Apartheid flag ruling is not a victory yet – Nelson Mandela Foundation

The Nelson Mandela Foundation said the ruling that gratuitous displays of the apartheid-era flag constituted hate speech was not a victory until South Africans could unite and work together.

Speaking outside the Gauteng High Court in Johannesburg following a scathing judgment on Wednesday, foundation CEO Sello Hatang said, until such a time when everyone in the country could unite and achieve diversity and unity, the victory was not complete.

He said Judge Phineas Mojapelo’s judgment was dedicated to struggle icon Ahmed Kathrada, who would have turned 90 on August 21.

Hatang said the organisation welcomed the judgment and hoped to work with all parties who were involved in the court process to build a united South Africa that does not discriminate.

“We are hoping to join hands with AfriForum, FAK and other parties… to say our woundedness should not wound the future. We should not be poisoning the future through the gratuitous display of the old flag,” he said.

The foundation, along with the SA Human Rights Commission, had brought an application to the court, asking that the gratuitous display of the flag be stopped.

While handing down his ruling, Mojapelo outlined that the judgment was not banning the use of the flag, but was to ensure that a united South Africa was built, and that the flag was not displayed without good reasons as it was hurtful to black people who had suffered the injustices of apartheid.

Mojapelo added that, while the display of the flag was not being banned entirely, it should only be done for journalistic, artistic, and academic purposes.

Hatang said the foundation would be reaching out to AfriForum for further discussions and debates on how a united South Africa could be built.

“We have no other home but this home, and we might as well make it work for all of us; and [the new flag] is the only flag that we recognise, and we should all be proud of it instead of using flags that are about pain,” he said.

Meanwhile, AfriForum’s Ernst Roets said, while the organisation was yet to study the judgment in its entirety, they were of the view that it would not directly affect their actions because they had argued from the beginning that the organisation did not display the flag, and actively discouraged those who did.

AfriForum had argued that, although it condemned the use of the old flag, it should not be declared hate speech. The lobby group had used freedom of speech as the basis of its argument.

Mojapelo, however, dismissed the argument as illogical.

“Our concern is that we have not found sufficient examples yet of government or the state dealing with social issues, albeit, important social issues through the use of the force of the rule of law.

“Our concern is that dealing with social issues like this, by banning certain things, at least to a certain extent, or preventing people by law from expressing themselves, do not change their opinions,” Roets said.

Roets added that the organisation believed that the problem the Nelson Mandela Foundation sought to resolve would not be solved by “preventing people from expressing their views if they still hold certain views”.

He said that displaying a symbol, even if it was offensive, was not sufficient to be deemed hate speech. He added it would need to be coupled with a call to action for it to be seen as hate speech.

“We always have and will always be open to discussion, and we will gladly take up the Nelson Mandela Foundation to engage in further discussion. If the judgment is that displaying a symbol is hate speech because of the fact that it is very offensive, that is something we take issue with.

“Our preliminary reaction is that we do not agree with the judgment, and that it will not solve issues the Nelson Mandela Foundation is trying to fix.”

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