overall portrayal of
Jews as being so "inherently evil and scheming as being
capable of falsifying the story of their own destruction for
their own nefarious purposes." This was not legitimate
historical revisionism but a repugnant form of antisemitism
that impugned the dignity of survivors and desecrated the
memory of the dead.
Advocate Johan de Waal, in presenting the Board's Heads of
Argument, referred to both international and local case law,
including the Zundel and Keegstra cases in Canada in which
Holocaust denial had been central. He contended that
Holocaust deniers were well aware of the fact that they were
lying but knowingly fabricated a counter-history for
political purposes. Given the outrageousness of their claims,
and especially when presented in the broader context of anti-
Jewish conspiratorialism (as was the case with the broadcast
in question), there could be no doubt as to their having
ulterior motives. De Waal also pointed out that the Radio 786
presenter had been complicit in the statements made because
he had actively led and encouraged the guest throughout.
The complex and often tedious proceedings on the opening
Monday were enlivened by a brief flurry of controversy when
Radio 786 was found to be secretly broadcasting the hearing
live without first obtaining the BMCC's permission. Those
responsible were unceremoniously ordered from the room by
Advocate Modise Khoza, BMCC chairman.
The SAJBD's legal team throughout the saga has been headed by
Mr. Smith. Its attorneys were provided by Feinsteins, a
Johannesburg firm headed by former SAJBD vice-chairman Ivan
Levy. Advocates Anton Katz, Michael Kuper SC, Peter Hodes SC
and Milton Seligson SC have represented the Board at various
times during the past eight years. All the Jewish lawyers
involved in the case have given their services pro bono.
The BMCC's decision is expected within the next few weeks.
