NEWS & ANALYSIS

Equality Court’s ruling over old SA flag being appealed – AfriForum

The that some people find the flag offensive is not sufficient reason for it to be declared as hate speech

AfriForum appeals Equality Court’s ruling over old South African flag

3 December 2019

During a media conference in Centurion today, AfriForum gave reasons why the civil rights organisation is appealing the ruling by the Equality Court that the display of the 1928 flag (the old South African flag) is hate speech. The different parties’ court documents were also introduced during the conference.

Kallie Kriel, Chief Executive AfriForum, says that AfriForum strongly supports freedom of speech, but at the same time believes that genuine hate speech should be opposed. According to the provisions of the South African Constitution, the fact that some people find the old flag offensive is not sufficient reason for it to be declared as hate speech.

“AfriForum’s view has always been that hate speech takes place when hate against a group of people is propagated based on their identity (for instance their race, ethnicity, gender orientation or religion) and when the statement in this regard is combined with an incitement to cause the group harm. The recent ruling in the Supreme Court of Appeal in the case of Qwelane vs the South African Human Rights Commission, confirms this position. We believe this to be a correct interpretation of the Constitution’s provisions about hate speech.”

According to Ernst Roets, AfriForum’s Head of Policy and Action, the organisation believes that the Supreme Court of Appeal’s decision will strengthen AfriForum’s case without having a negative effect on other hate speech cases in which AfriForum is involved, as those cases are based on incitement and not simply on offensive statements.

AfriForum’s position on the display of the old South African flag and the question of whether it is hate speech, can be summarised as follows: 

1.    AfriForum acknowledges the fact that the display of the 1928 flag can offend a portion of the population, which is also the reason why AfriForum don’t display the flag. AfriForum is committed to promoting mutual recognition and respect between communities.

2.    The display of the flag can only be regarded as hate speech when it is combined with a message that targets people based on their race and ethnicity and also contains an incitement to cause harm to said group. In the absence of such a message, the offense caused by the flag is not sufficient to be declared as hate speech according to the Constitution’s provisions.

3.    AfriForum strongly supports freedom of speech while simultaneously believing that genuine hate speech should be opposed.

4.    AfriForum believes banning the flag will have the opposite effect of what is intended, causing the flag to become more popular as a result of the suppression of freedom of speech. Oppressing freedom of speech creates a counteraction. The public’s reaction on the Equality Court’s ruling has already confirmed this. 

5.    To regard AfriForum’s protection of freedom of speech in this case as an attempt to justify the violations of human rights during apartheid, is a deliberate distortion of AfriForum’s position.

AfriForum also welcomed the Constitutional Court’s decision to dismiss the Nelson Mandela Foundation’s (NMF) appeal over the flag tweet case. The court ruled it wouldn’t be in the interest of justice to hear the appeal. This follows after the NMF applied to the Constitutional Court for the case of alleged contempt of court by Ernst Roets to be taken on appeal. The South Gauteng High Court dismissed the foundation’s case against Roets earlier this year.

See sound bites, photos and documents attached.

Issued by Hesti Steenkamp, Media Relations Officer, AfriForum, 3 December 2019