The display of the apartheid-era South African flag must be confined to artistic, academic or journalistic expression. Collage: Elvin Nethononda
Durban - Lobby group AfriForum and the Freedom of Expression Institute have described the Equality Court judgment that the gratuitous display of the apartheid-era flag constitutes hate speech, as a setback for freedom of speech.

The Equality Court sitting at the South Gauteng High Court yesterday ruled that the gratuitous display of the old flag constituted hate speech, discrimination based on race, and harassment.

This ruling comes after the Nelson Mandela Foundation (NMF) made an application to the court against the display of the old flag.

Judge Phineas Mojapelo said his ruling would not lead to a total ban on the display of the flag, but said it should not be displayed gratuitously.

South Africans may only display the flag for artistic or academic purposes.

AfriForum, which was opposed to the banning of the flag, said the judgment was a setback for freedom of speech.

Ernst Roets, head of policy and structures at AfriForum, said there should be clarity about the line between freedom of speech and hate speech.

“Our concern with this case from the outset has been that a judgment in favour of the NMF would not serve the purpose they intended, because state regulation with regard to freedom of speech in most instances results in bigger problems,” he said.

Samkelo Mokhine, of the Freedom of Expression Institute, said the organisation did not agree with the ruling on the basis that it was not constitutional.

The institute disagreed with the decision based on the unconstitutional nature of section 10 of the Equality Act, which talks about the prohibition of hate speech.

“Freedom of Expression under section 16 (of the Equality Act) does not extend to the advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes an incitement to cause harm, however, Promotion of Equality and Prevention of Unfair Discrimination Act extends that to hurt, harmfulness, etc,” said Mokhine.

Mojapelo supported submissions made by the SA Human Rights Commission that the old flag was a symbol of a racist and oppressive regime.

“Such display is destructive of our nascent non-racial democracy It is an affront to the spirit and values of botho/ubuntu, which has become a mark of civilized interaction in post-apartheid South Africa,” he said.

Cosatu national spokesperson Sizwe Pamla said the flag symbolised the enslavement and dehumanisation of millions of black people and evoked feelings of terror for many of them who remember the atrocities that were committed to them under apartheid.

Annelie Lotriet, the chairperson of the DA’s parliamentary caucus, said the country needed to rally behind its democratic flag, which represented all the people of South Africa and supported the values of unity in diversity.

She said the old flag formed part of the country’s painful history and should be utilised to educate and inform.

“The total ban of the flag from our society would have deprived future generations of the full account of the country’s history, a history that we can never forget nor repeat.”

The chairperson of the portfolio committee on sports, arts and culture, Beauty Dlulane, said the court ruling should signal the end of nostalgia for apartheid South Africa.

The Mercury