South African court rules displaying apartheid-era national flag can amount to hate speech

South Africa's Equality Court has restricted the display of the country's old apartheid-era flag, ruling that its gratuitous use amounts to hate speech and racial discrimination.

Judge Phineas Mojapelo said the ruling was not a complete ban, saying use of the flag is protected by law for artistic, academic, journalistic or other purposes deemed in the public interest.

"Those who display the old flag choose deliberately to not only display the old flag, but also consciously and deliberately choose to not display the new, multiracial flag," said Mojapelo. "They choose oppression over liberation."

He said those who publicly display the flag should not be arrested, but should face deterrents such as fines or terms of community service.

The orange, white and blue flag of South Africa's previous white-minority regime, which enforced the system of racial discrimination known as apartheid, was replaced by a new flag when the country achieved majority-rule democracy in 1994.

The flag actually predates the formal promulgation of apartheid laws in 1948 by the then-ruling National Party, having been adopted in 1928.

Some conservatives and right-wing groups have continued to display the apartheid-era flag, notably at political gatherings or sometimes during rugby matches.

The case relates to a 2017 demonstration against attacks and killings of farmers where the so-called Apartheid Flag was displayed. The protest was led by predominantly white, Afrikaner nationalist groups.

Mandela Foundation initiated case

After public anger at the display of the flag, the Nelson Mandela Foundation applied for an order declaring "gratuitous display" of the flag as hate speech, unfair discrimination and harassment based on race.

Mandela, South Africa's first black president after decades of white-minority rulewho died in 2013, is credited with spearheading the country's peaceful transition to full rights for all citizens.

South Africa's human rights commission joined the application, arguing that those waving the old flag felt nostalgia for the apartheid days.

The move to ban the old flag was opposed by Afriforum, a group representing the South Africa's white Afrikaner minority, which argued that the ban would infringe freedom of speech and expression.

The court ruled in favour of the Mandela Foundation, declaring that "gratuitous display of the old flag amounts to hate speech."

The judge criticized those who continued to wave the apartheid-era flag.

The ruling was hailed as a "national victory," by Dakota Legoete, the spokesperson for South Africa's ruling party, the African National Congress. He said the ruling as similar to the banning of the Nazi swastika in Germany.

The Nelson Mandela Foundation reacted cautiously to the ruling.

"The judge was clear that we have to work together with others, including Afriforum, to do what the constitution says we must do," said Mandela Foundation CEO Sello Hatang. "We must be a nation that celebrates our diversity instead of fighting over our differences."

Afriforum's Ernst Roets said his organization is not convinced that displaying the flag amounts to hate speech.

"As Afriforum we do not display the flag and we actively discourage people from displaying the flag," said Roets. "We cherish freedom of expression and for us displaying the flag is not sufficient ground for hate speech. For it to be hate speech, it must be coupled with a call to action to inflict harm."