Equality Court has no authority to ban display of old apartheid flag, SCA told

The Equality Court’s judgment that declared the display of the apartheid-era flag hate speech should be overturned because the court lacked the power to make such an order, the Supreme Court of Appeal (SCA) has heard.

Lobby group AfriForum on Wednesday approached the appeal court in Bloemfontein to set aside the Equality Court’s 2019 ruling that declared the “gratuitous displays” of the flag, in public and private spaces, hate speech.

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Judge President Phineas Mojapelo ruled in favour of the Nelson Mandela Foundation (NMF) and the South African Human Rights Commission (SAHRC) in their application, asking for the display of the flag to be stopped.

This followed the Black Monday protests in 2017 against farm murders in which the old apartheid flag was displayed, angering most South Africans.

Legislative powers

Advocate Mark Oppenheimer, acting on behalf of AfriForum, argued that the Equality Court’s ruling was unlawful and infringed on the right to freedom of speech and privacy.

He said the court had no authority to declare the display of the flag hateful on the basis of race because there were no respondents in the matter.

“A court can only make declaratory [orders] about particular instances not prospectively and the case law shows the general approach is to condemn particular acts; not to make declaratory [orders] in the abstract,” Oppenheimer said.

Oppenheimer also argued there was currently no statute in South Africa that outlawed the display of flags or any other symbols that are considered repugnant or immoral to certain groups.

He said the Equality Court, therefore, strayed into parliament’s legislative powers.

SAHRC’s role

Oppenheimer argued that how the NMF handled the matter was wrong to seek a declaratory order from the Equality Court in Johannesburg.

He said the foundation should have instead identified the protesters who waved the old apartheid flag during the Black Monday demonstrations and then laid a complaint with the SAHRC.

Approaching the commission, Oppenheimer argued, would have afforded the protesters an opportunity to explain their actions and motivations, and the SAHRC would have determined whether their actions did indeed amount to hate speech or not.

“It’s not that everyone is powerless to deal with the problem. There could be legal recourse, but the legal recourse is very straightforward.

“When there is a particular incident, lay a complaint against the person who performs the incident [and] have a determination with all the facts to whether that amounts to hate speech.

“If it does, a declaratory can be made about that incident and that may very well serve as guidance for other people,” Oppenheimer said.

He said by following this approach, the SAHRC’s final determination would have served as deterrence to those propagating hate speech.

‘Illustrative purposes’

Earlier, Oppenheimer also argued courts cannot ban a flag or any other symbol “in the abstract” without knowing the context of the particular circumstances that informed an individual’s motivations.

“There is an enormous difference between using a word to undermine someone’s dignity and denigrate them versus using the word for illustrative purposes.”

Oppenheimer said just because the apartheid-era flag had a particular dominant meaning in the past, its display in contemporary South Africa, did not mean that it endorsed the old meaning.

“The point of that is to say that; the flag can bear a particular meaning but the context tells you whether it amounts to hate speech because we need to know is it an endorsement of those principles,” he said.

The NMF has asked the SCA for a cost order should AfriForum’s appeal bid fail.

Judgment in the matter was reserved.

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