The Equality Court has found that the display of the old South African flag constituted hate speech, unfair discrimination and harassment.
“Those who display the old flag choose deliberately, not only, to display the apartheid divisive and oppressive flag, but also choose not to display a new democratic, all-uniting non-racial flag,” said Deputy Judge President Phineas Mojapelo of the Equality Court in Johannesburg on Wednesday.
As he delivered his judgment on the matter between the Nelson Mandela Foundation and lobby group AfriForum, after the latter openly displayed the old South African flag during its black Monday protests against farm murders in 2017, Mojapelo added: “The old flag dehumanises people based on their race and those who display it gratuitously do so with the full knowledge of its current and historical effects, especially on the black majority.”
Mojapelo emphasised that displaying the old flag was offensive in the context of a “post-1994 democratic South Africa”.
“It is hurtful, harmful, promotes and propagates hatred towards black people. It demonstrates a clear intention to be hurtful, to be harmful and incites harm and it, in fact, promotes and propagates hatred against black people in contravention of Section 10.1 of the Equality Act. It constitutes hate speech,” he said.
In 2017, thousands of people across the country took to the streets to take part in what AfriForum described as the biggest protest against farm murders.
The protest‚ dubbed #BlackMonday‚ was initially sparked by a video that Chris Loubser‚ a farm manager from Franschhoek‚ shared about his friend who had been killed on his farm.
While delivering his judgment, Mojapelo explained: “during the marches and protest demonstrations in which AfriForum played a central role, certain protesters displayed the old flag.”
“This gave rise for the dispute between the National Mandela Foundation and AfriForum concerning the contemporary display of the previous official flag of South Africa.”
Following the use of the flag by AfriForum, the Nelson Mandela Foundation brought an application to court to seek an order declaring that gratuitous displays of the old flag constituted hate speech and discrimination based on race.
“In February 2018, the Nelson Mandela Foundation announced that it had made an application to the Equality Court for an order declaring that gratuitous displays of the old official flag of apartheid South Africa constituted hate speech, unfair discrimination and harassment based on race,” said the Foundation’s spokesperson Luzuko Koti in April.
“For the foundation it is time to acknowledge that the old flag is a symbol of what was a crime against humanity and that its gratuitous public display celebrates that crime and humiliates everyone who fought against it, especially black South Africans.”
However, AfriForum opposed the Foundation’s application, primarily on the basis that the order sought by the Nelson Mandela Foundation would infringe on South Africans’ right to freedom of expression.
“The use of a symbol is a shortcut from mind to mind. They [the symbols] communicate just as [effectively as] words do,” said Mojapelo.
His words relate to AfriForum’s argument that words, not symbols and images, constituted hate speech.
According to Mojapelo, in its opposition to the application by the foundation to outlaw the apartheid flag, AfriForum argued that “South Africa had moved on.”
Mojapelo said the flag could and should only be used for academic and artistic purposes within public interest.
Following the judgment, AfriForum said it did not agree with the judge’s ruling. The Nelson Mandela Foundation said: “We should not be poisoning the future through gratuitous displays of the old flag.”