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WATCH|Displaying the old SA flag at home also constitutes hate speech

The South African Equality Court ruled on August 21 2019 that displaying the country's apartheid-era flag in public constitutes hate speech, in that it discriminates against black people and violates equality laws.

If you have an old SA flag up in your home and think you'll be allowed to keep it‚ you are wrong.

The display of the flag‚ even in private spaces‚ also constituted hate speech‚ the Equality Court said on Wednesday.

Phineas Mojapelo‚ deputy judge president of the Gauteng High Court in Johannesburg‚ made this finding when he declared that the gratuitous display of the flag‚ which was used in SA from 1928 to April 27 1994‚ constituted hate speech.

However‚ Mojapelo said it could be used for artistic‚ academic and journalistic expression in the public interest.

LISTEN | SA torn over banning of Apartheid-era flag

In his judgment‚ Mojapelo said the display of the old flag was argued earlier this year when the Nelson Mandela Foundation brought an application to court.

The foundation brought the application after the display of the apartheid-era flag during the “Black Monday” marches organised by AfriForum in 2017.

Mojapelo said despite years of apartheid rule‚ the lives of various races in SA had never been compartmentalised. He said that was the impracticality apartheid sought to‚ but never achieved.

He said there was‚ therefore‚ hardly any space which was private to one race to the exclusion of the other‚ especially in modern-day SA.

“Thus‚ displaying the old flag in private spaces like homes and schools is equally unacceptably offensive and hurtful‚ as black people are invariably employed and exposed in other ways to such spaces‚” Mojapelo said.

He said the display in such spaces also constituted hate speech under the Equality Act‚ as it ostensibly demonstrated an intention to be harmful or incite harm‚ and propagated to others‚ including children‚ that apartheid and how it treated black people was acceptable.

Mojapelo said any display of the old flag that was beyond the protection of Section 12 of the act was discriminatory and demonstrated a clear intention to be hurtful‚ to be harmful and incite harm and promote and propagate hatred.

Section 12 of the act provides protection for the use of information or display in artistic creativity‚ academic and scientific inquiry‚ and journalism in the public interest.

Mojapelo said the application by the Nelson Mandela Foundation was not a banning order against the old flag.

The foundation‚ he said‚ sought an order that would declare that the display of the flag must be confined to genuine artistic‚ academic or journalistic expression in the public interest.

“Any display beyond that may be brought before the Equality Court for the displayer to prove that the display was defensible or to prevail on the court to make an appropriate remedy‚” the judge said.