The displaying of SA's apartheid-era flag has been ruled as constituting 'hate speech, discrimination and harassment'.

TimesLIVE reports that Gauteng Deputy Judge President Phineas Mojapelo yesterday ruled that gratuitous display of the apartheid-era flag demonstrated a total rejection of reconciliation and a clear intention to be hurtful and incite harm.

Mojapelo was presiding over the Equality Court matter brought by the Nelson Mandela Foundation and the SA Human Rights Commission in their application that the display of the 1928 flag be classified as hate speech.

The application was triggered by the display of the old flag at marches organised by AfriForum to protest against farm murders.

Mojapelo held that reference to 'words' in section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act) must be given a generous and wide meaning.

'When regard is had to the interpretation of the Act, "words" in the section must be interpreted to include ideas, symbols and non-verbal meanings, including the waving of a flag.'

Mojapelo said the main purpose of section 10 was prohibition of all hate speech, which could be communicated by forms of expression other than words. If hate speech was only restricted to words, Mojapelo said it would mean victims of hate would not have recourse if the aggressor used non-verbal means.

Mojapelo also said speech was not limited to words, but extended to conduct and gestures, adding that displaying the old flag gratuitously caused more than emotional stress to black people.

He said those who displayed the old flag sought to remind black people of the oppression they had moved away from.

The use of the old flag should be allowed for academic and other uses, if there was justification for it, Mojapelo said. The application was opposed by AfriForum.

Full TimesLIVE report

Judgment