The protesters who hoisted the apartheid flag at a march organised by AfriForum in 2017 should have been invited for a reconciliation process, the lobby group’s lawyer has told the Supreme Court of Appeal (SCA).
Advocate Mark Oppenheimer has put up AfriForum’s case for its application aiming to appeal an Equality Court ruling that declared the gratuitous display of the apartheid flag in both public and private spaces a form of hate speech.
AfriForum sought to convince the SCA that Judge Phineas Mojapelo erred in finding that the display of the old South African flag constituted harassment, hate speech in terms of the Equality Act and unfair discrimination on the basis of race.
Judge Mojapelo delivered his judgment in 2019, finding in favour of the Nelson Mandela Foundation and the South African Human Rights Commission.
Judge Mojapelo said people who display the apartheid flag deliberately choose a symbol of oppression. “They intend to incite and awaken feelings of white supremacy against black people.”
AfriForum sought to appeal the judgment, saying it threatens freedom of expression.
Oppenheimer stressed that part of the flaw of the Equality Court hearing is that it proceeded without the people who displayed the flag.
“It’s true that some people at those protests used the old South African flag. That’s not in dispute,” he said.
Oppenheimer added that AfriForum’s issue is that the perpetrators were not joined in the proceedings.
“The Human Rights Commission has done an outstanding job of tracking down particular alleged perpetrators of hate speech,” he said.
“Adam Catzavelos, for example, was in Greece. They tracked him down. There are photos of these protesters.”
The Randburg Magistrate’s Court convicted Catzavelos of crimen injuria after he made racist remarks while on a beach in Greece in 2018. The Joburg man filmed himself celebrating that there were no black people on the beach.
Oppenheimer continued: “You want to hear from the alleged perpetrators (in this case)… You must hear from them.”
Their absence at the Equality Court meant reconciliation could not be explored, Oppenheimer submitted.
“I submit that part of the process of the Equality Court was this idea that it is a space for healing the divisions of the past, that it is a space for reconciliation.
“You cannot have reconciliation in the absence of the party you say has committed the immoral act. You can’t reconcile in absence,” he said.
“What has happened in some of these cases is that the perpetrator comes into the Equality Court proceedings and they are told that what you have done amounts to hate speech and it dawns on them that what they have done is repugnant.
“There’s an example that was dealt with outside the Equality Court, but it’s an important example of Mcebo Dlamini, who was the SRC leader at Wits (University).
“He has said that he has an affinity with (Adolf) Hitler. This was seen as deeply disturbing to Jewish community and the Jewish community asked him to apologise.
“He underwent the process of going to the Holocaust Centre, reflected on what he had done and apologised. He said, ‘I realise what I did was incredibly insensitive and I now know what I did was wrong.
“That reconciliation process could not be done in his absence.”
The hearing continues.
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