Old SA flag a symbol of white supremacy, says Nelson Mandela Foundation ahead of court case

25 February 2019 - 14:57 By Ernest Mabuza
The old SA flag, reminiscent of apartheid, is the subject of a court application to have it defined as hate speech.
The old SA flag, reminiscent of apartheid, is the subject of a court application to have it defined as hate speech.
Image: Gallo Images/Volksblad/Charle Lombard

The old South African flag was a vivid symbol of white supremacy and black disenfranchisement and it also gave expression only to European heritage and excluded black people entirely.

This is contained in the heads of argument filed by the Nelson Mandela Foundation before the Equality Court, sitting in Johannesburg.

The foundation last year made an application to the Equality Court for an order declaring that gratuitous displays of the old, apartheid-era South African flag constituted hate speech, unfair discrimination and harassment based on race.

However, AfriForum has opposed the order and contends that, among other factors,  "displaying the old flag is constitutionally protected expression".

The first friend of the court, Pride, argues that the gratuitous display of the old flag amounted to hate speech or harassment not only against black people but also against members of the LGBT+ community.

The second friend of the court, Federasie van Afrikaanse Kultuurvereniginge, submitted that displaying the flag should not be banned.

The matter will be heard on April 29 this year.

In its heads of argument submitted to the court last week, the foundation said the displaying of the 1928 flag did more than cause offence and emotional distress. The foundation said all of the evidence showed the old flag demeaned and dehumanised people based on race.

"A gratuitous display of the 1928 flag is ‘hurtful' within the meaning of section 10 (1)(a) of the [Promotion of Equality and Prevention of Unfair Discrimination] Act, in that it wounds [and objectively demonstrates an intention to wound] people’s human dignity and undermines their equal worth," the foundation said in the heads of argument, prepared by advocates Tembeka Ngcukaitobi, Ayanda Msimang and Ben Winks.

In its answering affidavit to the foundation’s application, AfriForum said black people should simply "tolerate" such displays, or use them as an "opportunity to reflect on how far we have come as a nation".

The foundation, in its heads of argument, said AfriForum’s statement was profoundly insensitive, destructive of human dignity and equality and thus constitutionally untenable.

"Displaying the 1928 flag in all white homes, suburbs and schools is not necessarily 'hurtful' (except to the extent that black people are employed in these places) but it will still constitute hate speech under the Act, as it objectively demonstrates an  intention to 'be harmful or incite harm' as well as to 'promote hatred' … by communicating to others, including children, that apartheid was acceptable," the foundation said.


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