The government says the old SA flag is widely recognised as a symbol that promotes white racial supremacy and can be put in the same category as the swastika.
However, the department of justice admits that current legislation does not technically define the flag as hate speech. The law would need to be amended for it to be classified as such.
Specialist state law adviser Theresa Molomoitime Ross, on behalf of the justice department, filed an affidavit last week in response to the Nelson Mandela Foundation’s Equality Court bid to ban “gratuitous” public displays of the flag on the basis that such displays amount to hate speech.
The foundation launched legal action following at least two verified displays of the old flag at “Black Monday” demonstrations against farm murders in October 2017.
It says the flag “belongs in museums, documentaries and cathartic creative works”, and not on public display, where it can cause deep hurt and harm to black South Africans who were oppressed under apartheid.
The application is being opposed by AfriForum, which argues that while it does not support public displays of the old flag, banning such displays would be a “setback for freedom of speech and our democracy”, and could set a negative precedent.
According to Ross, it is the position of the justice department that “there is no place in the democratic South African society for the display and waving of the old flag in our communities”.
“Such conduct should be condemned in the strongest terms as it imputes to those hoisting the old flag that they reminisce and long for the days when the old flag was the national flag of the country between 1928 and 1994. This is also the period during which the system of apartheid was government policy in the country, a system determined to be a crime against humanity.”
But, she says, the Promotion of Equality and Prevention of Unfair Discrimination Act, which currently defines hate speech, is limited only to words that “demonstrate a clear intention to be hurtful, be harmful or to incite harm, promote or propagate hatred”.
She says the government supports an application by the South African Human Rights Commission, as part of the old flag case, to have this section of the act declared unconstitutional and amended so that symbols like the flag can be defined as hate speech.
Ross also says the government’s new Hate Speech Bill, which is yet to be passed into law, defines communication of hate speech far more broadly, to include “display, written, illustrated, visual or other descriptive matter, oral statement, representation or reference; or an electronic communication”.
It also defines harm as including any “emotional, psychological, physical, social or economic harm”.
Under the bill, a person can be convicted of hate speech if they intentionally publish, propagate or advocate anything that “could reasonably be construed to demonstrate a clear intention to be harmful or incite harm; or promote or propagate hatred”.
And that could include public displays of the old SA flag.
“It is the (justice) minister’s and the department’s position that the image of the old flag does constitute hate speech as it advocates hatred based on race and ethnicity and constitutes incitement to cause harm,” Ross states in court documents.
She adds that it is therefore not necessary for the Equality Court to rule on whether the old flag should be banned outright.
“The application falls to be determined in the same manner as any form of verbal expression that has recently come before this court,” she states.
“It is a form of expression that must be determined on its own merits to determine whether, in the context of South African society, it amounts to ‘the advocacy of hatred’ or ‘incitement to cause harm’.
“The gratuitous display of the image at a rally or protest march would certainly be a relevant consideration in such an assessment.
“At this stage of South Africa’s history it is difficult to contemplate a time when the display of the old flag would not be interpreted as the advocacy of hatred or an incitement to cause harm. Should this position change, for example, in the next century, the analysis of whether the image comprises hate speech may result in a different outcome,” she states.
The old flag case is due to be argued in April 2019...