Gratuitous display of the apartheid-era flag demonstrates a total rejection of reconciliation as well as a clear intention to be hurtful and incite harm.

This is according to Gauteng deputy judge president Phineas Mojapelo.

In an Equality Court matter on Wednesday, he found that displaying the old flag constitutes prohibited hate speech, discrimination and harassment.

Mojapelo made this ruling as he passed judgment in favour of the Nelson Mandela Foundation and the SA Human Rights Commission in their application that the display of the 1928 flag be classified as hate speech.

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The application was triggered by the display of the old flag at the “Black Monday” marches organised by AfriForum to protest against farm murders in October 2017.

Passing judgment, Mojapelo held that reference to "words" in section 10 of the Equality Act must be given a a generous and wide meaning.

"When regard is had to the interpretation of the Act, 'words' in the section must be interpreted to include ideas, symbols and non-verbal meanings, including the waving of a flag," Mojapelo said.

Mojapelo said the main purpose of section 10 was prohibition of all hate speech, which could be communicated by other forms of expression other than words.

If hate speech was only restricted to words, Mojapelo said it would mean victims of hate would not have recourse if the aggressor used non-verbal means.

Mojapelo also said speech was not limited to words but also extended to conduct and gestures.

Mojapelo said the displaying of the old flag gratuitously caused more than emotional stress to black people.

He said those who displayed the old flag sought to remind black people of their oppression that they had moved away from.

Mojapelo said the use of the old flag should be allowed for academic and other uses if there was justification for it.

The Nelson Mandela Foundation had asked the Equality Court to declare that the gratuitous displays of the old flag be constituted hate speech, unfair discrimination and harassment based on race.

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 only restricted the type of expression which may constitute hate speech to “words” only. 

The human rights commission supported the relief sought by the foundation.

The two organisations also asked that if the court holds that Section 10 of the Equality Act was confined to the expression of hate speech by words and not by conduct, the court should declare that the section was unconstitutional in so far as it failed to prohibit hate speech by means other than words.

The application was opposed by AfriForum, which listed a number of reasons why the application the case should be dismissed.

Mojapelo said he could not grant the declaration of constitutional invalidity of section 10 in view of what he had found about the section.