Old flag judgment welcomed - SAHRC

Commission calls on all South Africans to observe, respect and uphold the rule of law

SAHRC Welcomes Judgement of the Equality Court on Old Flag, Concerned by Ongoing Hate Speech Violations

21 August 2019

The South African Human Rights Commission (the SAHRC or Commission) welcomes the judgement of the High Court of South Africa (Gauteng Division, Johannesburg) in the matter between Nelson Mandela Foundation Trust, The SAHRC (as the first and the second Applicants, respectively), the Respondents and Amicus Curiae. Judgement was heard on Wednesday, the 21st August 2019.

The Applicants sought an order, amongst others, declaring that any display of the old South African flag that does not serve any genuine journalistic, academic or artistic purpose in the public interest constitutes as:

- Hate speech, under section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act);

- Unfair discrimination, under section 7 of the Equality Act and

- Harassment, under section 11 of the Equality Act.

In deciding the matter, Majapelo DJP stated that: “When a new democratic dispensation was forged in 1994, what South Africa needed was a new identity which broke away from her racial past in which unity had been identified and defined as unity between the Afrikaans and English speaking populations only. The current flag was accepted as the united choice of all sections of the nation, without exclusion, through their recognised political leaders.”

The Court therefore found that “any gratuitous display of the Old Flag, besides being racist and discriminatory, demonstrates a clear intention to be hurtful, to be harmful and incites harm; and it promotes and propagates hatred against black people in contravention of section 10 (1) of the Equality Act. Furthermore, displaying the Old Flag in the face of most South Africans knowing that they recoil from it also constitute harassment. Accordingly, the gratuitous display of the Old Flag constitutes prohibited hate speech, unfair discrimination and harassment.”

The Commission appreciates the Court’s considered findings and urges all within South Africa to observe this judgement in the fostering of social cohesion.

The Commission is therefore deeply disturbed by expressions, mostly via social media, in clear violation of this court judgement, which found the gratuitous display of the Old Flag as hate speech.

The SAHRC calls on all South Africans to observe, respect and uphold the rule of law. The Commission will therefore take all necessary steps to ensure the enforcement of this judgement, in preserving South Africa’s delicate social cohesion and the protection of the freedom, dignity and equality of all within South Africa.

Issued by Gushwell Brooks, Communications Co-ordinator, South African Human Rights Commission, 21 August 2019