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Judgment reserved in hate speech case over old South African flag

Picture: Jennifer Bruce

Picture: Jennifer Bruce

Published May 11, 2022

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Johannesburg - Judgment has been reserved in AfriForum’s appeal against the ban on the gratuitous display of the old South African flag.

In 2019 the South Gauteng High Court in Johannesburg ruled that displaying the old South African flag, whether in public or in private, is hate speech and therefore the flag should be banned.

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AfriForum then resolved to take the matter on appeal. The appeal was heard at the Supreme Court of Appeal in Bloemfontein today.

In court, AfriForum’s lawyer, advocate Mark Oppenheimer, referred to the Black Monday protests against farm murders. He stated that although the flag was brandished at that protest, it must be noted that it was a rare occurrence.

After the proceedings, the Nelson Mandela Foundation stated that it did not understand why AfriForum persisted in trying to overturn the ruling.

“The Mojapelo ruling in the old flag case was specifically endorsed by a unanimous Constitutional Court which said that the manifestation of hatred can take forms other than mere words, so in other words it covers symbolism like the apartheid flag, and one can argue like the swastika flag of Nazi Germany.”

Ernst Roets, head of Policy and Action at AfriForum, pointed out that AfriForum does not promulgate the displaying of the flag.

He explained why AfriForum was opposed to the ruling and said: “There is a very important distinction between free speech and hate speech. Free speech ought to be cherished and genuine hate speech ought to be combated. Displaying something that is offensive, even if it is extremely offensive, cannot be hate speech on that basis because there is a particular definition for hate speech.”

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Speaking outside court today before proceedings, Ernst van Zyl, AfriForum’s campaign officer for strategy and content, warned against the banning of political symbols as it would set a negative precedent and infringe on the rights of South Africans. Van Zyl argued that their opposition to the banning of the flag was not about the flag per se, but about what it means for the rights of citizens.

“But we see the bigger picture – if we start banning political symbols because they are offensive, it will lead to other symbols and other symbols … When you look at the value of freedom of speech, it is that it is enshrined in our Constitution. It is there to protect speech that people dislike, it is there to protect speech that people might even hate. It is not there to protect speech that people like, otherwise it would not have to be guaranteed in the Constitution.”

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