Gauteng Deputy Judge President Phineas Mojapelo’s affirmation – in Nelson Mandela Foundation Trust and Another v AfriForum NPC and Others – that the display of the apartheid flag constitutes hate speech was a powerful ruling and one in a series of hate speech cases that our courts have recently grappled with.

Last month the SA National Editors’ Forum and a number of journalists argued in the Equality Court that the EFF’s targeting of them amounted to hate speech.

Jon Qwelane is bringing a constitutional challenge before the SCA to the hate speech provisions in the Equality Act in light of his column ‘Call me names – but gay is not okay’.

Most recently the Constitutional Court heard argument as to whether Cosatu’s Bongani Masuku had engaged in hate speech against Jews when he made threatening comments directed at ‘Zionists’.

In an analysis in the Sunday Times, Webber Wentzel’s Dario Milo and Lavanya Pillay argue that the ruling in the apartheid flag case ‘has made a significant contribution to our emerging hate speech jurisprudence’, adding that judgments in the other cases will provide further clarity.

‘Ultimately, the question in all these cases is the same: has the legal line been crossed between free speech and hate speech?’

The authors point to a ‘particularly poignant’ paragraph of Mojapelo’s judgment:

Those who display the old flag choose deliberately not only to display the apartheid discriminatory, divisive and oppressive flag; they also consciously and deliberately choose not to display the new democratic all-uniting non-racial flag. They choose an oppression symbol over a liberation symbol … They intend to incite and awaken feelings of white supremacy against black people … They wish to remind black people of the oppression, humiliation, indignity and dehumanisation that they moved away from and do not wish to relive or return to.’

Dismissing AfriForum’s claim that the ruling undermines other rights, the authors point out that our courts have never held that freedom of expression is absolute and trumps all others.

It is expressly limited by the constitutional rights to human dignity and equality. Hate speech cases require courts to balance these rights in the context of the facts of the case and with an appreciation of SA’s repressive and ugly history. The apartheid flag case clearly struck that balance correctly.’

Full analysis in the Sunday Times (subscription needed)

Nelson Mandela Foundation Trust and Another v AfriForum NPC and Others