Nelson Mandela Foundation wants the display of the apartheid flag in private homes declared unlawful

2019-04-30 15:31
Apartheid flag. (Gallo Images, file)

Apartheid flag. (Gallo Images, file)

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The apartheid-era flag is the most visible symbol of white supremacy which was degrading and dehumanising to black people," the Nelson Mandela Foundation argued in court.

In the foundation's final submission in the Equality Court on Tuesday, its legal representative Advocate Tembeka Ngcukaitobi said that there are limits to freedom of speech, which should also apply to the display of the apartheid flag.

The foundation is asking the court to declare that the gratuitous display of the old apartheid flag constitutes hate speech, unfair discrimination and harassment based on race.

Lobby group AfriForum, however, holds a different view, and argued that although the organisation itself condemns the use of the flag, it should not be declared hate speech.

In his argument, Afriforum's Advocate Mark Oppenheimer submitted articles published by a media house which showed a picture of a black man holding the apartheid flag during a protest in 2017.

He further presented a photo of a black woman clad in a dress in the colours of the apartheid-era flag to further his argument that black protesters also used the apartheid flag in their expression, and therefore it should be allowed.

Judge Phineas Mojapelo told Oppenheimer that the apartheid flag had a history, and its function came to an end in 1994. He questioned Oppenheimer on whether he acknowledged that the display of the flag can cause harm to some people who come across it.

Ngcukaitobi said that "freedom of speech is constitutionally constraint, primarily by dignity, freedom and equality" and reiterated that the court should declare the display of the flag to be hate speech.

He argued that apartheid was a crime in itself, and the flag remained a symbol of oppression.

"They yearn for the good old days and when white people were supreme and called "baas" and that should not be the case," said Ngcukaitobi.

"The Nelson Mandela Foundation asking for a declaratory order is not about black or white, but to say that black people and their feelings count."

READ: Racists display old SA flag because they yearn for apartheid SA, court hears

Chief executive of the foundation Sello Hatang told the media that the foundation is seeking that the court also declare the display of the old flag in private homes unlawful. He said this was in order for the rights of domestic workers to also be protected. 

"Some who come across the flag could be emotionally tortured."

He said the artistic use of the flag could be allowed, including in theatres when highlighting history.

The ANC's acting national spokesperson Dakota Legoete was also in court in support of the application by the foundation.

"The flag has a place in our country, and that is in our museums and archives, nowhere else. This is like asking a Holocaust victim of the Nazi regime in Germany to place the swastika on their dining room tables," said Legoete.

Judge Mojapelo has reserved judgment.

Read more on:    afriforum  |  nelson mandela foundation  |  racism  |  courts

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