Johannesburg - AfriForum has lost its appeal to the Supreme Court of Appeal (SCA) in the case of the Old South African flag. The court unanimously found that it is hate speech, unfair race discrimination and harassment, in terms of the Equality Act, and to publicly display the Old South African flag was a gratuitous act.
The case brought by the civil society organisation was on Friday dismissed by the SCA.
The ruling reads: “In terms of the Section 21 (2) of the Equality Act, it is declared that subject to the provision in section 12 of the Equality Act, any gratuitous public display of the old flag constitutes hate speech in terms of the section 10 (1) of the Equality Act, unfair discrimination on the basis of race in terms of section 7 of the Equality act, and harassment in terms of section 11 of the Equality act.”
The ruling is contained in the 33-page judgment, in which the SCA upheld the Equality Court’s 2019 ruling that declared any public display of the apartheid flag as hate speech, unfair discrimination and harassment in terms of the Equality Act.
This comes after the Equality Court had ruled in favour of the Nelson Mandela Foundation and the South African Human Rights Commission (SAHRC).
The applicants had approached the court following the infamous 2017 “Black Monday” protests against farm murders, in which the old apartheid flag was displayed.
In the past, AfriForum has argued that the display of the old apartheid flag was an attack to freedom of speech, which it was practising with the display of this flag. The movement subsequently launched the appeal before the SCA, arguing freedom of speech.
In 2019, the Equality Court in Johannesburg ruled that the display of the old South African flag, both in public and private spaces has been prohibited, saying the only exception to the rule is the display of the flag for artistic expression, academic expression or journalistic expression in the public interest.
The SCA argued the same points in its final judgment and the court found that the constitutional right to freedom of expression “does not extend to” advocacy of hatred based on race.
“Because the display of the old flag amounts to hate speech, it is not constitutionally protected speech,” the court ruled.