Old-SA flag flutter heads to court

28 April 2019 - 00:00 By SHAIN GERMANER

The legal conundrum surrounding the banning of displays of the old South African flag has escalated, drawing a range of figures and organisations into the fray.
The Johannesburg equality court will tomorrow be the stomping ground for the battle between the Nelson Mandela Foundation (NMF) and AfriForum. But the minister of justice, the South African Human Rights Commission, Johannesburg Pride and the Federasie van Afrikaanse Kultuurvereniginge have joined the debate, arguing over the possibility of a ban, the nature of the constitutionality of such bans, the right to freedom of speech, a push for a change in legislation and whether the equality court even has the power to make such a decision.
The case has been brewing since late 2017, when reports emerged that the 1928 South African flag was being displayed at a Black Monday protest over murders of farmers, organised by AfriForum.
Even the allegations that the flags were flown at all came into dispute, with several publications later withdrawing these reports and one journalist admitting he had not verified the image he had shared on social media of protesters flying the flag.However, NMF CEO Sello Hatang cited an online statement by Midvaal mayor Bongani Baloyi who said he personally witnessed displays of the flag on the day of the protests.A dispute arose between the NMF and AfriForum over whether such displays ought to be constitutionally protected.Hatang, in his initial complaint to the court, detailed how hearing the reports of the old flag being proudly displayed brought up painful personal memories of his own lived experience of racism as a child.
He insisted any gratuitous display of the flag constituted hate speech and harassment under the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda).
The foundation clarified that gratuitous displays would be defined as those that served no journalistic, academic or artistic purpose in the public interest.
AfriForum's Ernst Roets responded that such a far-reaching ban would be a "constitutional infringement of the right to freedom of expression".
"We acknowledge that the old South African flag has the capacity to cause offence and emotional distress.
"As an organisation, we have no particular love for the flag or what it represents . [However], as Evelyn Beatrice Hall so eloquently phrased the sentiment: 'I wholly disapprove of what you say, but will defend to the death your right to say it'," Roets wrote.
He also argued that the banning of such flags could lead down the slippery slope of censorship.Over the past year, since the initial responses were submitted to the court, the organisations involved have refined their arguments, with some requesting the court to make a number of rulings beyond the ban.The court has been asked to determine the flag's meaning, whether or not its display constitutes hate speech, harassment or unfair discrimination, what an appropriate remedy would be, and whether Pepuda is unconstitutional, as it refers only to words that could potentially be harmful - not to symbols such as the flag.In its heads of argument, the NMF said: "On its face, the 1928 flag itself was a vivid symbol of white supremacy and black disenfranchisement."Displaying the flag of apartheid South Africa represents support for that crime . a total rejection of tolerance, reconciliation and all of the values underlying the constitution."

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