The legal conundrum surrounding the banning of displays of the old South African flag has escalated, drawing a range of figures and organisations into the fray. The matter is to be heard in Johannesburg Equality Court today when the Nelson Mandela Foundation (NMF) takes on AfriForum.

The Minister of Justice, the Human Rights Commission, Johannesburg Pride and the Federasie van Afrikaanse Kultuurvereniginge have all joined the debate, arguing over the possibility of a ban, the nature of the constitutionality of such bans, the right to freedom of speech, a push for a change in legislation and whether the Equality Court has the power to make such a decision.

A Sunday Times report says the case has been brewing since late 2017, when reports emerged that the 1928 flag was being displayed at a Black Monday protest over murders of farmers, organised by AfriForum.

A dispute arose between the NMF and AfriForum over whether such displays ought to be constitutionally protected.

NMF CEO Sello Hatang, in his initial complaint to the court, detailed how hearing the reports of the old flag being proudly displayed brought up painful personal memories of his own lived experience of racism as a child. He insisted any gratuitous display of the flag constituted hate speech and harassment under the Promotion of Equality and Prevention of Unfair Discrimination Act.

AfriForum’s Ernst Roets responded that such a far-reaching ban would be a ‘constitutional infringement of the right to freedom of expression’. He also argued that the banning of such flags could lead down the slippery slope of censorship.

Full Sunday Times report (subscription needed)