Old flag: AfriForum fights in Supreme Court of Appeal for freedom of speech

The civil rights organisation AfriForum yesterday obtained leave to appeal the ruling of the Southern Gauteng High Court – that displaying the 1928 flag (the old South African flag) amounts to hate speech – in the Supreme Court of Appeal in Bloemfontein.

According to Ernst Roets, Head of Policy and Action at AfriForum, this is a positive turn for freedom of speech. “AfriForum is strongly in favour of freedom of speech, but also believes that true hate speech should be fought. In terms of the provisions of the Constitution, the fact that the old flag is offensive to some people is not sufficient reason to declare it hate speech. We are concerned that it will have far-reaching consequences for freedom of speech – one of the cornerstones of a democratic society – if displaying the 1928 flag is declared hate speech. We will therefore fight this in the highest courts.”

AfriForum’s view has always been that hate speech occurs when hatred is propagandised against a group of people based on their identity (for example their race, ethnicity, gender or religion) and when this hate speech is combined with the incitement of injuring the group. The recent ruling by the Supreme Court of Appeal in the case of Qwelane v the South African Human Rights Commission confirms this view.

AfriForum’s view – which also comprises the points to be argued in court – on displaying the old South African flag and the question of whether it amounts to 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 do not 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.

Statement issued by Ernst Roets, Head: Policy and Action, AfriForum, 8 May 2020