Nelson Mandela Foundation Trust and Another v Afriforum NPC and Others (EQ02/2018) [2019] ZAEQC 2; [2019] 4 All SA 237 (EqC); 2019 (10) BCLR 1245 (EqC) ; 2019 (6) SA 327 (GJ) (21 August 2019)

Nelson Mandela Foundation Trust and Another v Afriforum NPC and Others (EQ02/2018) [2019] ZAEQC 2; [2019] 4 All SA 237 (EqC); 2019 (10) BCLR 1245 (EqC) ; 2019 (6) SA 327 (GJ) (21 August 2019)

The court held that the dominant meaning of the Old South African flag is one of apartheid, white supremacy, and racial oppression. The gratuitous display of the Old Flag, outside genuine journalistic, academic, or artistic contexts, is deeply hurtful, harmful, and dehumanising to black South Africans and others who suffered under apartheid. Section 10 of the Equality Act must be interpreted broadly to include all forms of expression, including symbols, not just words, in line with constitutional values and international law. The display of the Old Flag constitutes hate speech, unfair discrimination, and harassment under the Equality Act. Such display is not protected by freedom of...

Citation
[2019] ZAEQC 2
Parties
Applicant: Nelson Mandela Foundation Trust; Applicant: The South African Human Rights Commission; Respondent: Afriforum NPC; Respondent: Minister of Justice and Correctional Services; Respondent: Department of Justice and Correctional Services; Applicant: Johannesburg Pride NPC; Respondent: Federasie Van Afrikaanse Kultuurvereniging NPC
Court
Equality Court
Jurisdiction
South Africa
Judgment Date
21 August 2019
Case Number
EQ 02/2018
Procedural Posture
Civil Application / Final Judgment
Outcome
Application granted. The gratuitous display of the Old South African flag constitutes hate speech, unfair discrimination, and harassment under the Equality Act.
Judges
Mojapelo DJP
Legal Topics
Promotion of Equality and Prevention of Unfair Discrimination Act, Hate Speech, Freedom of Expression, Unfair Discrimination, Harassment, Bill of Rights Limitation
Constitutional Law Administrative Law Civil Procedure Promotion of Equality and Prevention of Unfair Discrimination Act Hate Speech Freedom of Expression Unfair Discrimination Harassment +1 more

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Parties

Nelson Mandela Foundation Trust

Applicant

The South African Human Rights Commission

Applicant

Afriforum NPC

Respondent

Minister of Justice and Correctional Services

Respondent

Department of Justice and Correctional Services

Respondent

Johannesburg Pride NPC

Applicant

Federasie Van Afrikaanse Kultuurvereniging NPC

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Does the gratuitous display of the Old South African flag constitute hate speech under section 10 of the Equality Act?
  2. 2 Does such display amount to unfair discrimination and harassment under sections 7 and 11 of the Equality Act?
  3. 3 Is section 10 of the Equality Act unconstitutional for limiting hate speech to 'words' only?

Ratio Decidendi

The court held that the dominant meaning of the Old South African flag is one of apartheid, white supremacy, and racial oppression. The gratuitous display of the Old Flag, outside genuine journalistic, academic, or artistic contexts, is deeply hurtful, harmful, and dehumanising to black South Africans and others who suffered under apartheid. Section 10 of the Equality Act must be interpreted broadly to include all forms of expression, including symbols, not just words, in line with constitutional values and international law. The display of the Old Flag constitutes hate speech, unfair discrimination, and harassment under the Equality Act. Such display is not protected by freedom of...

Court Disposition

Application granted. The gratuitous display of the Old South African flag constitutes hate speech, unfair discrimination, and harassment under the Equality Act.

Orders

  • It is determined that the display of the Old South African flag at the 'Black Monday' demonstrations on 30 October 2017 constituted hate speech, unfair discrimination on the basis of race, and harassment under the Equality Act.
  • Any gratuitous display of the Old Flag, subject to the section 12 proviso, constitutes hate speech, unfair discrimination, and harassment under the Equality Act.