Johannesburg – The Equality Court has been asked to declare "gratuitous and unwarranted" displays of the old South African flag as hate speech.
In the application, the Nelson Mandela Foundation submitted that displaying the old apartheid-era flag constituted hate speech, unfair discrimination and harassment based on race.
The foundation's Lunga Nene said the decision came after years "of watching public displays of the old flag and hoping such behaviour would stop".
"Displays of the old flag at demonstrations against farm murders on 'Black Monday', October 30, 2017, at least two of which were verified, persuaded us that the time had come to act," Nene said.
She said "after extensive consultation and reflection", the foundation was left with the question of whether or not the old flag should be criminalised.
"Through public debates with AfriForum, one of the leading figures in the 'Black Monday' demonstrations, it became apparent to the foundation that some South Africans do not fully appreciate that apartheid was a crime against humanity (as the United Nations declared in 1973) and that gratuitous displays of apartheid symbols, such as the old flag, are a celebration of that crime and a humiliation of its victims," Nene said.
"The Nelson Mandela Foundation has a deep appreciation for the importance of history and memory, especially in a country that is still healing, as well as the right to freedom of expression, which is enshrined in our Constitution."
"Indeed, the very vision for which the foundation was established is a society that 'remembers its pasts' and 'listens to all its voices', but also one that ‘pursues social justice’," she said.
However, Nene said gratuitous displays of the old flag couldn't be protected by the Constitution of the country because they demonstrated a total rejection of tolerance, reconciliation and the values of the Constitution.
"The foundation is not pressing for criminalisation in relation to gratuitous displays of apartheid symbols. Instead, we are using law to discourage their use," she said.
"The foundation is asking the Equality Court for a resounding declaration that gratuitous displays of the old flag constitute unfair discrimination, hate speech and harassment. Such a declaration will establish a basis for holding people accountable."