AfriForum has argued in the Supreme Court of Appeal in Bloemfontein that the Equality Court did not have the power to make a declaratory order on the displaying of the apartheid flag.
Advocate Mark Oppenheimer told the court that the order could only be made when all the parties involved were involved.
AfriForum is appealing an Equality Court order that the gratuitous display of the old apartheid flag constitutes hate speech and harassment.
The Nelson Mandela Foundation approached the court following the display of the flag during farm killings protests in 2017.
Adv Mark Oppenheimer argued that individuals who displayed the flag at the said Black Monday protests were never informed.
AfriForum has argued that the Equality Court’s order on the displaying of the old flag set off a series of unintended consequences for the future. It has told the court that the order was made without meeting the required threshold to declare the act as hate speech.
It contends that there should be facts about the act, before determining whether something amounts to hate speech.
The display of the flag during the Black Monday protests in 2017 was not planned, according to Adv Oppenheimer for the AfriForum, and the intention or reason for the act is unknown.
“What’s required in order to make the declaratory order is that there has been such an incident. the court, therefore, has no power to make declaratory orders about incidents that are yet to occur,” says Adv Oppenheimer.
Senior Counsel, Tembeka Ngcukaitobi argued that there was nothing controversial about the meaning of the apartheid flag when it was introduced in 1926. He told the court that its founders clearly stated that the flag is not just a cloth but a living thing and that there is nothing as powerful and unifying as a national flag.
He has claimed that displaying the old flag symbolizes a desire for apartheid to return. According to the Nelson Mandela Foundation, the old apartheid flag serves as a reminder of apartheid’s crimes.
“When white people organise a protest about farm murders, they don’t talk about the criminality of the farm murders. They talk about the return of the old flag. It’s a reminder of the world in which they were biased. That’s the true world we live in, not the fictional stories of black people hosting this flag as a symbol of their own domination, using a dominant meaning. The only person who displayed the flag after the judgment was Ernst Roets. He displayed the flag on Twitter. It’s the members of AfriForum who displayed the flag in total contempt of the judgment by Justice Mojapelo. So that is the world in which we live in,” explains Senior Counsel for the Nelson Mandela Foundation, Tembeka Ngcukaitobi.
Legal representative for the Minister of Justice, Advocate Shaista Kazee told the court that the Minister believed that the Equality Court had done its due diligence on the matter.
“The dominant meaning attributable to the apartheid flag, both domestically and internationally is a symbol to the majority of South Africans population immortalising a period in which colonial power acquired land from the indigenous population through violent conquest and imposed a system of racial segregation through apartheid and in order to subjugate and dehumanise the black population,” says Advocate Kazee.
Nelson Mandela Foundation CEO, Sello Hatang says the country should not be duped into believing the narrative that there is nothing wrong with brandishing apartheid symbols.
“There is no doubt in our minds at all that the flag as it was intended at the time when it was legislated in the 20s still has the same kind of impact on the people that see it and those that have gone through the journey under the flag. I think it is important if a nation is stitching itself together as we are now, we cannot allow for the likes of AfriForum to take us off course,” says Hatang.
The Human Rights Commission has also reiterated its support for the decision taken by the Equality Court. Judgment has been reserved.
VIDEO: Outcome of Afriforum appeal to legalise display of the apartheid flag: Makgala Masiteng