South African court likens display of apartheid-era flag to hate speech

Judge President Phineas Mojapelo delivers judgment in the Nelson Mandela Foundation’s so-called “apartheid flag” case in the Equality Court sitting in the High Court in Johannesburg

Judge President Phineas Mojapelo delivers judgment in the Nelson Mandela Foundation’s so-called “apartheid flag” case in the Equality Court sitting in the High Court in Johannesburg

South Africa's Equality Court has restricted the display of the country's old apartheid-era flag, ruling that its gratuitous use amounts to hate speech and racial discrimination.

The Congress of South African Trade Unions said that "if the Nazi flag and the Confederate flag can be denounced in Germany and America, there is no reason to keep glorifying the apartheid flag".

The flag was the official standard of South Africa from 1928 until the end of apartheid in 1994, when it was replaced by a six-color flag whose Y-shape symbolizes unity.

The judge said the ruling did not translate to a total ban, but said it was a prohibition from displaying the old flag gratuitously. "They choose oppression over liberation".

While delivering his judgment, Mojapelo explained: "during the marches and protest demonstrations in which AfriForum played a central role, certain protesters displayed the old flag".

They did so after reports emerged that the flag, which was adopted by the apartheid regime, was displayed during Black Monday protests against farm murders in 2017.

Mandela, South Africa's first black president after decades of white-minority rule who died in 2013, is credited with spearheading the country's peaceful transition to full rights for all citizens.

Advocate Wim Trengrove SC for the Human Rights Commission took the argument further, saying public displays of the flag represented nostalgia for the old South Africa.

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Nelson Mandela Foundation CEO Sello Hatang points to South Africa's current flag as he welcomes a ruling against its old flag in Johannesburg Wednesday.

AfriForum, which opposes the virtual banning of the flag, argued that displays of the flag did not constitute hate speech. "However, he said the move was not a complete ban, because use of the divisive flag associated with the apartheid years is protected by law for artistic, academic, journalistic and other purposes in the public interest".

Dakota Legoete, spokesman for the ruling African National Council party, said the court's decision was a "national victory".

"We must be a nation that celebrates our diversity instead of fighting over our differences", she said.

However, Advocate Tembeka Ngcukaitobi, for the Nelson Mandela Foundation, countered that freedom of expression was not a founding value of the constitution. "We cherish freedom of expression and for us displaying the flag is not sufficient ground for hate speech".

It said the display constitutes hate speech, unfair discrimination and harassment based on race.

"The display of the flag from the perspective of the victims, it's quite clear that its meaning is one of racial superiority and worse than that, racial domination", said AfriForum's Ernst Roets. "Therefore in our efforts to heal the wounds of the past and build a society that is cohesive, we must at all material times be mindful of our actions, especially as they relate to the pain and scars inflicted by the past", said Mabuza. The Nelson Mandela Foundation said: "We should not be poisoning the future through gratuitous displays of the old flag".

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