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AfriForum loses appeal as court upholds ruling that apartheid flag is hate speech
The Supreme Court of Appeal dismissed the appeal application on Friday.
Ernst Roets is seen during an application by the Nelson Mandela Foundation (NMF) outlaw public displays of the old South African flag at the Equality Court on 29 April 2019 in Johannesburg. Picture: Gallo Images/Netwerk24/Felix Dlangamandla
AfriForum suffered another loss in court after the organisation appealed the ruling that displaying the apartheid flag is hate speech.
The Supreme Court of Appeal (SCA) delivered its judgment on Friday.
In the 33-page judgment, the SCA upheld the Equality Court’s 2019 ruling that declared any public display of the apartheid flag as hate speech, unfair discrimination and harassment in terms of the Equality Act.
The Equality Court had ruled in favour of the Nelson Mandela Foundation and the South African Human Rights Commission (SAHRC).
The applicants had approached the court following the infamous 2017 “Black Monday” protests against farm murders, in which the old apartheid flag was displayed.
Public controversy
The SCA unanimously agreed that the constitutional rights of people who displayed the flag in public were not infringed.
The court also rejected AfriForum’s argument that the Equality Court had no power to grant its declaratory order.
“The issue before the Equality Court was not hypothetical as there was a public controversy about the lawfulness of public displays of the old flag,” the court said in a summary of its judgment on Friday.
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It also disputed the suggestion that the public display of the flag was protected under the rights to freedom of expression and disagreed that the Equality Court’s order constituted a “wide reaching ban”.
“The high court did not impose a wholesale ban on displays of the old flag. Its public display for genuine artistic, academic or journalistic expression in the public interest, is not prohibited.”
‘Degrading, dehumanising’
The SCA stated that “gratuitous public display” promoted hatred against apartheid victims, adding that this constitutes unfair discrimination on the grounds of race.
“It is extremely degrading and dehumanising to those who suffered under apartheid. It exposes them the racial bigotry, detestation and vilification, and inspires hatred and extreme ill-will against them.
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“White supremacists around the world have used the old flag as a symbol of hatred, oppression and racial superiority,” the summary further reads.
“AfriForum did not challenge the evidence that the public displays of the old flag at the Black Monday protests were actual, and not merely prima facie proof of racial discrimination.
“The gratuitous public displays of the old flag also constitute harassment within the meaning [in] the Equality Act, because it seriously demeans, humiliates and creates a hostile and intimidating environment for the victims of apartheid.”
No costs order
The court, however, found that the Equality Court “erred” in ruling that “any” public display of the flag should be banned as it would “include a display within the privacy of a home”.
According to the SCA, the Nelson Mandela Foundation failed to state a claim on which such relief could be granted.
“Its case was squarely founded on public displays of the old flag at the Black Monday protests.
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“Further, the issue as to whether private displays of the old flag would contravene the Equality Act, was not properly and fully argued; neither in the high court nor in the SCA. It was, therefore, imprudent and inappropriate for the SCA to pronounce upon it.”
While the court issued no order as to costs of the appeal, it set aside the Equality Court’s ruling prohibiting “any” display of the flag.
“[The SCA] replaced it with an order prohibiting gratuitous public displays of the old flag, subject to provision 12 of the Equality Act. The SCA made no order as to costs.”
