Fight for apartheid flag display

THE legal battle over whether the public display or keeping of the apartheid flag at home constitutes hate speech is once again set to rage in the courtroom.

AfriForum’s application to overturn an Equality Court ruling that declared the display of the flag in both public and private spaces a form of hate speech, will be heard by the Supreme Court of Appeal (SCA) next week.

The Equality Court judgment delivered by Judge Phineas Mojapelo at the South Gauteng High Court, Johannesburg, in August 2019 effectively banned the gratuitous display of the flag that South Africa used from 1928 to 1994.

Judge Mojapelo ruled that the flag could only be used for artistic, academic and journalistic reasons.

The Nelson Mandela Foundation (NMF) dragged AfriForum before the Equality Court after the group’s members hoisted the old flag during the “Black Monday” marches on October 30, 2017. The nationwide marches were held to demonstrate against the killing of farmers.

Judge Mojapelo found the actions constituted hate speech in terms of the Equality Act, unfair discrimination on the basis of race, and harassment. He added that the display of the old flag anywhere constituted the same breaches of the country’s laws.

“To the majority of South Africans, and undoubtedly, to the majority of black South Africans, a gratuitous display of the old flag has, as its dominant meaning, an endorsement of the system of apartheid. Apartheid discriminated against black people purely on the basis of their race or colour of their skin. This is a prohibited ground for discrimination under the Equality Act,” Judge Mojapelo said.

He said people who display the apartheid flag deliberately choose a symbol of oppression. “They intend to incite and awaken feelings of white supremacy against black people.”

The undeterred AfriForum will try to convince a bench of the SCA next week that Judge Mojapelo erred in several aspects. Its appeal application papers said the group sought an order declaring that the Equality Court erred in finding that any display of the old flag, including at homes and schools, violated the Equality Act.

“The Court erred in finding that such displays enjoy no protection as free speech under the Constitution,” said AfriForum’s papers.

The NMF and the SA Human Rights Commission will oppose AfriForum’s appeal application.