Daniel Friedman
3 minute read
21 Aug 2019
3:37 pm

WATCH: Old SA flag not hate speech without ‘call to action to inflict harm’ – AfriForum

Daniel Friedman

'Simply displaying it in our view is not sufficient for it to be hate speech,' says Ernst Roets.

Ernst Roets AfriForum Head of Policy and Action speaks to the media after Judge President Phineas Mojapelo delivered judgment in the Nelson Mandela Foundation’s so-called “apartheid flag” case in the Equality Court sitting in the High Court in Johannesburg. 21 August 2019. Picture: Tracy Lee Stark

Outside the Equality Court on Wednesday following an Equality Court ruling that “gratuitous displays” of the old South African flag constitute hate speech, AfriForum’s head of policy and action Ernst Roets expressed his “concern” over the ruling.

The lobby group opposed the Nelson Mandela Foundation’s now successful attempt at having displays of the flag limited.

“Whether it’s a flag or it’s a symbol, simply displaying it in our view is not sufficient for it to be hate speech,” Roets said.

“For it to be hate speech it has to be coupled with some call to action to action to inflict harm or something to that effect.

“That is our concern with this matter, obviously we have always been and will always be open to discussion and we will gladly take up the Nelson Mandela Foundation to engage in further discussions regarding the issue.”

He added that he would need to go through the judgment thoroughly before commenting on its specific content.

The case has its background in the “Black Monday” protests against farm attacks in 2017, where some of the attendees are believed to have displayed the flag, though this is disputed by people including Afriforum’s CEO Kallie Kriel, who called reports of this “fake news” on an SABC2 debate.

“On social media, photos of protesters carrying the old flag were circulated, but at least some of these photos were fake or for a different event,” GroundUp reported.

READ MORE: Equality Court rules ‘gratuitous display’ of the old SA flag constitutes hate speech

The alleged display of the flag led to a press release from the Nelson Mandela Foundation, which said it showed support for the apartheid system from some “Black Monday” protesters, and later an affidavit calling for “gratuitous display” of the flag to be legally curtailed.

The foundation’s argument was not that the flag should be banned but that “gratuitous displays” of the apartheid-era South African flag should be legally considered hate speech.

AfriForum said they had no particular love for the flag but saw the issue as one of freedom of speech, and so opposed the foundation’s application, arguing that only words, not symbols and images, constituted hate speech according to the Equality Court’s definition.

AfriForum also argued that the right to freedom of expression as enshrined in the Constitution would be violated by attempts to ban the flag.

In his judgment on Wednesday, Judge Phineas Mojapelo criticised AfriForum’s “literal interpretation” of the law by trying to limit the understanding of expression of ideas to that conveyed by “words” alone. He said the reference to “words” should be understood as communication beyond verbal or written language alone, but that symbols, too, could be covered.

A flag could, therefore, be considered a form of speech.

He also said the freedom of speech defence was illogical and should be dismissed, as there are limits to this freedom. He said the right to display the flag needed to be balanced against protecting human dignity and human rights, particularly those of the formerly oppressed black majority.

(Background reporting, Daniel Friedman)

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