Chief executive officer of the Nelson Mandela Foundation Sello Hatang and AfriForum deputy CEO Ernst Roets, addresses members of the media after the Equality Court. Picture: Itumeleng English/African News Agency(ANA)

Pretoria - Lobby group AfriForum said the judgment handed down regarding the apartheid-era flag and that its gratuitous display constitutes as hate speech, is a setback for freedom of speech.

The Equality Court sitting at the South Gauteng High court on Wednesday ruled that the gratuitous display of the old apartheid South African flag was hate speech. 

Judge Phineas Mojapelo made the judgment on Wednesday and said the display of the apartheid flag does harm and should be considered as hate speech, unfair discrimination and harassment.

Mojapelo said the ruling doesn't mean a total ban, but said it's a prohibition from displaying the old flag gratuitously, but confirming its display only for artistic and academic reasons.

The application was brought by the Nelson Mandela Foundation which asked the court to declare the display of the flag illegal and to impose sanctions on those who display it freely in public. It said there is only one flag that represents South Africa and that is the post-1994 flag.   

AfriForum opposed the foundation's application and cited freedom of speech and asked the court not to ban the display of the old flag. The organisation had argued that the Equality Act speaks of hate speech in words and not symbols. It used freedom of expression in its defence. 

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."

Roets added that AfriForum is still open for discussion on national issues and that the judgment would be studied before a decision on further action would be taken.

African News Agency (ANA)