AfriForum, Mandela Foundation clash in flag appeal

AfriForum last week asked the Supreme Court of Appeal (SCA) to set aside a 2020 order by the Equality Court that displaying the old South African flag constituted prohibited hate speech, discrimination and harassment. In the August 2020 judgment, the court held that the gratuitous display of the apartheid-era flag – used from 1928 to 1994 – demonstrated a total rejection of reconciliation and a clear intention to be hurtful and incite harm. The case was brought by the Nelson Mandela Foundation after AfriForum and other organisations organised a demonstration against the murders of farmers in 2017, reports TimesLIVE. On that ‘Black Monday’, some demonstrators displayed the old flag, prompting the foundation to lay a complaint. It said the attendees demonstrated a clear intention to promote white supremacy. After the ruling by then Gauteng Deputy Judge President Phineas Mojapelo, AfriForum applied for leave to appeal. Some of the grounds of appeal include that public displays of the flag are protected by the right to freedom of expression, dignity and assembly, that the private displays of the same flag are protected by the right to privacy, and that the display of the flag does not constitute hate speech, harassment and unfair discrimination.

Arguing before the SCA, AfriForum's counsel, Advocate Mark Oppenheimer, said the Equality Court judgment created a principle that will be used by others to target symbols they deem offensive. ‘The question is what else will be hit by the principle.' Oppenheimer said mere hours after the Equality Court delivered its judgment, the EFF released a statement that the next flag that ought to be banned was the national flag of Israel on the grounds that Israel is an apartheid state. So the concern that was raised by (AfriForum) in original proceedings was that it will not end with the ban on the old SA flag. The principle that will be created can be used by others for their particular political purpose to ban a series of other symbols. The next symbol that was targeted in litigation was the Springbok symbol,' Oppenheimer said. TimesLIVE notes that Tembeka Ngcukaitobi, for the foundation, said it sought the dismissal of the appeal with costs. 'I shall urge the court to find that displays in public spaces are as hurtful and harmful as in private spaces. The law cries out for regulation of displays in private spaces more than it does for displays in public spaces because of the symmetry of power in private spaces,' he said. Ngcukaitobi said the foundation held the view that any gratuitous display of the old flag constituted hate speech and harassment prohibited by the Promotion of Equality & Prevention of Unfair Discrimination Act. The court reserved judgment.