Afriforum defends use of apartheid-era symbol while the Mandela Foundation says its display is both offensive and unconstitutional
The Nelson Mandela Foundation asked for the display of the apartheid-era flag to be banned, following its use during a Black Monday protest against farm murders in 2017.Should the gratuitous display of the apartheid-era flag be considered hate speech?
At issue is the definition of hate speech in Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act , which only restricts the type of expression which may constitute hate speech to “words” only. Counsel for the foundation, Tembeka Ngcukaitobi, asked the court to balance the right to freedom of expression against the right to equality and human dignity.What triggered the application by the foundation was the display at the “Black Monday” marches organised by AfrForum to protest against farm murders in October 2017.
“When regard is had to the purpose for which the Equality Act was enacted ‘speech’ must be widely interpreted to mean all forms of expression of ideas; it is not limited to verbal presentations,” Trengove said. Oppenheimer said the relief sought by the foundation did not relate to unfair discrimination, hate speech or harassment which had already taken place, as Section 21 of the Act demanded.
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