On 21 August 2019, Phineas Mojapelo, the Deputy Judge President of the South Gauteng Division of the High Court in the case of, Nelson Mandela Foundation Trusts v Afriforum NPC ([2019] ZAEQC 2) ruled that the display of the pre-1994 South African flag – the apartheid flag – constitutes hate speech.

It was a powerful ruling and is one in a series of high profile hate speech cases which the South African courts have recently had to grapple with.

Earlier this month, SANEF and a number of journalists argued in the Equality Court that the EFF’s targeting of them amounted to hate speech.

Jon Qwelane is bringing a constitutional challenge before the Supreme Court of Appeal (SCA) to the hate speech provisions in the Equality Act following the publication of his article, “Call me names – but gay is not okay“.

And most recently, on 27 August 2019, the Constitutional Court heard argument as to whether Cosatu’s Bongani Masuku had engaged in hate speech against Jews when he made threatening comments directed at “Zionists”.  Judgment is awaited in all these other cases.

The challenge to the apartheid flag before the Equality Court was brought by the Nelson Mandela Foundation and the South African Human Rights Commission (SAHRC) following nationwide public demonstrations in October 2017, organised by Afriforum, against farm murders.  During these demonstrations, some protestors displayed the apartheid flag.

The applicants sought an order declaring gratuitous displays of the apartheid flag to be hate speech, unfair discrimination and harassment under the Equality Act.  ‘Gratuitous’ displays are those that do not serve any genuine academic, scientific, artistic or journalistic purpose – these receive protection in the Equality Act itself

Afriforum, who opposed the application, claimed that the Equality Act, in terms, only prohibits “words” which could reasonably be construed to be hate speech. According to Afriforum, the apartheid flag (a symbol) could not constitute hate speech as defined in the Equality Act as it did not amount to “words”.  Afriforum had a point, if “words” is to be interpreted literally.

But in a demonstration of the potency of principles of constitutional interpretation, this literal approach was rejected by Mojapelo.  The reference to “words” in the Equality Act must be given a generous meaning going beyond mere verbal representations. It is obvious that hate speech can extend beyond words.  To hold otherwise would be irrational, would run contrary to the letter and spirit of the Constitution and the main purpose of the Equality Act which is to prohibit all hate speech (and not just “words”).  So “words” does not only mean “words” but extends to non-verbal acts – such as displaying a flag.

The next step was for the court to unpack the meaning of waving the apartheid flag.  Its dominant meaning was clear – these acts were an endorsement of the system of apartheid.  In a particularly poignant paragraph of the judgment, Mojapelo said:

“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. They choose an oppression symbol over a liberation symbol. … They intend to incite and awaken feelings of white supremacy against black people … 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 concluded that gratuitous displays of the apartheid flag satisfied the hate speech test in the Equality Act: a clear intention to be hurtful, harmful and to propagate hatred against black South Africans.  It was therefore prohibited hate speech.

There are some – including Afriforum which is applying for permission to appeal the judgment – who say that the ruling undermines freedom of expression.  But this is not so.  Our courts have never held that the right to freedom of expression is absolute and trumps all others.  It is expressly limited by the constitutional rights to human dignity and equality.  Hate speech cases require courts to balance these rights in the context of the facts of the case and with an appreciation of South Africa’s repressive and ugly history.  The apartheid flag case clearly struck that balance correctly.  Gratuitous displays of the flag constitute hate speech, as Mojapelo held – even if all three requirements – hurtful, harmful and propagating hatred – are necessary for such a finding.  On the free speech side of the balance, displays of the flag that are not gratuitous – such as using it to illustrate a news story on the case itself or in a satirical cartoon mocking Afriforum for losing the case would not constitute hate speech under the Equality Act.

But beyond the law, gratuitously displaying the apartheid flag is a callous act that has no place in South Africa.  It is as bad, as Mojapelo said, as uttering the ‘k’ word. The apartheid flag case has made a significant contribution to our emerging hate speech jurisprudence.  Judgements in the cases involving SANEF, Qwelane and Masuku will provide further clarity.  Ultimately, the question in all these case is the same – has the legal line been crossed between free speech and hate speech.

Dario Milo and is a partner and Lavanya Pillay an associate at Webber Wentzel.  They acted for the SAHRC in the apartheid flag case and act for friends of the court in the SANEF and Masuku cases.

This article was originally published in the Sunday Times, South Africa, and is reproduced with the permission of the authors.