A wide-reaching ban of the old apartheid flag would be an unconstitutional infringement on the right to freedom of expression, lobby group AfriForum says in court papers. The civil society group is opposing an application by the Nelson Mandela Foundation, which is seeking a declaratory order that any ‘gratuitous display’ of the old flag constitutes hate speech and harassment.

Advocate Ben Winks, who represents the foundation, reportedly told News24 that the hearing date has not yet been confirmed. The parties are expected to finalise the timetable by next week.

In its answering affidavit, AfriForum said it was committed to upholding the right to freedom of expression, while taking active steps to combat genuine hate speech. AfriForum stated in their papers that they acknowledge that the old flag has the capacity to cause offence and emotional distress.

‘As an organisation, we have no particular love for the flag or what it represents,’ it said, adding there may be circumstances where displaying the old flag amounted to advocacy of hatred. It argued, however, that it would not be so in all the cases that the Nelson Mandela Foundation seeks to prohibit. ‘By way of analogy, it may be thought that anyone who burned the new South African Flag was motivated by hatred towards black South Africans and a desire to reinstitute apartheid,’ it said.

‘Displaying the old flag is not speech, nor does it amount to a call for action, nor does it meet the threshold of incitement to cause harm.’

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