Well, this one was always going to end up in court at some point, and here we are.

This week, the Nelson Mandela Foundation is asking the Equality Court in Johannesburg to declare the display of the old South African flag as hate speech.

Their case is linked to the #BlackMonday protests that took place around the country in October 2017, which were led in part by AfriForum.

The organisation’s CEO, Kallie Kriel, says that whilst AfriForum members are discouraged from displaying the flag (some did not listen – hence that image up top), banning doing so would be wrong.

GroundUp with a summary of what lies at the heart of the legal matter:

The Promotion of Equality and Prevention of Unfair Discrimination Act, also known as the Equality Act, defines hate speech as showing a clear intention to be hurtful, incite harm and promote hatred. All three conditions must be present for hate speech to exist. This does not include genuine engagement in artistic creativity, academic and scientific inquiry and fair and accurate reporting in the public interest.

The Nelson Mandela Foundation’s CEO, Sello Hatang, argues that witnessing people displaying the flag “recalled instances of racial abuse from his youth”:

“Gratuitous displays of the old flag, which serve no genuine journalistic, academic or artistic purpose in the public interest, are not about remembering but about forgetting our painful past. They do nothing to advance social justice, national unity and human dignity; quite the opposite. They cannot be protected by our Constitution, or defended in the name of tolerance, reconciliation and all of the values underlying the Constitution.”

Johannesburg Pride, representing the LGBT+ community, has also joined forces with the Mandela Foundation, saying that displaying the old flag “demeans, humiliates, and creates a hostile and intimidating environment toward members of the LGBT+ community who were also victims of apartheid and its legacy”.

On the other side stands AfriForum, which says that banning the flag would be “an attack on free speech”. According to deputy CEO Ernst Roets (below), any wide-reaching ban would be “an unconstitutional infringement of the right to freedom of expression”:

Freedom of speech is the pre-eminent freedom guaranteed under the Constitution, argues Roets: “Freedom of expression is the cornerstone of a functioning democratic state. It gives people the opportunity to be exposed to differing viewpoints to make informed and legitimate decisions about their political lives.

“If citizens are under the impression that the ideas they are exposed to have gone through a filtering process to remove all inappropriate forms of expression, then they are less likely to be critical of the material that they consume. Societies that allow for a broad selection of opinions create an environment that strengthens people’s analytical skills and trains them to question the views that are presented to them.”

Roets argues that displaying the old flag is not hate speech, and does not amount to a call for action or an incitement to cause harm. He also raises the issue of farm murders, which he says the Nelson Mandela Foundation is dismissive of.

The arguments are currently being heard, and are supposed to last through today and tomorrow, so we should know what those findings will be soon enough.

AfriForum, a word of advice – don’t call Steve Hofmeyr to argue on your behalf.

[source:groundup]