The Equality Court, sitting at the Johannesburg High Court, reserved judgment on whether the old flag should be banned from being displayed. Picture: Brenda Masilela/ANA

Johannesburg - The Equality Court, sitting at the Johannesburg High Court, on Tuesday reserved judgment on whether the old South African flag should be banned from being displayed.

The court sat for two days and heard a robust debate on displaying the matter, which was used by the apartheid government.

The Nelson Mandela Foundation applied to the Equality Court to declare that gratuitous displays of the flag constituted hate speech and discrimination based on race, both prohibited by the Equality Act.

A dispute arose between the foundation and lobby group AfriForum concerning displays of the flag, which was abolished on April 27, 1994.

The minority rights group said it discouraged its members from displaying the flag as it was “unwise” and such acts offended some people, but it felt it should not be unlawful as it was part of history.

AfriForum's lawyer, Mark Oppenheimer, said that hateful symbols should be allowed in public spaces because they educated people on right and wrong.

Oppenheimer said if the flag was banned, it would set a dangerous precedent.

His statement was supported by the Federasie van Afrikaanse Kultuurvereniginge (FAK) - an Afrikaans cultural organisation - which joined the proceedings as a friend of the court, saying its board viewed the display of the old flag with the intention to provoke hate as totally unacceptable.

It supported legal action against such people, said FAK, adding that people who openly displayed the flag were frowned on and discouraged by the broader Afrikaner community.

But, said FAK, it feared its banning would force perpetrators “underground” or spur them on to create new symbols for the same purpose.

Advocate Tembeka Ngcukaitobi, for the Nelson Mandela Foundation, said freedom of expression was not a founding value of the constitution. 

"When we interpret freedom of expression, we must do so through the lens of dignity and equality."

Ngcukaitobi said the real test was whether there was a risk that people would be degraded by the flag when they came into contact with it. 

He tore into AfriForum's argument that the flag be allowed in homes.

"We reject the distinction made between public and private, this is South Africa, there is no home in South Africa that does not have a domestic worker, or a gardener or visitors," he said.

African News Agency (ANA)