The Department of Justice says the law will need to be changed if public displays of the old SA flag, which it says is widely recognised as a symbol that promotes white racial supremacy, are to be classified as hate speech. According to a Times Select report, specialist state law adviser Theresa Molomoitime Ross – on behalf of the Justice Department – filed an affidavit last week in response to the Nelson Mandela Foundation’s Equality Court bid to ban ‘gratuitous’ public displays of the flag on the basis that such displays amount to hate speech.

The foundation launched legal action following at least two verified displays of the old flag at ‘Black Monday’ demonstrations against farm murders in October 2017. It says the flag ‘belongs in museums, documentaries and cathartic creative works’, and not on public display, where it can cause deep hurt and harm to black South Africans who were oppressed under apartheid.

The application is opposed by AfriForum, which argues that while it does not support public displays of the old flag, banning such displays would be a ‘setback for freedom of speech and our democracy’.

According to Ross, it is the position of the Justice Department that ‘there is no place in the democratic SA society for the display and waving of the old flag in our communities’. But, she says, the Promotion of Equality and Prevention of Unfair Discrimination Act – which defines hate speech – is limited only to words that ‘demonstrate a clear intention to be hurtful, be harmful or to incite harm, promote or propagate hatred’.

She says the government supports the application to have this section of the Act declared unconstitutional and amended so that symbols like the flag can be defined as hate speech.

The report notes the case is due to be argued in April 2019.

Full Times Select report