Court asked to rule that 'black people count'

By seeking a declaratory order that displaying the apartheid flag amounts to hate speech under the Promotion of Equality and Prevention of Unfair Discrimination Act, the Nelson Mandela Foundation was asking the court for ‘an affirmation, that black people count'. Legalbrief notes this was argued by counsel for the foundation, Advocate Tembeka Ngcukaitobi, before the Gauteng High Court (Johannesburg) reserved judgment on the matter on Tuesday. He was replying to arguments that had been made on Monday afternoon and Tuesday morning by AfriForum and the Federasie van Afrikaanse Kultuurvereniginge (FAK) that, while displaying the flag may be hurtful, it was not hate speech, says a Mail & Guardian report. On Tuesday morning, Iain Currie, for FAK, acknowledged that the unity the flag symbolised when it was adopted was limited to unity between white people to the exclusion of black people. ‘Yes, you cannot ever wash that stain from it,’ he said in response to a question from Deputy Judge President Phineas Mojapelo. But he said that the ‘marketplace of ideas’ was sufficient to push back against that. The marketplace of ideas could be trusted to deal appropriately with such speech, it did not merit state intervention, he said. He added that it could be seen on social media how quickly racism was dealt with. Earlier, AfriForum’s Mark Oppenheimer had said that the Constitution’s free expression clause protected all speech unless it was specifically prohibited. To be specifically prohibited the speech must not just be hurtful, it must also amount to the propagation of hatred and incitement of harm. ‘Once we start banning things just because they are hurtful, we are opening up the floodgates,’ he said.

Full Mail & Guardian report

Ngcukaitobi countered that the right to freedom of expression did not trump the right to human dignity and the right to equality, which were also foundational values of the Constitution. ‘It is constrained primarily by dignity, it is constrained primarily by freedom, it is constrained primarily by equality.’ Ngcukaitobi said it was important to regulate speech that would assault people’s dignity and equality, notes a TimesLIVE report. ‘Constitutionally speaking, what that means is that when we interpret expression, we must do so through the prism of dignity and equality; we cannot ultimately interpret expression in a way that allows the indignity visited upon black people in a way that promotes inequality among black people,’ said Ngcukaitobi. He said the foundation did not come to court to ask AfriForum and its supporters to stop racism and to stop their own racism. ‘We have not even come to ask that they should stop grooming their children to become racists and white supremacists. If they want to, that is their choice. What we have come to do is to stop them from speech that dehumanises black people on the grounds of group identity, on the grounds of race,’ Ngcukaitobi said. Ngcukaitobi said Oppenheimer was arguing that in the world of democracy, opinions – even those that were offensive views – must be expressed. ‘What he does not appreciate is that dehumanising speech is not about opinion. It is about the denial of humanity. That is what apartheid ultimately represents and so the flag is the most visible freedom, not just of white supremacy, but the most visible symbol of the dehumanising effect that apartheid became,’ said Ngcukaitobi.

– TimesLIVE

Earlier, Oppenheimer submitted articles published by a media house which showed a picture of a black man holding the apartheid flag during a protest in 2017. He also presented a photo of a black woman clad in a dress in the colours of the apartheid-era flag to support his argument that black protesters also used the apartheid flag in their expression, and therefore it should be allowed, notes News24. Mojapelo told Oppenheimer that the apartheid flag had a history, and its function came to an end in 1994. He questioned Oppenheimer on whether he acknowledged that the display of the flag can cause harm to some people who come across it. The ANC's acting national spokesperson Dakota Legoete was in court in support of the application by the foundation. ‘The flag has a place in our country, and that is in our museums and archives, nowhere else. This is like asking a Holocaust victim of the Nazi regime in Germany to place the swastika on their dining room tables,’ Legoete is quoted as saying.

Full Fin24 report