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Judge labels display of apartheid flag as divisive and retrogressive

In his ruling, Judge Phineas Mojapelo declared the gratuitous display of the apartheid flag constituted hate speech, unfair discrimination, and harassment.

The Equality Court in Johannesburg on Wednesday 21 August 2019 ruled that the gratuitous display of the apartheid flag constituted hate speech. The case was brought by the Nelson Mandela Foundation and the South African Human Rights Commission following displays of the old South African flag during a protest in 2017. Picture: @NelsonMandela/Twitter.

JOHANNESBURG - The Equality Court said that the apartheid flag was a vivid symbol of white supremacy and suppression.

On Wednesday, Judge Phineas Mojapelo delivered judgment in a case brought by the Nelson Mandela Foundation and the South African Human Rights Commission following displays of the old South African flag during a protest in 2017.

In his ruling, Mojapelo declared the gratuitous display of the apartheid flag constituted hate speech, unfair discrimination, and harassment.

He said such displays demonstrated the clear intention to be hurtful, incite harm and propagate hatred against black people.

“Such display is furthermore divisive, retrogressive, and disruptive of our non-racial democracy, the constitutional values of human dignity and equality, and a building of a society united in its diversity.”

This, however, did not mean the flag had been banned. The judge explained that even though it constituted hate speech, it could still be used for other purposes other than to inflict harm.

The applicants in the matter also wanted a section of the Equality Act, which was interpreted to prohibit hate speech only in the form of words, to be declared unconstitutional.

Judge Mojapelo said that argument fell away now that he addressed the question of the interpretation of the hate speech clause to include more than just words as the law referenced.

POLITICIANS HAVE THEIR SAY

While some parties have welcomed the ruling, some in the opposition are not convinced by it.

Democratic Alliance Member of Parliament Annelie Lotriet said her party notes the ruling officially declaring the gratuitous display of the old South African flag as hate speech but added that an outright ban was a position the party did not support.

She said the democratic flag must now act as a symbol of hope for a better tomorrow, which the DA is committed to.

Freedom Front Plus chief whip Corné Mulder also added his voice saying the ruling did not only undermined the right to freedom of expression, but it was also a biased decision that undermined reconciliation and nation-building in South Africa.

The Economic Freedom Fighters (EFF) welcomed the ruling, saying statues, street names and apartheid symbols should also be declared hate speech.

NATION-BUILDING

The Nelson Mandela Foundation said it hoped the ruling would contribute towards nation-building.

The foundation’s Sello Hatang said he was hopeful that AfriForum and other parties which opposed their legal application could work towards a better South Africa.

“This is not banning the old flag, it’s ensuring that we build the nation we imagine and part of that reimagination is ensuring that we do not gratuitously display the flag.”

Hatang said the unprecedented ruling would only be a success when everyone works together and celebrated its diversity instead of fighting around its differences.

He said they were not satisfied.

“We’re hoping to join hands with AfriForum and other parties to say our woundedness should dare not wound the future. We should not be poisoning the future through the gratuitous display of the flag.”

AfriForum opposed the application, saying the flag did not constitute hate speech and that banning certain symbols like the old flag does not change people’s opinions.

The organisation’s Ernst Roetz said: “We are concerned about where the line should be drawn between freedom of expression and hate speech. In our view, as we’ve argued in this case, displaying something – even if it’s a very offensive flag – is not sufficient for it to be hate speech.”

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