The Nelson Mandela Foundation and AfriForum will head to the Equality Court on Monday and Tuesday to argue for and against whether the display of the old South African flag constitutes hate speech.
In February last year, the foundation announced that it had made an application to the Equality Court for an order declaring that gratuitous displays of the old apartheid flag constitute hate speech, unfair discrimination and harassment based on race, it said in a statement on Monday.
"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," said spokesperson Luzuko Koti.
"It is important that the Promotion of Equality and Prevention of Unfair Discrimination Act ('Equality Act') be used as an instrument to discourage such behaviour."
Afriforum opposing application
AfriForum is opposing the foundation's application. It argues that the Equality Act's provisions on hate speech don't cover displays and communications involving symbols and images, but only words.
News24 earlier reported that AfriForum had said in its court papers that a wide-reaching ban of the old apartheid flag would be an unconstitutional infringement on the right to freedom of expression.
AfriForum said it was committed to upholding the right to freedom of expression, while taking active steps to combat genuine hate speech.
AfriForum stated in its papers that it acknowledged that the old flag had the capacity to cause offence and emotional distress.
"As an organisation, we have no particular love for the flag or what it represents," it said.
"In the exceptionally rare instance that anyone participating in one of our events brings an old flag with them, we ask them to put it away."
The lobby group said there may be circumstances where displaying the old flag amounted to advocacy of hatred.
It argued, however, that it would not be so in all the cases that the Nelson Mandela Foundation seeks to prohibit.
The South African Human Rights Commission and Johannesburg Pride are supporting the foundation's application.
'Right to dignity must be protected'
In its heads of argument, the commission declared an interest in forcing amendments to the Equality Act, should its hate speech provisions be found by the court not to cover displays of symbols like flags.
"The foundation embraces the Constitution's enshrined right to freedom of expression. It also believes that South Africans must respect constitutional limits on that right and must protect each other's right to dignity," Koti said.