By Lehlohonolo Lehana.
Lobby group Afriforum suffered another loss in court after they appealed the ruling that displaying the apartheid flag is hate speech.
The Supreme Court of Appeal (SCA) delivered its judgment on Friday.
In the 33-page judgment, the SCA upheld the Equality Courts 2019 ruling that declared any public display of the apartheid flag as hate speech, unfair discrimination and harassment in terms of the Equality Act.
The SCA unanimously agreed that the constitutional rights of people who displayed the flag in public were not infringed.
The court unanimously found the gratuitous public display of the old flag to constitute hate speech, unfair race discrimination and harassment in terms of the Equality Act.
The court also rejected AfriForum’s argument that the Equality Court had no power to grant its declaratory order.
“The issue before the Equality Court was not hypothetical as there was a public controversy about the lawfulness of public displays of the old flag,” the court said in a summary of its judgment on Friday.
The SCA stated that “gratuitous public display” promoted hatred against apartheid victims, adding that this constitutes unfair discrimination on the grounds of race.
“It is extremely degrading and dehumanising to those who suffered under apartheid. It exposes them the racial bigotry, detestation and vilification, and inspires hatred and extreme ill-will against them.
In 2019, the Nelson Mandela Foundation and the South African Human Rights Commission approached the equality court after the flag was displayed by demonstrators at a march against farm murders.
The Equality Court had ruled in favour of the Nelson Mandela Foundation and the South African Human Rights Commission (SAHRC).
AfriForum turned to the Supreme Court of Appeal following an earlier decision of the Equality Court declaring the gratuitous display of the apartheid-era flag as hate speech.
The court unanimously found the gratuitous public display of the old flag to constitute hate speech, unfair race discrimination and harassment in terms of the Equality Act.
But the lobby group’s Ernst van Zyl believes the ruling seeks to water down freedom of expression.
“AfriForum’s position in this old flag case does not mean that the organisation displays the flag or that we will not strongly oppose 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,” says Van Zyl.
While the court issued no order as to costs of the appeal, it set aside the Equality Court’s ruling prohibiting ‘any” display of the flag.
“[The SCA] replaced it with an order prohibiting gratuitous public displays of the old flag, subject to provision 12 of the Equality Act. The SCA made no order as to costs.”