Old S.A. Flag – Court Ruling
Media Watch – 22.08.2019
Old S.A. Flag – Court Ruling
The court judgement on the issue of the old South African flag has now officially been passed.
The old flag was adopted in 1928 after the union of South Africa in 1910 and reflected the flags of the Cape Colony, Transvaal, Orange Free State and Natal. From 1928 the flag was widely displayed.
On Wednesday the Gauteng High Court declared the “gratuitous display” of the flag as constituting hate speech in terms of Section 10(1) of the Equality Act, unfair discrimination in terms of Section 7, and harassment in terms of Section 11 of the act.
“Gratuitous” means “done without good reason; unjustified”.
Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000
“10. (1) Subject to the proviso in section 12. no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be (a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred.”
When can one display the flag?
This does not mean that the old flag has been completely banned. It may still be used for artistic, academic or scientific expression.
“12. No person may— (a) disseminate or broadcast any information: 15 (b) publish or display any advertisement or notice, that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person: provided that bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution, is not precluded by this section.”
Judge Mojapelo said the main purpose of section 10 was the prohibition of all hate speech, which could be communicated by forms of expression other than words.
If hate speech was only restricted to words, Mojapelo said it would mean victims of hate would not have recourse if the aggressor used non-verbal means. He also said: “Displaying [the apartheid flag] is destructive of our nascent non-racial democracy… it is an affront to the spirit and values of Botho/Ubuntu, which has become a mark of civilized interaction in post-apartheid South Africa.”
Brian Jones (SA7)
Brian’s Passionate Desk
Brian@BriansPD.World
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SOURCES:
What the apartheid flag judgment means, Sesona Ngqakamba, 2019-08-21 21:57, https://www.news24.com/SouthAfrica/News/what-the-apartheid-flag-judgment-means-20190821
WATCH | Mzansi on old SA flag ruling: ‘It doesn’t erase racial hatred’, Unathi Nkanjeni, 2019-08-22, 06:35, https://www.timeslive.co.za/news/south-africa/2019-08-22-mzansi-on-old-sa-flag-ruling-it-doesnt-erase-racial-hatred/
The Constitution of The Republic of South Africa, accessed 2019-08-22, http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf
Old SA flag symbolises ‘black oppression, rejection of reconciliation’, Ernest Mabuza, 2019-08-21, 12:34, https://www.timeslive.co.za/news/south-africa/2019-08-21-old-sa-flag-symbolises-black-oppression-rejection-of-reconciliation/
Republic of South Africa Government Gazette, https://www.gov.za/sites/default/files/gcis_document/201409/a4-001.pdf
Equality Court rules ‘gratuitous display’ of the old SA flag constitutes hate speech, Charles Cilliers, 2019-08-21, https://citizen.co.za/news/south-africa/courts/2169459/equality-court-rules-gratuitous-display-of-the-old-sa-flag-constitutes-hate-speech/