South African court restricts display of apartheid-era flag

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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 is not a complete ban, adding that use of the flag is protected by law for artistic, academic, journalistic or other purposes deemed in the public interest.

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.

Football fans with the new flag
Football fans with the new flag (Anthony Devlin/PA)

The Nelson Mandela Foundation, the custodian of former president Nelson Mandela’s archives and legacy, asked the court to rule that displays of the old flag constitute hate speech and discrimination based on race.

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

Nelson Mandela
Nelson Mandela (Fiona Hanson/PA)

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 criticised those who continued to wave the flag: “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. They choose oppression over liberation.”

The ruling was hailed as a “national victory”, by Dakota Legoete, spokesman for South Africa’s ruling party, the African National Congress.

He said the ruling was 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 chief executive Sello Hatang. “We must be a nation that celebrates our diversity instead of fighting over our differences.”

Afriforum’s Ernst Roets said his organisation 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 Mr 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.”

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