EXPLAINER: What exactly is hate speech and does it apply to old SA flag?
Nelson Mandela Foundation and AfriForum duke it out in court over banning of flag. These are their arguments
Should the gratuitous display of the old apartheid-era flag be considered hate speech?
This is the question South Gauteng High Court deputy judge president Phineas Mojapelo grappled with on Monday as he heard an application by the Nelson Mandela Foundation and the SA Human Rights Commission.
The foundation wanted the Equality Court to declare that the gratuitous displays of the old flag constituted hate speech, unfair discrimination and harassment based on race.
At issue is the definition of hate speech in section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act), which only restricts the type of expression that may constitute hate speech to “words” only.
The commission has asked that if the court holds that section 10 of the Equality Act is confined to the expression of hate speech by words and not by conduct, the court should declare that the section was unconstitutional in so far as it failed to prohibit hate speech by means other than words.
The application was opposed by AfriForum, which listed a number of reasons why the application should be dismissed.
Counsel for the foundation Tembeka Ngcukaitobi asked the court to balance the right to freedom of expression against the right to equality and human dignity.
He also accused AfriForum of creating a platform for the display of the flag at its events.
What triggered the application by the foundation was the display at the “Black Monday” marches organised by AfriForum to protest against farm murders in October 2017.
“AfriForum must tell us why white people in white events must continue displaying the apartheid flag,” Ngcukaitobi said.
Counsel for the commission Wim Trengove SC said section 10 of the Equality Act contemplated the prohibition of hate speech.
“When regard is had to the purpose for which the Equality Act was enacted, ‘speech’ must be widely interpreted to mean all forms of expression of ideas; it is not limited to verbal presentations,” Trengove said.
People who gratuitously display the apartheid-era flag yearned for a South Africa where white superiority was institutionally entrenched, he added.
“What they say is that ‘we yearn for the good old South Africa when we lived in a state which entrenched white superiority over black people, where white people were celebrated and black people were humiliated’,” said Trengove.
However, AfriForum said the ban would be an unconstitutional infringement of the right to freedom of expression.
Counsel for AfriForum Mark Oppenheimer said the relief sought by the foundation could not be granted by the court.
Oppenheimer said the relief sought by the foundation did not relate to unfair discrimination, hate speech or harassment that had already taken place, as section 21 of the act demanded.
“The relief targets prospective conduct that has not yet taken place. Therefore this court does not have the power to grant the relief sought by the foundation,” Oppenheimer said.
He said the foundation also sought to declare events that had not yet taken place to be infringements of the act.
“This relief is at odds with the approach taken by our courts not to decide on issues that are abstract, academic, prospective or hypothetical. Therefore, its application should be dismissed.”