Displaying the apartheid- era flag in public is now a crime in South Africa.
The ruling by Johannesburg High Court said publicly displaying the flag constitutes discrimination against black people and violates equality laws.
“It is declared that subject to the provisor in Section 12 of the Equality Act, any display of the old flag constitutes; a) hate speech in terms of Section 10.1 of the Equality Act. b) Unfair discrimination on the basis of race in terms of Section 7 of the Equality Act”, said High Court judge, Phineas Mojapelo.
We are concerned about where the line should be drawn between freedom of expression and hate speech.
The decision is in response to a request from the Nelson Mandela Foundation following a white farmers’ demonstration in 2017. The flag had been flown while they were denouncing the murder of some of their members. Two Afrikaans lobby groups say banning the flag would stifle freedom of expression.
“In our view as we’ve argued in this case, displaying something, displaying a symbol, displaying a flag even if it’s a very offensive flag or a very offensive symbol, simply displaying it in our view is not sufficient for it to be hate speech. For it to be hate speech, it has to be coupled with some form of a call to action to actually inflict harm or something to that effect,” said, Afriforum Deputy CEO, Ernst Roets.
The Apartheid flag comprises horizontal blue, white and orange bands with three small flags of Britain, the Orange Free State and the South African republic.
The flag, which originally symbolized the union of the Afrikaner and Anglophone white communities, had come to be associated with the apartheid or racial segregation regime, which had been in place since 1948.