The Equality Court heard the Nelson Mandela Foundation and the South African Human Rights Commission argue that the old flag is the most visible remaining symbol of apartheid and white supremacy, and its display was equivalent to hate speech, while Afriforum – while agreeing the flag should not be displayed – argued it should not be equated to hate speech.

“The submissions made will require consideration. Judgement is reserved,” said Deputy Judge President Phineas Mojapelo.

Lobby group Afriforum, who are the first respondents in the matter, is opposing the application. The Minister of Justice and Correctional Services is the second respondent and the Department of Correctional Services the third.

Judge Mojapelo noted that Afriforum “acknowledged that the display of the flag had the potential to cause distress. My take is that they should understand the emotion that those who support the sought order are going through”.

He said from the material presented to the court so far, it seemed there was an acknowledgement that displaying of the apartheid flag causes distress.

Counsel for Afriforum, Mark Oppenheimer, said an alternative way in which an act such as this could be implemented was to impose a penalty for the use of the flag.

Counsel for the second respondents, Ian Currie, said the declaration sought by the foundation was too wide. He said the argument was an abstraction from the actual act of flag waving and that it was a misunderstanding of different opinions.

“It’s insufficient to compel the court to declare that civil liability would likely occur,” said Currie. He said in his understanding the court had to deal with hate speech that had already occurred and not hate speech which might occur.

Currie said Afriforum was not advocating the hoisting of the flag, but for what might be lost to freedom of expression if it was outlawed.

“It appears that the flag waving is unpopular and marginal speech.”

On the declaratory order sought by the foundation, Currie said it was simply too wide.

“We need to interpret what display entails,” said Currie. He said if there was no concern for the display of the flag, there should be no concern for the intention for which the flag was displayed.

Judge Mojapelo reminded Currie that no one could take away from the political context in which the flag existed. “This is not in dispute,” he said. “It was hate speech, hurtful speech but the political market is able to deal with it.”

“It wounds people on the basis of opposing groups. At no point did the foundation say free speech is not important, but that there are limits to speech that dehumanises people, that dehumanises a group,” Judge Mojapelo said.

Counsel for the applicant, Tembeka Ngcukaitobi, said the assertion by Currie with regard to the legislature should be taken up with the legislature and not the foundation.

“We have not come here to ask Afriforum to not groom their children to be racists. They can groom their children to be racists. What we’ve come to do is to stop them from speech that demonises black people. We have come to assert black people’s dignity,” said Ngcukaitobi.

“What we are asking is an assertion that black people count,”

He said the old apartheid flag was the most visible symbol of apartheid. “They are unable to say what the purpose of displaying the flag is. However, Oppenheimer and Currie have come to show that what is missing is the articulation of law by Afriforum”.

Ngcukaitobi said it was important to regulate speech which would violate people’s dignity, and it was important to regulate acts which would promote hate speech.

“Hate speech is an expression of the most visible symbol of what it meant to be black under apartheid, what it meant to be white under apartheid.” He added that “this is a case of people who have resolved not to subject themselves to the laws of South Africa”.

Ngcukaitobi said the order they were seeking was a subject of much distortion, and that the foundation was not seeking a ban on the apartheid flag, but a declaratory order.

He said at issue was whether or not hate speech took place as a result of the displays of the flag. He said Afriforum did not stop anyone from displaying the flag but instead denied it was displayed.

Said Ngcukaitobi, “We are asking that the court makes the declaratory order in order to regulate the necessary behaviour,” that the facts for the declaratory order were clear, and there was no basis for the claim that the order was abstract.

“I cannot exercise my racism on my gardener. Everyone will know I must keep my racism to my children,” said Ngcukaitobi, referring to his assertion that it was wrong to display the apartheid flag even in private spaces such as one’s bathroom.

“We know every home has a domestic worker. We know every home has a gardener,” he said.

Oppenheimer said Afriforum was not seeking an order pertaining specifically to the Black Monday farm murder protests where the old flag was prominently displayed. He said there was no evidence that the person in the protests who was referred to as saying the flag made them feel safe, was an Afriforum member.

“It’s inflammatory to say Afriforum can groom their children as racists. We have stated a number of times that Afriforum wants no business in waving the flag.”

When asked whether he needed to reply to Oppenheimer’s assertion, Ngcukaitobi replied, “no my Lord, that does not need any response”.

Counsel for the South African Human Rights Commission, Wim Trengove SC, rebutted the suggestion that the Julius Malema Kill the Boer case was relevant to facts in the current case.

Judgement was reserved. DM