Apartheid flag ban will continue to fly

The Supreme Court of Appeal (SCA) has dismissed lobby group AfriForum’s application to have the banning of the old South African flag overturned. 

This comes after the Equality Court ruled that the display of the old orange, white and blue flag is harmful, incites harm and promotes and propagates hatred in terms of the Equality Act. 

AfriForum disagreed it was a form of hate speech and took the case on appeal. 

On Friday, the appeal court in Bloemfontein agreed with the Equality Court, finding against AfriForum’s contention that displays of the flag should be allowed in terms of the country’s freedom of speech laws and the right to privacy. 

In October 2017 the lobby group played a leading role in nationwide demonstrations against farm murders in what were widely called the "Black Monday" protests The old flag was prominently displayed at these events. 

This led to the Nelson Mandela Foundation Trust laying a complaint against AfriForum, arguing that public displays of the flag contravened the Equality Act. The minister of justice and constitutional development and the department of justice and correctional services were joined as parties in high court proceedings by the South African Human Rights Commission (SAHRC).

The high court issued a declaratory order that the display of the old flag at Black Monday protests constituted hate speech, unfair discrimination and harassment, within the meaning of the Equality Act. 

AfriForum challenged the ruling, arguing that public displays of the old flag were protected under the rights to freedom of expression, dignity and freedom of assembly. The organisation said flag displays did not constitute hate speech, unfair discrimination or harassment as envisaged in the Equality Act, and that private displays of the flag were protected by the right to privacy.  

In Friday’s judgment, the SCA held that the constitutional rights to dignity and freedom of assembly of people who gratuitously display the old flag were not implicated. AfriForum’s procedural defences that the court had no power to grant the declaratory order was dismissed. 

But the SCA found the court was empowered to make the order as the case was not hypothetical and there was a very real public controversy about the lawfulness of public displays of the flag.  

The SCA held that publication, propagation or communication of words includes the expression of ideas by conduct and the gratuitous public display of the old flag was on prohibited ground, namely race. This because it symbolises apartheid and white supremacy in a clear and painful manner. 

The court found displays of the flag could reasonably be construed as demonstrating a clear intention to be harmful and to incite harm. Those who publicly hold up or wave the old flag convey a brazen, destructive message that they celebrate and long for the racism of a past, in which only white people were treated as first-class citizens and black people were degraded and demeaned. Flag displays also incited harm by igniting exclusion, hostility, discrimination and violence against black people.

The SCA found “any gratuitous public display of the old flag satisfies the requirement of promoting and propagating hatred as envisaged in ... the Equality Act” by degrading and dehumanising those who suffered under apartheid. 

The court dismissed AfriForum’s claim that the high court order constituted a "wide-reaching ban" on the flag's display and an unconstitutional infringement on the right to freedom of expression as public displays for genuine artistic, academic or journalistic expression were not prohibited. 

The court did not pronounce on the private display of the flag. 

AfriForum spokesperson Ernst van Zyl said: “Freedom of expression as a right has unfortunately become watered down in this country. It is a principle that has become the victim of ridiculous double standards and the future consequences will likely be dire.” 

He said AfriForum did not intend to display the old flag and strongly opposed genuine hate speech, “which is the propagation of hatred against a group of people based on their identity and when the statement contains an incitement to cause harm. 

“We are entering very chaotic and dangerous waters when the law can be wielded to attempt to protect people from feelings of offence alone.”

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