Defence lawyers for lobby group AfriForum ruffled feathers on Wednesday when they argued before the Supreme Court of Appeal in Bloemfontein that people who display the old SA flag must be allowed to express their reasons for doing so before the display can be regarded as hate speech.

The group is arguing against a 2020 order by the equality court that displaying the flag constitutes hate speech, discrimination and harassment.

The matter was brought by the Nelson Mandela Foundation after AfriForum and other organisations displayed the old flag during protests against the murders of farmers in 2017.

The group says though its members do not display the old flag, the blanket ban “set a dangerous precedent that anything causing offence can and should be banned, even if there is no call for violence or to cause imminent harm”.

Its campaign officer Ernst Van Zyl said the law should not be used to attempt to protect people from the offence “seeing as the spectrum of what different people find offensive is nearly endless”.

Legal representative for the group Mark Oppenheimer added there are benefits to uncensored freedom of speech. He also argued that if minority groups are allowed to wave the flag, they can be easily identified and this could help “get a sense of the temperature in society and try to counter dialogue it”.

The foundation's advocate Tembeka Ngcukaitobi said any gratuitous display of the flag constituted hate speech and harassment.

“I shall urge the court to find that displays in public spaces are as hurtful and harmful as in private spaces. The law cries out for regulation of displays in private spaces more than it does for displays in public spaces because of the symmetry of power in private spaces,” he said.

The foundation sought the dismissal of the appeal with costs.

Judgment on the matter was reserved.

The court battle sparked outrage on social media. Here are some of the views shared: 

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