Flyers of the old flag want to 'awaken feelings of white supremacy' - judge

Anyone who displayed the old South African flag wanted to “incite and awaken feelings of white supremacy against black people”.

Gauteng deputy judge president Phineas Mojapelo made this remark in a landmark judgment on Wednesday, when he declared that the display of the old flag constituted hate speech.

In his ruling, he said that those who displayed the old flag — which was used throughout the apartheid period — demonstrated a clear intention to be harmful and hurtful, and to incite and propagate hateful feelings, not only of victims of apartheid, but also to the country's budding democracy.

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The Nelson Mandela Foundation had sought an order declaring that gratuitous displays of the old flag be constituted hate speech, unfair discrimination and harassment based on race.

AfriForum had opposed the application.

At issue was the definition of hate speech in Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act), which restricted the type of expression which may constitute hate speech to “words” only.

“Those who display the old flag choose deliberately not only to display the apartheid discriminatory, divisive and oppressive flag; they also consciously and deliberately choose not to display the new democratic, all-uniting, non-racial flag,” Mojapelo said in the judgment of the equality court, also sitting as the high court.

He said those people chose an oppression symbol over a liberation symbol.

The new flag came into being in April 1994, in the month of the country's first democratic elections.

“What then is their intention? They intend to incite and awaken feelings of white supremacy against black people,” he said. “They wish to remind black people of the oppression, humiliation, indignity and dehumanisation that they moved away from and do not wish to relive or return to,” Mojapelo added.

Mojapelo said AfriForum was aware of the negative effect of the display of the old flag. He said AfriForum stated that most people recoiled from the display of the flag, but it did not wish to support declaring the flag's gratuitous display as hate speech.

“Why would [AfriForum] not support the curbing of its hateful, hurtful, harmful and inciteful effect towards black people (their fellow men and women)?

“Instead it chooses to pose as a champion of freedom of expression and chose not to engage with the hurt or reason behind the feelings of those who recoil from it,” Mojapelo said.

Sello Hatang, CEO of the Nelson Mandela Foundation, said the judgment was not a victory.

Victory would only come when Mojapelo's closing remarks were achieved.

“Because he pleaded with both AfriForum and us … to work together to help achieve what the constitution wants us to do, [to be] a nation that celebrates its diversity, [rather] than one that fights around its differences,” Hatang said.

Hatang said the judge was clear that he was not banning the flag.

AfriForum's Ernst Roets said the party would need to study the judgment fully before commenting.

However, he said the organisation's preliminary view was that the judgment was a setback for freedom of expression.

Roets said the judgment did not affect AfriForum directly, because it did not display the flag and actively discouraged its members from displaying the flag.

“This is not about us displaying the flag but it is about right to freedom of speech.  Our argument has been we concede the flag is offensive to the vast majority of people in the country, but the fact that it is offensive is not sufficient for it to be declared as hate speech,” Roets said.