The foundation made an application to the Equality Court for an order declaring that the gratuitous displays of the old official flag of apartheid South Africa constituted hate speech, unfair discrimination and harassment based on race.
The matter is scheduled to be heard by the court on April 29 and 30. AfriForum insists that the display of the flag does not in any way constitute hate speech, although they discourage people from displaying the flag.
“In our court papers we have said that we are a reluctant respondent, what we mean is that we also don’t use the old South African flag and we actively discourage people from using it.
“However we believe that an issue such as this should be dealt with as a social issue and it’s not going to resolve the problem if we simply ban the flag,” said Ernst Roets, AfriForum deputy chief executive.
He said their argument that the display of the flag did not constitute hate speech was based on their view that it did not comply with the definition of hate speech and to ban the flag would be a violation of freedom of speech.
“Regardless of this fact we want to encourage people not to use the flag because it’s offensive, but if something is offensive it does not mean that it’s hate speech.
He added that for something to constitute hate speech it means that it should be coupled with a call to action or it should amount to an incitement to cause harm and that “simply displaying a symbol” was not an incitement to cause harm.
In a statement, the foundation said it was time to acknowledge that the old flag was a symbol of what was a crime against humanity and its display celebrated that crime and humiliated everyone who fought against apartheid, especially the majority black South Africans.
Professor Shadrack Gutto, a constitutional expert, said banning of the flag would be wiping out a part of history, painful as it was, that would teach the current generation and the future generations of the journey that the country had traversed.
“There are certain things that are offensive, but they do not necessarily mean that they are criminal or violate the constitutional imperatives” Gutto said.