SCA grants AfriForum leave to appeal old flag hate speech ruling

Afriforum's Ernst Roets. Picture: Tracy Lee Stark.

‘In terms of the provisions of the Constitution, the fact that the old flag is offensive to some people is not sufficient reason to declare it hate speech,’ Ernst Roets said.

AfriForum says it has obtained leave to appeal Deputy Judge President Phineas Mojapelo’s ruling that the gratuitous display of the apartheid-era flag amounts to hate speech in the Supreme Court of Appeal (SCA).

It approached the SCA in Bloemfontein after the Equality Court, sitting in the Gauteng High Court in Johannesburg, denied it leave to appeal last year.

The Nelson Mandela Foundation and the SA Human Rights Commission had taken the case to court, asking that the gratuitous display of the flag be stopped.

Handing down judgment in August last year, Mojapelo said the display of the old flag gratuitously demeaned and dehumanised based on race.

He added the display also impaired dignity.

Mojapelo said AfriForum’s defence of freedom of speech was illogical and therefore dismissed.

In seeking leave to appeal, the organisation argued there was a reasonable prospect of success a different court would come to a different decision based on several reasons, including the right to privacy.

AfriForum’s head of policy and action, Ernst Roets, in a statement on Friday, said the organisation obtaining the leave to appeal was a positive turn for freedom of speech.

“AfriForum is strongly in favour of freedom of speech, but also believes that true hate speech should be fought.

“In terms of the provisions of the Constitution, the fact that the old flag is offensive to some people is not sufficient reason to declare it hate speech.

“We are concerned that it will have far-reaching consequences for freedom of speech – one of the cornerstones of a democratic society – if displaying the 1928 flag is declared hate speech. We will therefore fight this in the highest courts,” Roets said.

The organisation added it was of the view that hate speech occurred when hatred is propagandised against a group of people based on their identity and when the hate speech is combined with the incitement of injuring the group, citing that a recent ruling by the SCA in the case of Qwelane v the South African Human Rights Commission confirmed its view.

AfriForum said among other views it would be arguing in the court were it believed banning the flag would have an opposite effect of what was intended, causing the flag to become more popular as a result of the suppression of freedom of speech.

When News24 reached out to the Nelson Mandela Foundation, its spokesperson, Luzuko Koti, said it had no comment because it was AfriForum who obtained the leave to appeal, which was part of the process and it would, therefore, wait for it to unfold.

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