DURBAN - The Nelson Mandela Foundation (NMF) yesterday announced the court date when the matter of whether gratuitous displays of the old official flag of apartheid South Africa constitutes hate speech, unfair discrimination and harassment based on race will be heard.
In February 2018 the Nelson Mandela Foundation announced that it had made an application to the Equality Court for an order declaring this.
NMF said it was time to acknowledge that the old flag was a symbol of what was a crime against humanity, and that its gratuitous public display celebrated that crime and humiliated everyone who fought against it.
“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 is opposing the foundation’s application, primarily on the basis that the order sought by us would infringe on South Africans’ right to freedom of expression.
They also argue that the Equality Act’s provisions on hate speech don’t cover displays and communications involving symbols and images rather than words,” said NMF.
The foundation said the South African Human Rights Commission and Johannesburg Pride were supporting the application. In its heads of argument, the commission has 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.
AfriForum said last year that it would approach the Equality Court to have the SACP’s flag banned if the Nelson Mandela Foundation’s application to the court to ban the old apartheid South African flag was successful.
Ernst Roets, AfriForum deputy chief executive, said: “The same logic that the Nelson Mandela Foundation is applying to argue that that flag is hate speech could be used to argue that the SACP should be banned or that its flag is hate speech.”
He said this was because 100 million people had been killed in the world as a result of communism, exponentially more than the people who died under apartheid rule.
Roets said they were in favour of freedom of speech, but a predetermination for something to be hate speech should contain a call to commit harm.
Roets said they were not in support of the flag nor did they use it and had no loyalty towards the flag. “If the flag is determined to be hate speech we might approach the court to say, well then, the Communist Party flag must also be declared hate speech.”
The court will hear the matter on April 29 and 30.