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[2019] ZAEQC 2
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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)

Links to summary

REPUBLIC
OF SOUTH AFRICA
IN
THE EQUALITY COURT OF SOUTH AFRICA
SITTING
ALSO AS THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: EQ 02/2018
In
the matter between:
NELSON
MANDELA FOUNDATION TRUST
1
st
Applicant
THE
SOUTH AFRICAN HUMAN RIGHTS COMMISSION
2
nd
Applicant
and
AFRIFORUM
NPC
1
st
Respondent
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES
2
nd
Respondent
DEPARTMENT
OF JUSTICE AND
CORRECTIONAL
SERVICES
3
rd
Respondent
with
JOHANNESBURG
PRIDE NPC
1
st
Amicus Curiae
FEDERASIE
VAN AFRIKAANSE
KULTUURVERENIGING
NPC
2
nd
Amicus Curiae
Coram:
Mojapelo DJP
Heard: 29 and 30
April 2019
Decided: 21/22
August 2019
Constitutional
law and Equality legislation
–
Equality
:
– the display of the old national flag of South Africa
introduced from 31 May 1928 - Hate speech – Discrimination

– Harassment – What constitutes -
Section 10
of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000
– legal interpretive framework – “words”
given wide interpretation.
Constitution:
–
freedom of expression under section 16 (1) of the
Constitution – categories of constitutionally unprotected
expression in
section 16 (2) of the Constitution – include hate
speech (“advocacy for hatred”).
The
Nelson Mandela Foundation Trust (“the Mandela Foundation”),
first applicant, sought an order declaring that any
gratuitous
display of the Old Flag constitutes, as against black people:
a) hate speech,
under section 10 of the Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000 (Equality Act);
b) unfair
discrimination, under section 7 of the Equality Act; and
c) harassment,
under section 11 of the Equality Act.
The
second applicant, the South African Human Rights Commission
(“SAHRC”), supports the relief sought by the Mandela

Foundation and, in the alternative, seeks an order declaring that
section 10 of the Equality Act is “unconstitutional and
invalid
to the extent that it restricts the type of expression which may
constitute hate speech to ‘words’ only”.
Once
the SAHRC raised the constitutionality of section 10 of the Equality
Act, albeit in the alternative, the case required the
Court to sit
both as an Equality Court and as a High Court. The second and third
respondents, respectively the Minister of Justice
and Correctional
Services and the Department of Justice and Constitutional Services
(together “the Department”), support(s)
the relief sought
by the SAHRC and, in relation to the alternative relief also sets out
how it intends to correct the defect. The
first amicus curiae,
Johannesburg Pride, also supports Mandela Foundation.
The
first respondent, Afriforum, opposes this relief in its entirety, and
contends, among others, that section 10(1) of the Equality
Act
expressly regulates ‘words’ and as such does not apply to
other forms of expression like symbols, and that it accordingly
does
not regulate displays of the Old Flag. It asserts also that
displaying the Old Flag is constitutionally protected expression

under section 16(1) of the Constitution. The second amicus curiae,
Federasie Van Afrikaanse Kultuurvereniginge (“FAK”)

supports Afriforum.
Having
considered the history of the flag, the Court concluded that the Old
Flag or Apartheid Flag (as it is sometimes called) was
a vivid symbol
of white supremacy and black disenfranchisement and suppression.
Further, the dominant meaning attributable to the
Old Flag, both
domestically and internationally, is that it is for the majority of
the South African population a symbol that immortalises
the period of
a system of racial segregation, racial oppression through apartheid,
and of South Africa as an international pariah
state that dehumanised
the black population.
The
Court found that any gratuitous display of the Old Flag, besides
being racist and discriminatory, demonstrates a clear intention
to be
hurtful; to be harmful and incites harm; and to promote and propagate
hatred against black people in contravention of section
10(1) of the
Equality Act. Furthermore, displaying the Old Flag in the face of
most South Africans knowing that they recoil from
it as a crime
against humanity also constitute harassment.
Court
accordingly held that the gratuitous display of the Old Flag
constitutes prohibited hate speech, unfair discrimination and

harassment.
ORDER
(1) In terms of
section 21(1)
of the
Promotion of Equality and Prevention of Unfair
Discrimination Act 4
of 2000 (“the Equality Act”), it is
determined that the display of the old national flag of South Africa,
introduced
from 31 May 1928, and used throughout apartheid until
it was abolished on 27 April 1994 (“the Old Flag”), at
the
‘Black Monday’ demonstrations on 30 October 2017
constituted:
a.
hate speech, in terms of section 10(1) of the Equality Act;
b.
unfair discrimination on the basis of race, in terms of section 7 of
the Equality Act;
c.
harassment in terms of section 11 of the Equality Act.
(2) In terms of
section 21 (2) of the Equality Act, it is declared that subject to
the proviso in section 12 of the Equality Act,
any display of the Old
Flag constitutes:
a.
hate speech in terms of section 10(1) of the Equality Act;
b.
unfair discrimination on the basis of race, in terms of section 7 of
the Equality Act;
c.
harassment in terms of section 11 of the Equality Act.
JUDGMENT
MOJAPELO
DJP
Introduction
[1]
‘We,
the people of South Africa’, proclaimed the preamble to the
Constitution of the Republic of South Africa, 1993
[1]
,
the interim constitution. This was the first time that the people of
South Africa expressed their oneness as a nation. It is a
oneness
that we reiterated in the Constitution of the Republic of South
Africa, 1996
[2]
, that came into
operation on 08 May 1996, replacing the 1993 interim constitution,
following the historic, emotional and near magical
first democratic
elections of 27 April 1994. The Constitution and the first democratic
elections brought all of us together across
racial, ethnic, language,
cultural, gender and sexual orientation divides. The significance of
that day has etched itself in the
collective memory of the nation as
Freedom Day, which we celebrate each year.
[2]
Prior
thereto South Africans were divided amongst each other on mainly
racial basis from cradle to grave and were denied by the
apartheid
rule an opportunity of a common nationhood and oneness. The so-called
unity achieved under the Union of South Africa
in 1910 or through the
Republic of South Africa Constitution Act of 1961, was one based on
racism, as it united the white English
and Afrikaans speaking parts
of the population whilst excluding all the blacks,
[3]
including indigenous African population. The 1994 elections and the
subsequent 1996 Constitution remain unparalleled in unifying
all
South Africans and thus etching, for the first time, the emotional
and constitutional unity that we can be proud of. The new

Constitution defines us as one nation, united in our diversity.
[3] This case drags,
from our recent ugly past into our current non-racial democratic
dispensation, the old national flag of South
Africa introduced from
31 May 1928 and used throughout apartheid until it was abolished
on 27 April 1994 (“the Old Flag”),
and raises the
question whether its gratuitous display constitutes hate speech,
unfair discrimination or harassment against those
that it never
represented. The official status of the Old Flag as a symbol of the
country came to the end in April 1994, when South
Africa was
liberated.
[4]
The first applicant, the Nelson Mandela Foundation Trust (“the
Mandela Foundation”), seeks an order declaring that
any display
of the Old Flag that does not serve any genuine journalistic,
academic or artistic purpose in the public interest (i.e.
“gratuitous
display”) constitutes, as against black people:
4.1 hate speech,
under section 10 of the Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000 (Equality Act);
4.2 unfair
discrimination, under section 7 of the Equality Act; and
4.3
harassment,
under section 11 of the Equality Act.
[4]
[5]
The
first respondent, Afriforum NPC (“Afriforum”), opposes
this relief in its entirety, and contends  that “displaying

the Old Flag is constitutionally protected expression” under
section 16(1) of the Constitution.
[5]
It contends also that section 10(1) of the  Equality Act
expressly regulates ‘words’ and as such does not
apply to
other forms of expression like symbols, and that it accordingly does
not regulate displays of the Old Flag.
[6]
[6]
The dispute and the proceedings were initially between the Mandela
Foundation and Afriforum. All other parties joined later,
having been
granted leave to intervene or having been admitted as the
amici
curiae
.
[7]
The
second applicant, the South African Human Rights Commission
(“SAHRC”), supports the relief sought by the Mandela

Foundation and, in the alternative, seeks an order declaring that
section 10 of the Equality Act is “unconstitutional and
invalid
to the extent that it restricts the type of expression which may
constitute hate speech to ‘words’ only”.
[7]
Its main contention, which is similar to that of the Mandela
Foundation is that, correctly interpreted, the section encompasses

all forms of expression including flags.
[8]
The
second and third respondents, respectively the Minister of Justice
and Correctional Services and the Department of Justice and

Constitutional Services (together “the Department”),
“support(s) the relief sought by the SAHRC”,
[8]
and, in relation to the alternative relief, also sets out how it
intends to correct the defect.
[9]
[9]
The
first
amicus
curiae,
Johannesburg
Pride NPC (“Pride”), argues that “the gratuitous
display of the Old Flag amounts to hate speech,
discrimination and
harassment not only against black people but also against members of
the LGBT+ community”.
[10]
[10]
The
second
amicus
curiae,
Federasie
Van Afrikaanse Kultuurvereniginge (“FAK”), submits that
displays of the 1928 Flag should not be “banned”.
[11]
It, in effect, supports Afriforum.
Joint
High Court and Equality Court Hearing and Motion Court
[11]
Once
the SAHRC raised the constitutionality of section 10 of the Equality
Act, albeit in the alternative, the case required the
Court to sit
both as an Equality Court and as a High Court. This is despite the
mistake that the SAHRC made inadvertently by maintaining
the heading
in its Notice of Motion and Founding Affidavit as “Equality
Court,” whilst their papers were in all material
respects for
the High Court.
[12]
It is a
mistake for which the SAHRC formally apologised at the hearing, which
apology I accepted. The consolidated hearing, which
I allowed, was
both convenient and ideal in the circumstances.
[13]
[12]
The
parties agreed in the preliminary case management meetings that this
matter be determined by way of application proceedings
without any
oral evidence being led. This became a convenient way having regard
to the limited issues and the total absence of
any dispute of fact.
The agreements in the case management meeting were recorded in
minutes which, in material respects, form part
of these
proceedings.
[14]
Parties which
came into the matter after the relevant agreement confirmed that they
associate themselves with agreement for the
matter to proceed as
agreed. Affidavits were accordingly filed as if proceedings were
conducted in terms of the High Court Rules.
All parties in this
matter are legally represented by attorneys and counsel.
South
Africans united in their diversity and constitutional values
[13]
At the outset it is important to remind ourselves of the
constitutional values of democratic South Africa and how under the

Constitution, all South Africans stand united in their diversity.
In this regard it bears recalling parts of the preamble
and section 1
to the Constitution – the supreme law of the land and the
founding document of our nation. This is what binds
us together and
makes us South Africans and should guide us all the time:
“
Preamble
We the people of
South Africa,
Recognise the
injustices of our past;
Honour those who
suffered for justice and freedom in our land;
Respect those who
have worked to build and develop our country; and
Believe that
South Africa belongs to all who live in it, united in our diversity.
We therefore,
through our freely elected representatives, adopt this Constitution
as the supreme law of the Republic so as to –
Heal the
divisions of the past and establish a society based on democratic
values, social justice and fundamental human rights;
Lay the
foundations for a democratic and open society in which government is
based on the will of the people and every citizen is
equally
protected by the law;
Improve the
quality of life of all the citizens and free the potential of each
person; and
Build a united
and democratic South Africa able to stand its rightful place as a
sovereign state in the family of nations
.”
Section
1(a) – (c)
“
South
Africa is one sovereign, democratic state founded on the following
values:
a.
Human
dignity, the achievement of equality and the advancement of human
rights and freedoms.
b.
Non-racialism and non-sexism.
c.
Supremacy of the constitution and the rule of law.”
Factual
Matrix and More about Parties
[14]
The factual circumstances from which the issues in this case arise
are brief, undisputed and broadly common cause.
[15]
Having regard to the fact that the case revolves around the historic
and now contentious Old Flag, I set out briefly, together
with the
facts, more information about the parties and their respective roles
in society. This might be helpful to elucidate their
role in the
factual matrix and in these proceedings. I base this on the
information placed before the Court by each of the parties
and by
other parties and not denied by the party concerned.
[16]
The
Mandela Foundation was established in 1999 as a registered trust by
former President Nelson Rolihlahla Mandela, shortly after
his
retirement from public office. Its vision is "a society that
remembers its past, listens to all its voices, and pursues
social
justice". Its mission is "to contribute to the making of a
just society by promoting the legacy of Nelson Mandela,
providing an
integrated public information resource on his life and times, and
convening dialogue around critical social issues''.
[15]
[17]
Afriforum
is a non-profit company, which was registered in 2005. According to
its website,
[16]
it is a
non-governmental organisation whose vision is "that Afrikaners -
who have no other home - are able to lead a meaningful
and
sustainable existence, in peace with other communities, here on the
southernmost tip of Africa". Its stated mission is
as follows:
“Afriforum works to ensure that the basic prerequisites for the
existence of Afrikaners are met, by acting as
a credible Afrikaner
interest organisation and civil rights watchdog - as part of the
Solidarity Movement - outside the workplace
on national and local
level to handle the impact of the current political realities facing
Afrikaners, and to influence those realities,
while working
simultaneously to establish sustainable structures through which
Afrikaners are able to ensure their own future.”
[17]
According to this, Afroforum is essentially about Afrikaner
interests.  In its answering affidavit, it states that “as

a civil organisation it is committed to upholding freedom of
expression, while taking active steps to combat genuine hate
speech.”
[18]
[18]
The
SAHRC is a constitutional state institution established in terms of
Chapter 9 of the Constitution to support constitutional
democracy in
South Africa. Its mandate is contained in the Constitution itself as
follows:
[19]
“
The Human
Rights Commission must
(a)
promote respect for human rights and a culture of human rights;
(b)
promote the protection, development and attainment of human rights;
and
(c)
monitor and assess the observance of human rights in the Republic.”
[19]
The
Department (by which term we include the Minister) is responsible for
the administration and implementation of the Equality
Act. Its role
became implicated in the proceedings following the intervention of
SAHRC and the constitutional challenge to the
under-inclusivity of
section 10 of the Equality Act. As already stated, the Department
“support(s) the relief sought by the
SAHRC” and set(s)
out their responses to the applications of both the SAHRC and the
Mandela Foundation.
[20]
It
provided evidence on the history of the Old Flag and also supports
the relief sought by the Mandela Foundation.
[20]
Pride
is a registered non-profit company, a civil rights organisation which
aims to increase the visibility and awareness of the
LGBT+ community,
and since 1990 organises and executes the Johannesburg Pride Parade
and contributes towards greater awareness
and tolerance of sexual
diversity in South African society. It was implicated and admitted as
the
amicus
curiae
once the Gay Pride Rainbow Flag was mentioned by Afriforum as an
example of symbols for which a precedent might be set for their

suppression, if the application of the Mandela Foundation were to be
granted.
[21]
It also supports
the Mandela Foundation and adds by articulating concerns for the
LGTB+ community and how that community experiences
gratuitous
displays of the Old Flag.
[21]
FAK is
also a non-profit company. It was founded in 1929, co-incidentally a
year after the introduction of the Old Flag. It is thus
the oldest of
all the parties before this Court. It describes itself as “a
cultural organisation” established “with
the purpose of
promoting and advancing the Afrikaans language and culture as well as
Afrikaner history” by coordinating the
efforts of other
cultural organisations through a federal network. In brief “it
is the oldest Afrikaans cultural organisation
in South Africa”
- a federal structure for the advancement of Afrikaans and the
Afrikaner culture and history.
[22]
It too provided evidence on the history of the Old Flag and supports
the relief sought by Afriforum.
[22]
The common cause facts have their genesis in nationwide public
demonstrations that took place in South Africa on 30 October
2017
against farm murders and violent attacks against farmers. The
demonstrations were dubbed as “Black Monday”. The
details
set out hereunder appear from the Founding Affidavit of the Mandela
Foundation and are uncontested. During the protest
march and
demonstrations, at which Afriforum played a central role, certain
protestors displayed the Old Flag. The display of the
Old Flag gave
rise to a dispute between the Foundation and Afriforum concerning
contemporary displays of the previous official
flag of South Africa.
The demonstrations and the debate that ensued received nationwide
media coverage, generating further debates
that were carried forward
by members of the public, including via social media. They gave rise
to the complaint being lodged with
the Equality Court and the
subsequent conditional ‘counter-application’ for
constitutional invalidity in the High Court,
and the joint and
simultaneous hearing.
[23]
The Founding Affidavit of Mr Sello Hatang, the Chief Executive
Officer of the Mandela Foundation, describes in paragraphs 11
to 15
the events and how they affected him as follows:
"Black
Monday
11. On 30 October
2017, nationwide demonstrations were held to protest violent attacks
on farmers, using the title "Black Monday"
(as the
protesters were to wear black), as well as "Genoeg is Genoeg"
and "Stop die Moorde". AfriForum played
a leading role in
these demonstrations and announced as follows in a statement issued
the same day, a copy of which is attached,
marked "SH2":
Today's
gatherings are only the beginning of a campaign that will ripple
outward even further and will become a bigger campaign.
AfriForum
already at today's gathering announced campaigns and safety plans in
the fight against farm attacks and murders.
12. It was
widely reported that the Old Flag was displayed at some of the "Black
Monday'' demonstrations. Attached, marked
"SH3", are
examples of such reportage. Many social media users also published
eyewitness accounts and photographs of
displays of the Old Flag by
"Black Monday" demonstrators. One example is attached,
marked "SH4": a statement
published by Bongani Baloyi, the
Executive Mayor of Midvaal Municipality, on his official Twitter
account at 10:02 am on 30 October
2017, that he "witnessed the
open and proud embrace of symbols (Old SA Flag) and Die Stem by the
Farmers on the R59 in Redan".
How it affected
me
13. On that day,
I was giving a guided tour of Robben Island (as part of a visit
jointly hosted by the Foundation and the Ahmed
Kathrada Foundation).
While reckoning with the pain that Nelson Mandela and his fellow
political prisoners endured on the Island,
reports of the displays of
the Old Flag by "Black Monday' demonstrators were brought to my
attention. Two painful personal
memories immediately invaded my mind:
a. First, I
remembered that, when I was about ten years old, I was walking with
my brother in Stilfontein and two white boys said
to us "Wat
soek julle hier, kaffirs?" My brother signalled that we should
ignore them and keep walking, which we did,
but he later explained to
me that the word denoted hatred for black people, and was used to
humiliate black people. It is my first
vivid memory of being told
that I was not only "other ', but less than human, because of
the colour of my skin.
b. Second, I
remembered occasions, later in my childhood, during school holidays,
when I heard white children singing "Daar
kom a bobbejaan"
as my grandmother walked past them on her way to work. While school
holidays should be a joyful time in any
family and community , it
pained me to know that my grandmother hated school holidays, because
she would have to navigate her way
to work, as a domestic worker,
through groups of idle white children subjecting her to this kind of
abuse, and she was powerless
to do anything about her trauma and
anguish.
14. The reason
these memories came involuntarily to mind, upon hearing reports of
the Old Flag being displayed, is that the Old
Flag represents nothing
other than the inhumane system of racial segregation and subjugation
that governed South Africa before
27 April 1994 (which manifested in
various forms since the 1600s and became formally known as apartheid
from 1948). It was that
system, under that Old Flag, which licensed
those white children who still haunt my memories to dehumanise me, my
brother and my
grandmother in the way that they did.
15. To hear that
the Old Flag had been displayed gratuitously in 2017, more than a
generation after apartheid had been abolished,
reminded me that some
South Africans still see me and other black people as "other",
and would deny us the opportunity
just to be human. They have no
concern or compassion for the suffering that the majority of South
Africans endured during apartheid
and continue to bear as a result of
apartheid.”
[24]
It is common cause that the description of how the events were
experienced by, and affected, Mr Hatang reflects the reality
of the
feelings and experience of the black child
raised
in apartheid
South Africa. This is how black people would have
experienced the display. It is common cause also that the feelings
are real. The
feelings and evidence could have been that of any other
black person to whom apartheid rule and oppression represented a
painful
reality. No exaggeration. It was their common hope that 1994
would have put this behind for ever – and never to be brought

back again. The “never-again and never again” hope.
[25]
The
painful current harm that emerges from the statement is not denied
and must be accepted as a fact. The response of the first
respondent
is that the Old Flag “has a capacity to cause offence and
emotional distress”.
[23]
It would have been helpful to have a direct response of the first
respondent to those experiences, either by a denial or an acceptance

– that is, other than by a terse acknowledgement. There has
been no engagement with the emotional and historic facts articulated

here, especially under paragraphs 13 to 15 of the Founding Affidavit.
The facts were simply dealt with as an academic issue by
the first
respondent. Save to criticise one journalist for posting a non-Black
Monday related tweet of persons wearing the Old
Flag and burning the
New Flag, Afriforum does not deny that the Old Flag was displayed
during the protest march.
[24]
Furthermore, Afriforum, whilst acknowledging the truth of the
experience of Mr Hatang, simply states that South Africa has
moved on
and expresses a hope that when he next sees the Old Flag being waved,
Mr Hatang will feel differently – “he
could use the
opportunity to reflect on how far we have moved as a nation”.
[25]
I will return to this later when I deal with contextualised meaning
of the Old Flag. For now, suffice it to state that it still
does not
engage with the feelings and memories Mr Hatang testifies about,
which are all rooted in decades of being discriminated
against on the
basis of his colour.
[26]
The case essentially turns mainly on two things, namely, the Old Flag
and hate speech. These are therefore the two main topics
that this
judgment will discuss in order to answer the question whether the
display of the flag constitutes hate speech. If it
does, then the
final question will be whether such display is an expression that is
protected by the provision of the Constitution
which guarantees
freedom of expression. The main topics for discussion are therefore
the Old Flag, hate speech and finally freedom
of expression (having
regard to the targeted display of the flag and hate speech). Unfair
discrimination and harassment will also
be considered as these are
also alleged to be the impact of gratuitous display of the Old Flag
The
Old Flag
Importance
of history when assessing the right to dignity
[27]
The
Constitutional Court has time and again emphasised the importance of
historical context when considering human dignity,
[26]
especially the history of racialized inequality in South Africa –
the unique attribute of which was the denial of human dignity
to
black South Africans. One of the specific goals of the current
Constitution is to redress the legacy of race-based inequalities

which was characterised by the denial of dignity to black South
Africans.
[28]
In
2000, the Constitutional Court in
Dawood
noted the express purpose of the value of right to dignity as being
“to contradict” the past:
[27]
“
The value
of dignity in our Constitutional framework cannot…be doubted.
The Constitution asserts dignity to contradict our
past in which
human dignity for black South Africans was routinely and cruelly
denied. It asserts it too to inform the future,
to invest in our
democracy respect for the intrinsic worth of all human beings. Human
dignity therefore informs constitutional
adjudication and
interpretation at a range of levels.”
[29]
The
value of history as an interpretive tool was emphasized again,
recently (2018), in
Rahube
,
where the Constitutional Court stated:
[28]
“
The
historical context within which a particular provision operated, or
in response to which it was enacted, has been used as an

interpretative tool by this Court on a number of occasions. In
Brink
,
this Court recognised that the interpretation of section 8 of the
Interim Constitution – now the section 9 right to equality
–
involved a historical enquiry. This Court held:
‘
As
in other national constitutions, section 8 is the product of our own
particular history. Perhaps more than any of the other provisions
in
[the Bill of Rights], its interpretation must be based on the
specific language of section [9], as well as our own constitutional

context. Our history is of particular relevance to the concept of
equality. The policy of apartheid, in law and in fact, systematically

discriminated against black people in all aspects of social life…The
deep scars of this appalling programme are still visible
in our
society. It is in the light of that history and the enduring legacy
that it bequeathed that the equality clause needs to
be
interpreted.’”
[29]
[30]
Finally,
a lesson from our history, as underscored by the Constitutional Court
in
Garvas
[30]
is that “
ours
is a ‘never again’ Constitution: never again will we
allow the right of ordinary people to freedom in all its forms
to be
taken away.”
History
of the Old Flag
[31]
The Old Flag must be interpreted against its history and meaning in
order to ascertain its objective meaning(s) and thus to
assess the
effect of its display on the rights to dignity and equality. It is
necessary, first, to understand its origins and history.
[32]
In brief, the Old Flag was adopted in June 1927 by a parliament
consisting only of white people and was brought into operation
in
1928. It is therefore sometimes referred to as the 1928 Flag or the
Old Flag. It was abolished in 1994 by South Africa’s
first
democratic and non-racial parliament representing all the people of
the country. It had 66 years during which it was a symbol
of South
Africa which was run by, and represented the rights of, the minority
white South Africans to the exclusion of black South
Africans. It is
thus, not surprisingly, viewed differently even today by mostly white
people on the one hand and black people on
the other.  It was
replaced in 1994 by the new national Flag which represents a united
democratic non-racial South Africa.
[33]
FAK,
SAHRC and the Department placed evidence before court on the history
of the Old Flag.
[31]
Other
parties also referred to a different degree to the history. The
history of the Old Flag itself is uncontested. Each
party, however,
ultimately  sought to place their own interpretation on the
gratuitous display of the Old Flag in modern South
African context.
[34]
Some  detail on the history of the Old Flag is necessary for an
understanding of how it was conceived and where that flag
is today
and what it represents, on the one hand, to a section of the white
minority, represented in this case by the first respondent
and the
second amicus; and, on the other hand, to the majority comprising
mostly black people and others, represented in this case
by all other
parties.
[35]
The British flag, which is also known as the Union Jack, was the
official flag of the country prior to the adoption of the
Old Flag,
because the Union of South Africa was considered to be part of the
British Empire. The first call for the recognition
of a “national
flag” was made by the Cape conference of the Nationalist Party
in 1919. The demand was repeated in 1921
when the Free State branch
of the Nationalist Party held its Congress. The justification for the
new flag was that the Union Jack
represented only one section of the
population, the English. This was during the leadership of General
Jan Smuts.
[36]
For General Jan Smuts, leader of the South African Party and prime
minister of South Africa, the flag issue was a sensitive
one, which
he did not touch because for him, the unity between the English and
Dutch speaking white people was paramount. In 1924
the South African
Party of Smuts lost the general election to a coalition of the Labour
Party and the National Party. A new government,
referred to as the
“Pact Government” was formed. JBM Hertzog, the head of
the National Party, became prime minister.
The debate about a new
flag would now be resurrected.
[37]
In
1925, the Minister of Interior, DF Malan, was responsible for the
introduction of Afrikaans as the second national language,
replacing
Dutch. He was also instrumental in proposing a new flag through the
Union Nationality and Flag Bill. The Bill, however,
was withdrawn
before its second reading. Malan however pointed to the need for a
new flag that would be “accepted as the
united choice of all
sections of the nation through their recognised political
leaders.”
[32]
This was
with reference to only white people.
[38]
The
flag Bill was re-introduced in 1926. Malan motivated for it on the
grounds that the history of division between the Afrikaners
and the
English had to be forgotten and that “both sections” had
to forge unity for the future of South Africa. His
speech delivered
on 20 May 1926, quoted from Hansard during the hearing, is
significant for its clarity as to the intentions behind
the Bill. He
explained why a flag was important. It was not a mere cloth, but a
symbol of national existence: “a flag is
a living thing; it is
the repository of national sentiment”.
[33]
As to why it was being introduced, Malan was again explicit:
[34]
“
What we
therefore want in South Africa is a flag which breaks with the past,
and which looks only to the future. This is what the
new design will
be. It is not connected with the past, so that the two sections of
the people are united in a common nationhood,
a common national
feeling
…”
[39]
In his view the resolution of the flag question carried the potential
for the resolution of the racial reconciliation between
the
Afrikaners and the English. The proposed flag was not adopted,
however, on 26 May 1926. Instead, it was postponed, owing to
the
resistance from “both sections” of the population.
[40]
When
the Union Nationality and Flag Bill was re-introduced on 16 May 1927,
it still bore its distinctive features – fusion
of the
Afrikaner and English invented traditions – which, as Malan
explained, comprised two parts. The first was “a
legal
recognition by ourselves and for the legal information of other
nations, that we exist as a South African nation.”
[35]
Moreover:
“
The second
part, which is based on the first, has to do with the establishment
of an outward and visible symbol of our independent
nationhood, and
our national status. It has to do with the binding together of all
sections of the people in one common sentiment.
It provides, in other
words, for a South African national flag.”
[41]
By 1927 the English and Afrikaans speaking representatives in the
whites-only Parliament were able to “reconcile”
their
differences and agree on a new flag. The flag was adopted in June
1927 (and would enter into force in 1928). Its purpose
was twofold:
to serve as a distinctive marker for severing the ties with the
imperial power, Britain; it was also a nationalist
symbol of unity
between English and Afrikaans speakers.
[42]
Significantly,
the Africans and other people of colour were excluded from the
discussion and adoption of the flag. Their rights
to vote had been
curtailed since the Treaty of Vereeniging, and the exclusion was
entrenched in 1910 when the remaining elements
of native franchise
were subjected wholly to the whims of the whites-only Parliament. As
the debate was raging concerning the Flag
Bill, Hertzog’s
government was introducing other legislative steps designed to
consign blacks into the status of subservience.
Smuts’ warning
was not heeded:
[36]
“
We are to
hold a joint sitting of both houses over the Colour Bar Bill, the
Senate having once more rejected the bill. After that
the Asiatic
Segregation Bill will come on, as dangerous and unpleasant a measure
as has ever been before our parliament. Then Hertzog
will bring
forward his Native segregation bills. This will become a most unhappy
country with policies such as these.”
[43]
The Union Nationality and Flag Act of 1927 (“the Flag Act”)
was passed alongside the Immorality Act of 1927, which
outlawed
“illicit intercourse between Europeans and natives”; and
the Native Administration Act of 1927, which made
the
Governor-General “the supreme chief of all natives” and
gave him vast powers to appoint and depose chiefs, and
generally to
control how black people occupied and used land, moved, married,
inherited, and settled disputes. It was control from
cradle to grave.
He controlled even where they could and could not bury their dead.
These laws paved the way for the subsequent
notorious “Hertzog
Bills” of 1936: the Native Representation Bill - to further
limit native franchise; the Native Trust
and Land Bill - to intensify
the land ownership restrictions set by the Native Land Act of 1913;
and the Urban Areas Amendment
Bill - to limit native people to
residing in urban areas only as labourers for white people. These
Bills in due course became law.
Under these laws urban areas were
reserved for white people. Black people could only lawfully enter and
remain in the urban areas
as labourers for white masters. Black
people were labourers and white people were masters. Almost every
white person had their
own black person(s) as labourer(s). A
situation not very much different from slavery. Only a bit different
because a stipend was
payable by the white employer to the black
worker – but regulated mostly by the will of the master.
Conclusion
about history
[44]
Viewed in this context, the Flag Act was part of a scheme of statutes
that were intended to entrench, and in fact did entrench,
racialized
segregation and white supremacy.
[45]
The Old Flag or Apartheid Flag (as it is sometimes also called) was a
vivid symbol of white supremacy and black disenfranchisement
and
suppression. It combined four flags: the British Union Jack and the
flags of the Transvaal and Oranje Vrystaat republics founded
by Boer
settlers, on the background of the “Oranje Blanje Blou”
Dutch Prinsevlag. It gave expression to European heritage
and
heraldry, excluding black people entirely from the project of
“binding together of all sections of the people in one
common
sentiment”. Mr Ngcukaitobi, for the Mandela Foundation, argues
that it also excluded black people from any sense of
national
belonging in the land of their birth.
[46]
In 1948, after their election victory, the National Party tried
unsuccessfully to amend the flag design to remove what they
called
the "Blood Stain" (the flag of the United Kingdom). In 1968
Prime Minister John Vorster proposed the adoption
of a new flag in
1971 - the tenth anniversary of the declaration of South Africa as an
independent ‘republic’. However,
his idea did not gain
parliamentary support and the flag change never happened. As such
this flag was used during the entirety
of the apartheid era as well.
This is what led to it being labelled the "Apartheid flag".
[47]
The
Flag Act was superseded and repealed by the 1961 “Republic”
Constitution, which retained the Old Flag,
[37]
entrenched electoral exclusion of everybody other than “white
persons”,
[38]
and vested
the State President with absolute authority over “Bantu
affairs”, including “Bantu locations”.
[39]
[48]
The
Old Flag was retained in the 1983 “Tricameral”
Constitution,
[40]
which gave
limited electoral rights to “Coloured” and “Indian”
persons,
[41]
but excluded
African people from the definition of South Africa’s
“population groups” that were entitled to
“self-determination”.
[42]
The 1983 Constitution elevated the Old Flag making it a criminal
offence, punishable by five years’ imprisonment, to “hold

the National Flag of the Republic in contempt”.
[43]
It was only replaced by the current flag in 1994 with the
commencement of the republic's transitional constitution and the
end
of apartheid.
[49]
Following the end of its official status in 1994, the Old Flag has
been controversial within South Africa, with some people
viewing it
as historic and a proud symbol of Afrikaner-English unity and
heritage, while others view it as a symbol of oppressive
apartheid
and white supremacy.
[50]
It certainly still means one thing to some (those who did not suffer
and benefitted under the pre-democracy or apartheid rule)
and another
thing to others (the victims and those who, though not victimised,
were genuinely opposed to the apartheid rule). It
is unfortunately
still divisive.
[51]
When a new democratic dispensation was forged in 1994, what South
Africa needed was a new identity which broke away from her
racial
past in which unity had been identified and defined as unity between
the Afrikaans and the English speaking populations
only (that is, to
the exclusion of black people). South Africa needed a new
all-embracing unity that unites all her people, broke
with the past
and looked only to the future. The new Constitution and the new
national flag defined the new South Africanness explained
in the
first paragraph of this judgment. One that would never look back to
her past. The current flag was accepted as the united
choice of all
sections of the nation, without exclusion, through their recognised
political leaders.
[52]
As Mahomed J, who later became the first black Chief Justice of South
Africa, explained the stark contrast between the pre
and the post
1994 era:
“
The past
was rodent with statutes which assaulted the human dignity of persons
on the grounds of race and colour alone; section
10 constitutionally
protects that dignity. The past accepted, permitted, perpetuated and
institutionalized pervasive and manifestly
unfair discrimination
against women and persons of colour; the preamble, section 8 and the
postamble seek to articulate an ethos
which not only rejects its
rationale but unmistakenly recognizes the clear justification for the
reversal of the accumulated legacy
of such discrimination.  The
past permitted detention without trial; section 11(1) prohibits it.
The past permitted
degrading treatment of persons; section 11(2)
renders it unconstitutional. The past arbitrarily repressed the
freedoms of expression,
assembly, association and movement; sections
15, 16, 17 and 18 accord to these freedoms the status of "fundamental
rights".
The past limited the right to vote to a minority;
section 21 extends it to every citizen.  The past arbitrarily
denied to
citizens on the grounds of race and colour, the right to
hold and acquire property; section 26 expressly secures it.”
[44]
There
could not have been a better graphic representation of the legal
difference between the apartheid and democracy respectively.
[53]
South
Africa needed (and apparently may still need) to get to a place
proclaimed by the current Constitution, where we are not divided
but
“united in our diversity.” It is a unity worth striving
for at all costs, especially for those parts of the nation
(to the
left and to the right), who may not yet be there. That the current
South African flag does, while the Old Flag seems to
be doing the
very opposite. The contrast between the old and the new flags and the
continued division in the interpretation of
the Old Flag is at the
base of this application. FAK, which argues for a different outcome,
does recognise and acknowledge the
truth of the inclusivity of the
current flag in contrast to the old: “The meaning and symbolism
contained in the new flag
is truly remarkable, … this time the
flag was fully representative of all the people of South Africa.”
[45]
[54]
It is against the backdrop of this history and the current divergent
interpretations of the Old Flag, that its meaning(s) must
be
assessed.
Meaning
of the Old Flag
[55]
It is necessary to consider fully what meaning is attributable to the
Old Flag (when it is displayed gratuitously).
[56]
In
affording a meaning to ‘gratuitous’,  the Mandela
Foundation describes this as “any display that does
not serve
any genuine journalistic, academic or artistic purpose in the public
interest”.
[46]
This is
an interpretation that accords with section 12 of the Equality
Act, discussed below, and which sets out circumstances
that justify
the display of an image or expression which would otherwise be
prohibited. However, for purposes of this judgment,
the focus is only
on the meaning of the Old Flag in South Africa today.
[57]
In
trademarks law, it is accepted that the dominant feature of a mark is
determined through “
the
comparison [is] to be made between the main idea or impression left
on the mind by each of the marks, having regard to any essential
or
salient or leading or striking feature or features in each
.”
[47]
Similarly, the ascertainment of an objective meaning or meanings to
expression will entail an inquiry into whether a dominant meaning

exists or through an evaluation of “the main idea or impression
left on the mind” as a recipient viewer of the expression.
[58]
In
AfriForum v Malema
, the Equality Court had regard to the
defamation law to ascertain the meaning of words and applied the
following test:
“
the test
[is] whether the reasonable person of ordinary intelligence is taken
to understand the words alleged to be defamatory in
their natural and
ordinary meaning. In determining whether this is the position the
Court must take account not only of what the
words expressly say, but
also what they imply. The context within which the words have been
used cannot be ignored. See: Argus
Printing and Publishing Co Ltd v
Esselen’s Estate
[1993] ZASCA 205
;
1994 (2) SA 1
(A) at 20E –
21B
.”
Per: Kgomo J in
Selemela
and Others v Independent Newspaper Group Ltd and Others
2001 (4) SA 1001.”
[48]
[59]
Taken together, and applied in the context of an image and not words,
the approach acknowledges the possibility of:
1 Two or more
meanings to a particular expression; and
2 Seeks to arrive at
a dominant or series of dominant meanings.
[60]
The approach also gives due regard to what the words or image
implies, and the context in which the words or image are used.
[61]
What then does such a display (gratuitous) of the Old Flag mean?
[62]
The
applicable test to ascertaining the meaning of an expression
(including an image) is objective and accepts that a particular

expression may have more than one objective meaning.
[49]
Meaning
to the Parties
[63]
Each of the parties set out what meaning they each attach to the Old
Flag. That, I suggest, is a helpful starting point for
the current
purpose.
[64]
The
Mandela Foundation testified that:
[50]
“…
the
Old Flag represents nothing other than the inhumane system of racial
segregation and subjugation that governed South Africa
before 27
April 1994 (which manifested in various forms since the 1600s and
became formally known as apartheid from 1948).”
[65]
Further,
the Foundation states: “apartheid was a crime against humanity.
Displaying the flag of apartheid South Africa represents
support for
that crime”,
[51]
and “a
total rejection of tolerance, reconciliation and all the values
underlying the Constitution”.
[52]
[66]
Pride
similarly, “associate(s) the Old Flag with autocracy,
oppression and denial of human rights, injustice, inequality and

hate.”
[53]
[67]
The SAHRC testified that the Old Flag:
1
“constitutes
a symbol of the racist and oppressive regime that governed South
Africa prior to democracy and the dehumanising
ideologies espoused
during that regime, specifically that of the racial superiority of
white South Africans and, inter alia, the
corresponding inferiority
of black South Africans”;
[54]
and
2
“has
also been adopted and used by white supremacists around the world as
a symbol of hatred, oppression and racial superiority.”
[55]
[68]
The Department (the State respondents), meanwhile, described the Old
Flag as:
1
“a
particularly invidious image used during apartheid as the national
symbol of a country that created, promoted and brutally
enforced a
political system that, at its core, was aimed at discrimination and
oppression”;
[56]
2
“the
international symbol of apartheid”;
[57]
3
“an
image [that] is widely, if not universally recognised, as one that
promotes white racial supremacy”;
[58]
and
4
“akin
and comparable to other international symbols of political oppression
that comprise crimes against humanity as defined
in the Rome Statute
[of the International Criminal Court], for example the [Nazi]
swastika as a symbol of ethnic genocide.”
[59]
5 The Department
states further, about the Old Flag that:
a.
“Its
design encapsulates South Africa's history of colonialism, with
references to the official flags of the Netherlands and
United
Kingdom, both of which colonised South Africa.”
[60]
b.
“(it)
constitutes a symbol of the racist and oppressive regime that
governed South Africa prior to democracy and the dehumanising

ideologies espoused during that regime, specifically that of the
racial superiority of white South Africans and, inter alia, the

corresponding inferiority of black South Africans.”
[61]
c.
“Moreover,
the memory of apartheid is represented by the Old Flag. The use of
such a symbol, otherwise than in accordance
with the proviso in terms
of section 12 of [the Equality Act] …, recalls the inhuman
sufferings, the oppressive ideologies
and the lack of dignity,
freedom and equality afforded to the majority of the country's people
under the apartheid regime.”
[62]
[69]
Afriforum
does not dispute any of these meanings, and itself testified that:
“During Apartheid the Old Flag was held aloft
as a symbol of
the past regime’s power. At the time it was seen as a constant
reminder of an oppressive and racist system.”
[63]
As to how it is currently received Afriforum concedes further and
states: “Most South Africans recoil from the old flag and

openly denounce Apartheid as a crime against humanity.”
[64]
[70]
Only
FAK begs to differ. It states:
[65]
“
This is, with
respect, a stereotyped view of the flag which has a far more complex
history than this, and is capable of being viewed
in ways other than
being a flag that celebrates or promotes apartheid or ideas premised
on racial superiority and inferiority,
and that could only be
displayed in a manner that is intended to be hateful or offensive.”
Even
in this very statement, FAK seems to concede a meaning attributed by
others and asserts only that the Old Flag has other meanings
as well.
It “is
capable
of being viewed in ways other than
being a flag that celebrates or promotes apartheid.”
[71]
FAK
testified that the  Old Flag can also be seen as “a symbol
of reconciliation and unity between the English- and
Afrikaans-speaking population”,
[66]
and an “example of how two warring nations (the Boers and the
British) found a way to reconcile”.
[67]
FAK thus claims that the Old Flag could be displayed “for
reasons that are based on an appreciation of its culturally historic

value.”
[68]
[72]
FAK
acknowledges that the Old Flag was not “fully representative of
all the people of South Africa,”
[69]
but does not concede and thus fails to appreciate that this lack of
full representation or non-inclusivity of black people is rooted
in
racism. FAK does not acknowledge that “the Boers and the
British found a way to reconcile” only through the
disenfranchisement,
dispossession and denigration of black people, to
the exclusive benefit of themselves as white people. It is difficult
to see why
FAK cannot see or acknowledge the obvious: a
reconciliation between white Boers and white British and which
excludes black people
is simply racist. More so when there is no
other justification. Froneman J and Cameron J describe these failures
in
Tshwane
v Afriforum
as follows:
[70]
“
To deny
these realities or avert one’s eyes to them lays one open to a
charge that what one seeks to protect is not culture,
but a heritage
rooted in racism. The Constitution protects culture, yes, but not
racism.”
[73]
Even
if the Boer-British reconciliation (symbolised by the Old Flag) was
capable of “appreciation” for its “culturally

historic value”, this appreciation would not qualify for
recognition under the current Constitution. As Jafta J held, also
in
Tshwane
v Afriforum
:
[71]
“
There can
be no justification for recognition of cultural traditions or
interests ‘based on a sense of belonging to the place
where one
lives if those interests are rooted in the shameful racist past…
Any claim to the
enjoyment of culture may not include an entitlement to racist and
oppressive cultural traditions of the colonial
and apartheid era.
Recognition of racist traditions is inconsistent with our
constitutional order which seeks to establish ‘a
society in
which all human beings will be accorded equal dignity and respect
regardless of their membership of particular groups.’”
Dominant
meaning
[74]
Even
if it were possible to construe a gratuitous display of the Old Flag
as benign “appreciation” of its “culturally

historic value” (which is not necessarily the case), that
meaning cannot be its current dominant meaning. As Mogoeng CJ held
in
Tshwane
v Afriforum
:
[72]
“
White
South Africans must enjoy a sense of belonging. But unlike before,
that cannot and should never again be allowed to override
all other
people’s interests. South Africa no longer ‘belongs’
to white people only. It belongs to all of us
who live in it, united
in our diversity. Any indirect or even inadvertent display of an
attitude of racial intolerance, racial
marginalisation and
insensitivity, by white or black people, must be resoundingly
rejected by all South Africans in line with the
Preamble and our
values, if our constitutional aspirations are to be realised.”
[75]
To the
majority of South Africans, and undoubtedly, to the majority of black
South Africans, a gratuitous display of the Old Flag
has, as its
dominant meaning, an endorsement of the system of apartheid.
Afriforum in fact concedes that “most South Africans
recoil
from the Old Flag and openly denounce apartheid as a crime against
humanity.”
[73]
[76]
Describing the strong constitutional rejection of the ugly pre 1994,
Mahomed J (as he was then) held that the Constitution:
“
retains
from the past only what is defensible and decisive break from, and a
ringing rejection of, that part of the past which is
disgracefully
racist, authoritarian, insular, and repressive and a vigorous
identification of and commitment to a democratic, universalistic,

caring and aspirationally egalitarian ethos, expressly articulated in
the Constitution. The contrast between the past which it
repudiates
and the future to which it seeks to commit the nation is stark and
dramatic.”
[74]
[77]
The Old Flag is a symbol of “
that part of the past which is
disgracefully racist, authoritarian, insular, and repressive”.
The dominant meaning of displaying the Old Flag (outside the context
of genuine journalistic, artistic or academic endeavour) is
an
endorsement of precisely “that part of the past”.
[78]
The meaning or meanings of the Old Flag falls to be determined in
favour of one overriding, dominant meaning and in context
it is this:
that the gratuitous display of the Old Flag visually communicates a
message of the belief in or support of racism,
white supremacy and
the subjugation of the black population. In short, the Old Flag is,
according to the dominant meaning, representative
of apartheid, which
has been declared a crime against humanity.
Non-Dominant
Meaning
[79]
The
FAK holds a singularly different view to that of the other parties to
the application.
[75]
It
advances the contention that the image is capable of an alternative
meaning and that meaning is that it is “a symbol of

reconciliation and unity between the English- and Afrikaans-speaking
population”.
[76]
FAK
does not suggest that the image is capable of being viewed with any
perception of reconciliation or unity with the majority
black. Even
on their version, the Old Flag is therefore discriminatory; and based
on a minority perception, it is therefore inherently
exclusionary of
the black majority population who are not recognised or acknowledged
in the image.
[80]
The FAK’s alternative meaning is fundamentally flawed. It is
also not advanced as the dominant interpretation of the
image. As
such, on an application of the applicable legal principles, the
proposed interpretation does not meet the legal threshold.
It falls
short even of the Afriforum admission that the Old Flag is offensive
in the context of a post 1994 democratic society.
In short, the image
represented the unity and reconciliation of the two groups that
proceeded to brutally oppress the African majority
through apartheid.
The non-dominant meaning is stark in history at 1928 and has no place
in the current democratic inclusive society.
International
perspective
[81]
The Old Flag operated as the national flag of apartheid South Africa,
and therefore an image that represented the country internationally.

This requires consideration of the international dominant meaning of
the Old Flag.
[82]
In the
Minister’s affidavit,
[77]
it is recognised that apartheid was declared a crime against humanity
by the United Nations in the Convention on the Suppression
and
Punishment of the Crime of Apartheid (General Assembly Resolution
3068, 1976 and the 2002 Rome Statute). This action was a
culmination
of prior steps of condemnation against the policy of apartheid
adopted by the international community: Apartheid was
annually
condemned by the United Nations from 1952 to 1990 as inimical to
Articles 55 and 56 of the United Nations Charter, 1945:
“
Article 55
With a view to
the creation of conditions of stability and well-being which are
necessary for peaceful and friendly relations among
nations based on
respect for the principle of equal rights and self-determination of
peoples, the United Nation shall promote:
a.
Higher
standards of living, full employment, and conditions of economic and
social progress and development;
b.
Solutions of international economic, social, health, and
related problems; and international cultural and educational
cooperation;
and
c.
Universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex,
language,
or religion.
Article 56
All members
pledge themselves to take joint and separate action in co-operation
with the Organisation for the achievement of the
purposes set forth
in Article 55.”
[83]
In
1966, the General Assembly labelled apartheid as a crime against
humanity
[78]
and, in 1984, the
Security Council endorsed this determination.
[79]
[84]
The International Convention on the Suppression and Punishment of the
Crime of Apartheid, 1973 (entry into force 1976) declares
in Article
I (1):
“
The States
Parties to the present Convention declare that apartheid is a crime
against humanity and that inhuman acts resulting
from the policies
and practices of apartheid and similar policies and practices of
racial segregation and discrimination, as defined
in article II of
the Convention, are crimes violating the principles of international
law, in particular the purposes and principles
of the Charter of the
United Nations, and constituting a serious threat to international
peace and security.”
[85]
Article II continues, that:
“
the term
‘the crime of apartheid’, which shall include similar
policies and practices of racial segregation and discrimination
as
practised in southern Africa, shall apply to the following inhuman
acts committed for the purpose of establishing and maintaining

domination by one racial group of persons over any other racial group
of person and systematically oppressing them…”
[86]
Article III states that international criminal responsibility applies
to individuals, members of organisations and representatives
of the
State who commit, incite or conspire to commit the crime of
apartheid.
[87]
The Rome Statute, 2002 recognises the crime of apartheid as a
particularly pernicious crime against humanity in Article 7(1)(j)
and
describes the crime in Article 7(2)(h) as:
“
inhumane
acts of a character similar to those referred to in paragraph 1,
committed in the context of an institutionalised regime
of systematic
oppression and domination by one racial group over any other racial
group or groups and committed with the intention
of maintaining that
regime”
[88]
The dominant and international law perspective on the point is
underscored by:
1
The
near uniform adoption of the two conventions. The 1976 Convention was
adopted with 91 votes, four against (Portugal, South Africa,
the
United Kingdom and the United States) and 26 abstentions.
[80]
As at August 2008, the Convention had been ratified by 107 States.
The Rome Statute was adopted by 139 States with 118 ratifications.
2
The
fact that despite the end of apartheid as a political system in South
Africa, it lives on as a specie of the crime against humanity.
Both
under customary international law
[81]
and the Rome Statute of the International Criminal Court.
3
The
Rome Statute was adopted and signed on 17 July 1998 by a majority of
states attending the Rome Conference, including the new
democratic
South Africa. South Africa ratified the Rome Statute on 27 November
2000 and, in accordance the obligation of states
parties, South
Africa passed the Implementation of the Rome Statute of the
International Criminal Court, 2002
[82]
on 16 August 2002 which is now the domestic law giving effect to
the Rome Statute in South Africa. Therefore, apartheid which
is
represented by the Old Flag must, in South Africa, as in the
international arena, be acknowledged and classified as a crime

against humanity.
4
As
evidenced in the affidavit of the SAHRC, the Old Flag is an
internationally understood symbol of white supremacy
[83]
and as stated in the Minister’s affidavit is “an image
that was the international symbol of apartheid”.
[84]
[89]
For these reasons, the dominant meaning attributable to the Old Flag,
both domestically and internationally, is that it is
for the majority
of the South African population a symbol that immortalises the period
of a system of racial segregation, racial
oppression through
apartheid, of a crime against humanity and of South Africa as an
international pariah state that dehumanised
the black population.
[90]
A
practical meaning of the Old Flag was demonstrated, as the Department
points out, by the fact that it is adopted and used internationally

by white supremacists around the world as a symbol of hatred,
oppression and racial superiority. In the United States of America,

for example, the Old Flag was worn by convicted murderer, Dylann
Roof, on the day he shot and killed nine black people at a church
in
Charleston, South Carolina in 2015.
[85]
Most peace loving South Africans who may otherwise have been inclined
to support the Old Flag, must feel ashamed when such
incidences
occur.
[91]
The Old Flag is associated with the shameful apartheid policy with
which most peace-loving South Africans, of all races, do
not wish to
be associated.
[92]
It is now necessary, to consider hate speech in South Africa, and
against the history and meaning of the Old Flag, to determine
whether
a gratuitous display of that flag constitutes hate speech.
Hate
Speech
Dictionary
Meaning
[93]
The
ordinary grammatical meaning of the expression “hate speech”
as used in everyday language is the dictionary meaning
[86]
.
[94]
The
Oxford
Dictionary
meaning of “hate speech” is: “
speech
expressing hatred / intolerance of other groups, especially on the
basis of race, gender etc.”
[87]
The
Mirriam
Webster Dictionary
defines “hate speech” as: “speech expressing hatred
of a particular group of people”.
[88]
Cambridge
Dictionary
explains it as: “public speech that expresses hate or
encourages violence towards a person or group based on something such

as race, religion, sex, or sexual orientation.”
[89]
Harper
Collins English Dictionary
describes it as “speech disparaging a racial, sexual, or ethnic
group or a member of such group”
[90]
In short it is speech and expresses hatred towards a person or
his or her group based on race or other attributes such
as religion,
sex, ethnicity, sexual orientation and the like. It may even, but
does not necessarily, encourage violence towards
the group or a
member of such group.
Legislation
[95] Section 10(1)
prohibits hate speech and provides:
“
Subject to
the proviso in section 12, no person may publish, propagate, advocate
or communicate words based on one or more of the
prohibited grounds,
against any person, that could reasonably be construed to demonstrate
a clear intention to –
(a)
be
hurtful;
(b)
be
harmful or to incite harm;
(c)
promote or propagate hatred.”
[96]
‘
Prohibited
grounds’
as defined by the Equality Act is fairly broad, and includes race,
sexual orientation “
or
any other ground where discrimination based on that other ground
causes or perpetuates systemic disadvantage or undermines human

dignity.
[91]
[97]
The proviso in section 12, states that any:
“…
bona
fide engagement in artistic creativity, academic and scientific
inquiry, fair and accurate reporting in the public interest
or
publication of any information, advertisement or notice in accordance
with section 16 of the Constitution, is not precluded
by the
section.”
[98]
The section needs to be interpreted together with its proviso, in
order to answer the question, having regard to the explanation
of the
Old Flag and its meaning, whether a gratuitous display of the Old
Flag constitutes hate speech under section 10(1) of the
Equality Act.
[99]
It is proposed to approach the interpretation within a framework,
which is mandated by the Constitution, international law,
the
Equality Act itself and with the benefit of comparative law. It is an
approach which we shall refer to as the legal interpretive
framework.
It is then proposed to have regard to the purpose and objects of the
Equality Act and the language of section 10 itself.
Legal
interpretive framework
The
Constitution as an interpretive aid
[100]The
first duty is for the Court to interpret the hate speech provisions
having regard to and in accordance with the approach
mandated by the
Constitution. What then is the duty that the Constitution places on
the courts when interpreting legislation?
[101]Section
39(2) of the Constitution provides that:
“
When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must
promote
the spirit, purport and objects of the Bill of Rights
.”
(Emphasis added)
[102]This
duty upon a court to interpret legislation in a manner consistent
with the Bill of Rights was set out by the Constitutional
Court in
the case of
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
and Others v Smit NO and Others
[92]
(
Hyundai
)
as follows:
[93]
“
The
Constitution requires that judicial officers
read
legislation, where possible, in ways which give effect to its
fundamental values
. Consistently with this, when the
constitutionality of legislation is in issue,
they are
under duty to examine the objects and purport of an Act and to read
the provisions of the legislation, so far as possible,
in conformity
with the Constitution
”
(Emphasis added)
[103]Human
dignity, equality and freedom are imperatives underpinning this
constitutional injunction. The Constitutional Court in
Hyundai
quoted with approval an extract from the judgment of Ackerman J in
the case of
De
Lange v Smuts NO and Others
[94]
(“
De
Lange
”)
where he stated that the principle of reading legislation in
conformity with the Constitution does –
“
no more
than give expression to a sound principle of constitutional
interpretation recognised by other open and democratic societies

based on human dignity, equality and freedom such as, for example,
the United States of America, Canada and Germany, whose
constitutions,
like our 1996 Constitution, contain no express
provision to such effect. In my view, the same interpretative
approach should be
adopted under the 1996 Constitution.”
[95]
[104]The
approach in
Hyundai
that legislation must be interpreted through the lens of section
39(2) of the Constitution, is only possible where a constitutional

interpretation can be reasonably ascribed to the wording of the
section of the legislation under review.
[96]
In
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
(“
National
Coalition”)
the Constitutional Court held that –
“
There is,
it is true, a principle of constitutional interpretation that where
it is reasonably possible to construe a statute in
such a way that it
does not give rise to a constitutional inconsistency, such a
construction should be preferred to another construction
which,
although also reasonable, would give rise to such inconsistency. Such
a construction is not a reasonable one, however, when
it can be
reached only by distorting the meaning of the expression being
considered.”
[97]
[105]In
the same case the Constitutional Court stated that interpreting
legislation in a manner consistent with section 39(2) of
the
Constitution is an interpretive process which “
is
limited to what the text is reasonably capable of meaning
.”
[98]
[106]The
above requirements, which shall be referred to as the
Hyundai
test, require that the court:
1 Consider the
objects and purport of the legislation under scrutiny; and
2 Read the
provisions of the legislation as far as possible in a manner which is
consistent with the Constitution, to the extent
that the text is
reasonably capable of bearing such a meaning.
[107]The
above principles of constitutional interpretation accord with the
approach reiterated and confirmed in a number of Constitutional
Court
decisions over a a long time.
[99]
The principles are thus by now trite.
International
law as an interpretive aid
[108]An
equally important provision of the Constitution is section 39(1)(b)
which requires that international law must be used as
an interpretive
aid when the court interprets the rights set out in the Bill of
Rights.
[100]
International
law is thus key when interpreting rights in the Bill of Rights.
[109]The
provisions of section 10 of the Equality Act are inextricably linked
to the Bill of Rights. As set out below, section 10(1)
gives effect
to the following sections of the Constitution: section 9 (the right
to equality), section 10 (the right to dignity),
and section 16(2)(c)
(the exclusion of hate speech from the ambit of the right to
expression). Similarly, section 7 of the Equality
Act that forbids
unfair racial discrimination is linked to sections 9 and 10 of the
Constitution. Section 11 of the Equality Act
is also linked to both
constitutional rights, and possibly other rights in the Bill of
Rights. Therefore, a court interpreting
these sections must have
regard to international law. However, for now we focus on section
10(1) read together with the proviso
which deals with hate speech and
shall revert later to the other impugned provisions of the Equality
Act to the extent necessary.
[110]In
addition to the two constitutional injunctions, more directly section
233 of the Constitution requires that:
“
When
interpreting any legislation, every court
must
prefer any reasonable interpretation of the legislation that is
consistent with international law over any alternative interpretation

that is inconsistent with international law
.” (Emphasis
added)
[111]
The Constitutional Court in
Glenister
v President of the Republic of South Africa
(“
Glenister
”)
emphasised the role of international law as an interpretive aid when
it stated as follows:
[101]
“
Our
Constitution reveals a clear determination to ensure that the
Constitution and South African law are interpreted to comply with

international law
, in particular international
human-rights law. Firstly, s 233 requires legislation to be
interpreted in compliance with international
law; secondly, s
39(1)(b) requires courts, when interpreting the Bill of Rights, to
consider international law…These provisions
of our
Constitution demonstrate that international law has a special place
in our law which is carefully defined by the Constitution
.”
(Emphasis added)
[112]The
Supreme Court of Appeal (“SCA”) also emphasised this
principle in
Minister
of Justice and Constitutional Development and Others v Southern
Africa Litigation Centre and Others
.
[102]
The SCA noted that our Constitution—
“
decrees
that, when interpreting any legislation, the courts must prefer a
reasonable interpretation that is consistent with international
law
over any alternative interpretation that is inconsistent with
international law.”
[113]To
sum up, the requirements of the Constitution as considered by our
highest courts may be stated as follows: Both the Constitution
and
South African law in general must be interpreted in a manner which
complies with international law, if such an interpretation
is a
reasonable one. It follows then that when section 10(1) of the
Equality Act is interpreted, its meaning should be interpreted
in a
manner which is consistent with international law. If the
interpretation of the section that is consistent with international

law is reasonable, then that interpretation is to be preferred to an
interpretation which is inconsistent with international law.
Comparative
foreign law as a possible interpretive aid
[114]South
African jurisprudence does not develop in isolation to other
comparable legal systems, though our courts are not bound
by their
jurisprudence. This includes but is not limited to our human rights
jurisprudence.
[115]Our
courts have thus regularly referred to foreign jurisprudence to
assist them in the interpretation of legislation and the
development
of the common law. In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
,
[103]
the SCA considered and made extensive reference to foreign
jurisprudence in the context of reformulating the common-law approach

to the interpretation of statutes. In
S
v Makwanyane
the Constitutional Court emphasised that “our courts can derive
assistance from…foreign case law, but we are in no
way bound
to follow it.”
[104]
In
Masstores
(Pty) Ltd v Pick ‘n Pay Retailers (Pty) Ltd
[105]
the Constitutional Court determined Aquilian liability in the context
of unfair competition and, with reference to its earlier
decision in
Makwanyane
,
made a similar pronouncement in relation to foreign comparative law.
[116]Furthermore,
section 39(1)(c) of the Constitution provides expressly that courts
“may consider foreign law” when
interpreting the Bill of
Rights. A similar principle will apply when courts interpret
legislation that impacts on or gives effect
to the Bill of Rights. In
President
of the RSA v M & G Media Ltd
[106]
the Constitutional Court sought to interpret how the state discharges
the burden under section 81(3) of the Promotion of Access
to
Information Act 2 of 2000 (PAIA) of establishing that its refusal to
grant access to a record is justified. In doing so the
Court had
regard to foreign comparative legislation, and held as follows:
“
Before
formulating the standard to assess whether the State has properly
discharged its burden under s81(3), it is desirable to
consider
foreign jurisprudence dealing with comparable legislation, as we are
encouraged to do by s39(1)(c) of the Constitution.
Foreign
jurisprudence is of value because it shows how courts in other
jurisdictions have dealt with the issues that confront us
in this
matter. At the same time, it is important to appreciate that foreign
case law will not always provide a safe guide for
the interpretation
of our Constitution. When developing our jurisprudence in matters
that involve constitutional rights, as the
present case does, we must
exercise particular caution in referring to foreign jurisprudence.”
[117]In
the present instance, it is accordingly appropriate for this Court to
make reference to foreign law in considering the proper
scope and
application of the Equality Act, particularly section 10. This is
more so the case because of the direct effect the applicants’

interpretation of the Equality Act has on the right to equality in
section 9, the right to dignity in section 10, and on the limitation

of the right to freedom of expression in section 16(2)(c).
The
interpretive injunction in section 3 of the Equality Act
[118]In
addition to the injunctions and guidelines provided by the
Constitution as the supreme law of the land, the Equality Act
itself
provides important pointers to those who have to interpret and apply
its provisions. Section 3 of the Equality Act expressly
echoes the
above duties to interpret that Act in a manner that accords with its
purpose, in consonance with the Constitution, in
accordance with
international law, and possibly having regard to foreign comparative
law. It goes further, however, by introducing
context as an
interpretive marker.
[119]Section
3(1) of the Equality Act provides that –
“
Any
person applying this Act must interpret its provisions to give effect
to
–
(a)
the
Constitution
, the provisions of which include the
promotion of equality through legislative and other measures designed
to protect or advance
persons disadvantaged by past and present
unfair discrimination;
(b)
the
Preamble, the objects
and guiding principles of
this
Act
, thereby fulfilling the spirit, purport and objects of
this Act.”
(Emphasis added)
[120]Section
3(2) of the Equality Act provides that –
“
Any
person interpreting this Act may be mindful of
–
(a)
any relevant law or code of practice in terms of a law;
(b)
international law
, particularly the
international agreements referred to in section 2 and customary
international law;
(c)
comparable foreign law
.”
(emphasis
added)
[121]Section
3(3) of the Equality Act requires that any person applying or
interpreting the Act “
must take into account
the
context
of the dispute and
the purpose of this
Act
.”
(Emphasis added)
[122]
To sum up, the applicable principles with regard to the legal
interpretive framework:  A court must interpret the relevant

sections of the Equality Act in a manner which best accords with the
legal interpretive framework set out above. The framework
requires
the following. Sections of the Equality Act, including section10(1),
must be given a meaning which its wording is reasonably
capable of
bearing. That interpretation must accord with the objects of the
Equality Act. Where there are multiple interpretations,
the
interpretation that is adopted must be consistent with international
law. That interpretation can be assessed against comparative
foreign
law. It must further take into account the context of the dispute.
And, most importantly, it must give effect to the spirit,
purport and
objects of the Bill of Rights and ensure that sections of the
Equality Act are generally consonant with the Constitution.
[123]It
is apposite therefore that this Court must have regard to the purpose
of hate speech under section 10(1) of the Equality
Act.
[124]
Section 2 of the Equality Act sets out its objects in relevant part
as follows:
“
The
objects of this Act are –
(a)
to
enact legislation required by section 9 of the Constitution
;
(b)
to
give effect to the letter and spirit of the Constitution
,
in particular –
(i)
the equal enjoyment of all rights and freedoms by every
person
;
(ii)
the promotion of equality;
(iii)
the values of non-racialism and non-sexism contained in
section 1 of the Constitution;
(iv)
the prevention of unfair discrimination and protection of
human dignity as contemplated in sections 9 and 10 of the
Constitution
;
(v)
the prohibition of advocacy of hatred
, based on
race, ethnicity, gender or religion,
that constitutes
incitement to cause harm as contemplated in section 16(2)(c) of the
Constitution and section 12 of this Act
;
(c) …
(d) …
(e) …
(f) …
(g) …
(h)
to
facilitate further compliance with international law obligations
including treaty obligations in terms of, amongst others, the
Convention on the Elimination of All Forms of Racial Discrimination

and the Convention on the Elimination of All Forms of Discrimination
against Women”.
(Emphasis added)
[125]Section
10 of the Equality Act must thus further be interpreted and ascribed
a meaning which it can reasonably bear having
regard to these objects
when viewed in light of the Constitution.
Language
of section 10
[126]
Against the backdrop of the above interpretive framework, one should
drill down to the language of section 10 to determine
its meaning in
relation to the issue at hand. It bears recalling its language:
“
10
Prohibition of hate speech
(1)
Subject to the proviso in section 12, no person may
publish
,
propagate
,
advocate
or
communicate
words
based on
one or more of the prohibited grounds, against any person, that could
reasonably be construed
to demonstrate
a
clear intention
to –
(a)
be
hurtful;
(b) be harmful or
to incite harm;
(c)
p
romote
or propagate hatred.”
[107]
And
the proviso in section 12 reads:
“…
bona
fide
engagement in artistic creativity
, academic
and scientific inquiry, fair and accurate reporting in the public
interest or publication of any information, advertisement
or notice
in accordance with section 16 of the Constitution, is not precluded …
” (Emphasis added)
[127]
The first respondent, Afriforum, relies on a literal reading and
interpretation of section 10(1) and contends that because
the hate
speech prohibition therein refers to “words”, it does not
apply to the display of the Old Flag which is a
symbol and not
words.
[108]
The literal
interpretation it seeks to rely on fails to have regard to the
relevant principles of interpretation articulated above
as the legal
interpretive framework.
[128]The
reference to “words” in section 10(1) must be given a
generous and wide meaning going beyond mere verbal representations.

There are at least four textual markers which indicate this, two of
which are directly located in section 10 itself.
[129]Firstly,
the heading of section 10 contemplates the “Prohibition of hate
speech
” (emphasis added).  When regard is had to
the purpose for which the Equality Act was enacted, the provisions of
the
Constitution, international law and comparative foreign law,
“speech” must be widely interpreted to mean all forms of

expression of ideas. It is not limited to verbal representations.
This is dealt with further below. The essence of speech is
communication.
This in turn suggests that “words” in
section 10(1) should not be taken literally, but should be given a
wider meaning,
in order to achieve its purpose and the broad purpose
of the Equality Act. It must include in this regard all hate speech
however
expressed. “Speech” is certainly already wider
than “words” and sits comfortably with the section read
as a whole and in the context of the entire Equality Act.
[130]Secondly,
section 10(1) provides that nobody may “propagate” or
“advocate” hateful “words”.
These verbs are
ill-fitting if “words” is taken literally. How does one
“propagate” or “advocate”
words? But ideas
can be “advocated” or “propagated”. In order
for these two verbs to make sense and be
given their full meaning,
the prohibition must apply to “ideas”, irrespective of
how those ideas are expressed. Not
only will these two verbs make
sense, but the rest of the verbs also sit comfortably and retain a
sensible meaning. Thus, the effect
will be that: no person may
publish, propagate or communicate
words / ideas
based on
prohibited grounds with a clear intention to be hurtful, harmful,
incite harm, promote or propagate hatred.
[131]Similarly,
one does not “communicate” words. What is being
communicated is the meaning conveyed, words being a
medium (and not
the only one). All the verbs employed in the section are consistent
with a wider meaning being attributed to “words”.
Hence
it makes sense and it is consistent with the purpose of the Equality
Act, the Bill of Rights and international law for the
section to
provide that no person may publish, propagate, advocate or
communicate
speech
,
ideas
,
ideologies
,
beliefs
,
meaning
,
instructions
(etc) based on one or more of the
prohibited grounds with the intention to achieve the stated effects.
This wider meaning gives
the subsection, read as a whole, a sensible
and reasonable interpretation and which fits in with the interpretive
framework set
out above.
[132]
“Words” in section 10(1) of the Equality Act may be
interpreted to mean ideas, ideologies, beliefs, instructions,
etc
conveyed by the words. Words thus mean what the words convey or mean
and not just a conglomeration of letters, which though
constituting a
word or words may be meaningless in a particular context. What the
section targets is thus the meaning behind words
and not simply
words, although the subject of the verbs is stated as “words”.
What is behind words, that is, their
meaning, may be represented by
verbal and non-verbal expressions. A wider meaning is thus clearly
the most sensible, reasonable
and consistent with the principle-based
interpretive framework. It is the correct meaning.
[133]Thirdly,
one of the objects of the Equality Act, set out in section 2(b)(v),
is to give effect to “the letter and spirit
of the
Constitution”, in particular the exclusion from constitutional
protection of “advocacy of hatred, based on race,
ethnicity,
gender or religion, and that constitutes incitement to cause harm: as
contemplated in section 16(2)(c) of the Constitution”.
The
notion of “advocacy of hatred” set out in section 2(b)(v)
of the Equality Act is broad. It cannot be interpreted
narrowly to
mean only words. That would run completely contrary to “the
letter and spirit of the Constitution”. This
is a further
reason why “words” in section 10(1) cannot be taken
literally. Instead, section 10 must be read as prohibiting
any
“advocacy of hatred” which may manifest itself in any
expression of ideas.
[134]Fourth,
the prohibition in section 10 is expressly made subject to the
proviso in section 12 which reads as follows:
“
Provided
that bona fide engagement in artistic creativity, academic and
scientific inquiry, fair and accurate reporting in the public

interest or publication of any information, advertisement or notice
in accordance with section 16 of the Constitution, is not precluded

by this section.”
[135]The
proviso clearly excludes the expression of ideas, not only by words,
but also by artistic means. It makes sense only if
the prohibition in
section 10 is also understood to apply to all expression of hateful
ideas, whether by word or conduct.
“
Advocacy
of hatred” - same meaning
[136]The
relevant section in the Bill of Rights itself does shed light on a
proper interpretation of section 10 of the Equality
Act. Section
16(1) of the Bill of Rights protects freedom of expression. Section
16(2), however, excludes certain categories of
speech from the
protection of section 16(1). Section 16(2)(c) removes hate speech
from the protection of section 16(1) by excluding
any “
advocacy
of hatred
that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm.”
(Emphasis
added) One sees immediately the expression “advocacy of hatred”
which is echoed and repeated in section 2(b)(iv)
of the Equality
Act.
[109]
That expression
where it appears in section 2 (b)(iv) of the Equality Act must bear
the same meaning as it bears in section 16(2)
(c) of the Bill of
Rights.
[137]The
prohibition in section 10 of the Equality Act is intended
inter
alia
to prohibit the kind of speech excluded from protection by
section 16(2)(c) of the Bill of Rights. The Bill of Rights does not
confine the exclusion to hate speech expressed in words. It thus
applies to the advocacy of hatred by any means, whether by word
or
conduct.
[138]The
Constitutional Court made this clear in
Islamic Unity Convention v
Independent Broadcasting and Others
(
Islamic Unity Convention
)
when explaining what genuine hate speech is:
“
Section
16(2) (c) is directed at what is commonly referred to as hate speech.
What
is not protected by the Constitution is
expression
or speech
that amounts to 'advocacy of hatred' that is based on one or other of
the listed grounds, namely race, ethnicity, gender or religion
and
which amounts to 'incitement to cause harm
.”
[110]
(Emphasis added)
The
Constitutional Court here makes it clear that unprotected hate speech
is “expression or speech”.  It is not
limited to
words – the narrow interpretation that is rejected. Although
this was stated in the interpretation of the Constitution,
it is an
interpretation with which section 10 of the Equality Act must be
aligned.
[139]Section
10 must accordingly be interpreted to do likewise. It would be
irrational to limit its prohibition to the advocacy
of hatred by
words but not by other means because the main purpose of section 10
of the Equality Act is to prohibit
all
hate speech. This is
evident from the broad prohibition against the “advocacy of
hatred” set out in section 2(b)(iv),
describing an object of
the Act.
Interpretation
advocated by Afriforum – untenable
[140]The
interpretation that Afriforum advocates violates the Constitution in
several respects and is therefore untenable and unsustainable
in
several respects as I shall demonstrate, particularly because
Afriforum does not seek constitutional invalidity.
Equality
[141]
Afriforum submits that section 10(1) of the Equality Act applies only
to hate speech communicated by “words”.
If it were so,
then the State would not be adequately protecting the rights to
dignity and protection against unfair discrimination
of people who
are subjected to hateful communication expressed in a form other than
words. In other words, people who experience
hate speech communicated
by other forms of expression than words would not have any protection
or remedies under section 10 of
the Equality Act. This interpretation
does not make sense and runs counter to the objects of the Act and
all the principles in
the interpretive framework.
[142]
The legislature could not have intended for this to be the case. Such
an interpretation is untenable. It does not accord with
the wording
of section 10(1) of the Equality Act as described above.
[143]This
interpretation would also irrationally differentiate between hate
speech by language (which is prohibited) and hate speech
by other
means (which is not prohibited). It would run contrary to one of the
objects of the Equality Act set out in section 2(b)(i),
namely to
give effect to the letter and spirit of the Constitution, in
particular the equal enjoyment of all rights and freedoms
by every
person. And it would directly fall foul of the fundamental right to
equality in section 9 of the Constitution which provides
in section
9(1) that “everyone is equal before the law and has the right
to equal protection and benefit of the law.”
[144]Section
9(4) of the Constitution requires parliament to enact legislation “to
prevent or prohibit unfair discrimination”.
The Equality Act
was enacted to fulfil this duty.
[111]
If the prohibition of hate speech (which is a form of unfair
discrimination) is limited to hate speech expressed in words, and

does not extend to hate speech expressed in other forms of
expression, the prohibition of hate speech in section 10 and the
Equality
Act itself would fall short of the obligation imposed on
parliament by section 9(4) of the Constitution to prohibit
all
forms of unfair discrimination (and not just discrimination expressed
in the form of words).
[145]In
order to pass constitutional muster, the exercise of public power
must be rationally related to the purpose sought to be
achieved by
the exercise of that power.
[112]
The restriction of the prohibition of hate speech to words only would
not achieve the purpose of the Equality Act which is to prohibit
all
forms of hate speech and unfair discrimination. The restriction is
accordingly irrational, clearly unlawful and must be rejected.
Dignity
[146]This
narrow interpretation would also be contrary to the object of the
Equality Act set out in section 2(b)(iv) as it would
undermine the
right to dignity. Human dignity informs the interpretation of all
other rights, including the right to freedom of
expression and the
right to equality.
[113]
The
right to freedom of expression must be realised in a manner that does
not violate the dignity of others. And, as described
above, the right
to equality must be realised in a manner that ensures everyone is
equal before the law and has the right to equal
protection and
benefit of the law, so as to ensure their dignity.
[147]If
section 10(1) of the Equality Act was read as prohibiting literally
only “words” it would directly contravene
the right to
dignity (in section 10 of the Constitution) of victims of non-verbal
hate speech. This is because it would result
in such victims being
forced to endure hatred and suffer affronts to their dignity without
the protection of section 10 of the
Equality Act simply because the
aggressor chose to express their hatred in a non-verbal manner. The
absurdity of the interpretation
by Afrforum is demonstrated by an
example put forward by counsel: where section 10 of the Act would
prohibit a white racist from
describing a black colleague as “baboon”
in front of other colleagues, but not prohibit him from circulating
an image
of the same colleague’s face superimposed on the body
of a baboon.  The restriction of hate speech under section 10(1)

literally to “words”, in this context, would not only
undermine the right to dignity, but would also “
lead
to an absurdity so glaring that it could not have been contemplated
by the legislature
”.
[114]
It is unjustifiably narrow and unconstitutional.
International
Law
[148]
Article 20, paragraph 2 of the International Covenant on Civil and
Political Rights (ICCPR), ratified by South Africa on 10
December
1998, provides that:
“
Any
advocacy
of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence shall
be prohibited
by law.”
(Emphasis added)
[149]Furthermore,
Article 4 of the 1965 International Convention on the Elimination of
All forms of Racial Discrimination (ICERD),
ratified by South Africa
on 09 January 1999, states that:
“
State
Parties condemn all propaganda and all organisations which are based
on ideas or theories of superiority of one race or group
of persons
of one colour or ethnic origin, or which attempt to justify or
promote racial hatred and discrimination in any form,
and undertake
to adopt immediate and positive measures designed to eradicate
all
incitement to, or acts of, such discrimination
and, to
this end, with due regard to the principles embodied in the Universal
Declaration of Human Rights and the rights expressly
set forth in
article 5 of this Convention, inter alia:
(a)
Shall declare an offence punishable by law
all
dissemination of ideas
based on racial superiority or
hatred, incitement to racial discrimination, as well as all acts of
violence or incitement to such
acts against any race or group of
persons of another colour or ethnic origin, and also the provision of
any assistance to racists
activities, including the financing
thereof.”
(Emphasis added)
[150]The
ICCPR prohibits “
any advocacy
” of racial hatred.
The ICERD provides that all state parties (including South Africa)
shall eradicate “all incitement
to, or acts of, such
discrimination”. It furthermore requires them to declare “all
dissemination of ideas” based
on racial superiority, hatred,
discrimination, acts of violence and incitement to such acts,
offences punishable by law. Both instruments
are broad in their
ambit. They embrace the prohibition of hate speech in the widest
sense to include any expression of ideas. Neither
instrument draws a
distinction between verbal and non-verbal advocacy or communication
of racial hatred.
[151]As
a state party to both the ICCPR and ICERD, South Africa is obliged to
comply with these provisions. Accordingly, at least
under
international law, South Africa is obliged by both instruments to
promulgate laws which prohibit hate speech in the widest
sense so as
to include any expression of ideas.
[152]This
Court is enjoined to give effect to the objects of the Equality Act.
One of the objects of the Equality Act, set out in
section 2(h), is
“
to facilitate further compliance with international law
obligations
”. Furthermore, in accordance with section 233
of the Constitution, the Court
must prefer
the applicants’
reasonable interpretation which is consistent with international law
over respondents’ alternative
interpretation that is
inconsistent with international law. In other words, section 10(1) of
the Equality Act must be interpreted
in a manner that prohibits any
manner of expression which constitutes hate speech, and not just
words or verbal expressions. Such
an interpretation complies with the
constitutional imperative of ensuring consistency with international
law. It also accords with
one of the objects of the Equality Act,
namely to facilitate compliance with international law.
[153]When
interpreting and applying section 10 of the Equality Act, a court
having regard to this context should not limit the scope
of the
prohibition of hate speech in section 10(1) to literally only
“words”, thereby allowing expressions of hatred
in
non-verbal forms to escape prohibition.
Comparative
Law
[154]
The United States First Amendment prohibits the abridgment only of
“speech”
[115]
-
not “conduct” or “expression”. But the US
courts have long recognised that “speech” under
the First
Amendment is not limited to words, but extends to the communication
of ideas in the form of conduct and gestures.
[155]Thus
in
Spence
v Washington
the US Supreme Court held that the First Amendment extends to
non-verbal conduct, including the display of the national flag, if

such conduct is “sufficiently imbued with elements of
communication to fall within the scope of the First and Fourteenth

Amendments.”
[116]
The
test to determine whether the particular conduct possesses sufficient
communicative elements is whether “[a]n intent
to convey a
particularised message was present, and [whether] the likelihood was
great that the message would be understood by
those who viewed
it.”
[117]
[156]In
Texas
v Johnson
(“
Johnson
”)
the majority of the US Supreme Court held that the public burning of
the national flag, in the context – at a demonstration
held in
protest of the Reagan administration and certain Dallas-based
corporations – constituted “expressive conduct”

which was protected under the US First Amendment.
[118]
The court in
Johnson
also made the following instructive remarks regarding why conduct
involving a national flag would fall under the notion of “speech”

in the First Amendment:
“
That we
have had little difficulty identifying an expressive element in
conduct relating to flags should not be surprising. The
very purpose
of a national flag is to serve as a symbol of our country;
it
is, one might say, ‘the one visible manifestation
of…nationhood
.’
…
Pregnant with
expressive content, the flag as readily signifies this Nation as does
the combination of letters found in ‘America’
.”
(Emphasis added)
[119]
[157]
The Supreme Court in
Johnson
also relied on
West
Virginia State Board of Education v Barnette
[120]
(“
Barnette”
),
a case about certain laws and regulations that required public school
learners to salute the national flag, failing which a learner
could
be expelled on the basis of insubordination. The Court in
Barnette
[121]
made the following instructive obiter statement regarding
a
gesture
(the flag salute) that was required to be performed as a sign of
respect and of loyalty to the US, which the Court found to constitute

“speech” under the US First Amendment:
“
[T]he
flag salute is a form of utterance. Symbolism is a primitive but
effective way of communicating ideas. The use of an emblem
or flag to
symbolise some system, idea, institution, or personality, is a
shortcut from mind to mind
.
Causes and
nations, political parties, lodges and ecclesiastical groups seek to
knit the loyalty of their followings to a flag or
banner, a colour or
design. The State announces rank, function, and authority through
crowns and maces, uniforms and black robes;
the church speaks through
the Cross, the Crucifix, the altar and shrine, and clerical raiment.
Symbols of State often convey political ideals just as
religious symbols come to convey theological ones
.
”
(Emphasis added)
[158]The
following words of the US Supreme Court in the above obiter are
instructive: “
[T]he flag salute is a form of utterance.
Symbolism is a primitive but effective way of communicating ideas.
The use of an emblem
or flag to symbolise some system, idea,
institution, or personality, is a shortcut from mind to mind…Symbols
of State often
convey political ideas just as religious symbols come
to convey theological ones
.”
[159]It
is thus reasonable to interpret “words” in section 10(1)
of the Equality Act to include non-verbal expressions
of ideas. This
would be analogous to the broad manner in which the US courts have
interpreted the term “speech” under
the US First
Amendment. The use of symbols is indeed “a short cut from mind
to mind”. They communicate just as with
words do.
Context
[160]Section
3(3) of the Equality Act requires that any person applying or
interpreting the Act “must take into account the
context of the
dispute and the purpose of this Act”.
[161]The
present case vividly illustrates this point. The display of the Old
Flag is extremely hurtful and dehumanising to those
who suffered
under apartheid. The message generally communicated by displays of
the Old Flag indicates a symbol of support for
and promotion of the
racist ideologies espoused under the apartheid regime. This
communication, in turn, promotes hatred and harm
towards those who
suffered, and continue to suffer, as a result of this regime and has
the potential to diminish their suffering
or indicate a support for
such suffering – a clear affront to the dignity of those who
suffered as a result of the racist
and dehumanising policies of
apartheid.
[162]In
interpreting and applying section 10 of the Equality Act, a court
having regard to this context should not limit the scope
of the
prohibition of hate speech in section 10(1) to literally only
“words”, thereby allowing expressions of hatred
in
non-verbal forms to escape prohibition.
Conclusion
on “words” in section 10
[163]
To sum up and conclude: Section 10 of the Equality Act should be
interpreted in a manner that prohibits all expressions of
ideas,
verbal and otherwise (including the displaying of a flag), that
amount to hate speech. Accordingly, “words”
in section
10(1) must not be read literally. It must be interpreted to be wide
enough to include expression of ideas such as the
waving of a flag.
Such an interpretation is not unreasonable. Instead, it ascribes a
meaning to section 10(1) and “words”
which is reasonably
capable of being borne. It accords with the objects of the Equality
Act. It is consistent with international
law. It is not out of kilter
with comparative foreign law. It takes into account the context of
the dispute. And, most importantly,
it gives effect to the spirit,
purport and objects of the Bill of Rights and ensures that section
10(1) is generally consonant
with the Constitution. Accordingly, the
prohibition against hate speech in section 10 (1) applies to and
regulates the waving of
the Old Flag. This is so having regard to the
correct legal interpretation of the section that requires “words”
in
that section to be given a wide interpretation to include symbols
such as the flag.
[164]In
contrast, Afriforum and FAK sought to urge this Court to interpret
section 10(1) of the Equality Act to mean only that ideas
expressed
by “words”, that is, ideas expressed by verbal language
alone, can amount to hate speech. Although at a superficial
level
this may appear to accord with the ordinary literal meaning of
“words”, it is an interpretation which is absurd,
[122]
unreasonable and out of sync with the purpose of the Act. It could
not have been intended by the legislature because it is contrary
to
the objects of the Equality Act itself, it is inconsistent with
international law, it is out of kilter with comparative foreign
law,
it fails to take into account the context of the dispute, and runs
contrary to the spirit and letter of the Constitution (particularly

rights in the Bill of Rights).
[165]
Apartheid discriminated against black people purely on the basis of
their race or colour of their skin. This is a prohibited
ground for
discrimination under the Equality Act. The conclusion reached
regarding the dominant meaning of displaying the Old Flag
and the
wide interpretation that is given to “words” in section
10 (1) lead to the inevitable conclusion that the gratuitous
display
of the  Old Flag constitutes, as against black people, the
publishing, propagating, advocating or communication (expression)
of
hatred based on prohibited grounds (i.e., race and possibly sexual
orientation).
Clear
intention attributable
[166]The
next question on the topic of hate speech is what is the clear
intention, if any, that is reasonably construed from such
display. In
other words, is there evidence or a base to hold that the gratuitous
display of the Old Flag can reasonably be construed
to demonstrate
the clear intent required in section 10 (1) of the Equality Act.
[167]
Afriforum contends that the order sought by the applicants ‘is
inappropriate on the basis that ‘different people
may have
different
intentions
when they display the old flag’ and accordingly, that even if
the Act were to regulate display of the Old Flag, it would
need to do
so ‘on a case by case basis’.
[123]
(Emphasis added)
[168]However,
clear intention here refers to objective intent and not to the
subjective intent of the speaker. The available authorities
on
section 10 are unanimous in holding that the subjective intention is
irrelevant, and the test is whether the speech objectively

demonstrates a hurtful, harmful or hateful meaning.
[124]
It would for instance not depend on the subjective intent of the
speaker to establish that calling or referring to a black person
by
the “k” word is prohibited hate speech. It is the
objective intention determined on the basis of context that leads
to
such a conclusion.
[169]This
Court is accordingly in a position to determine the issue and answer
the question with the full benefit of the meaning
of such display
determined contextually with the benefit of evidence and full
argument from the parties who are well placed to
make the submissions
they made. With the benefit of the historical and current meaning of
the display of the Old Flag, this Court
also has regard to what the
evidence suggests to be the effect of such display in order to answer
the question.
[170]Testifying
for the Mandela Foundation, Mr Hatang imputes the following intention
to those who gratuitously display the Old
Flag:
“
[They]
still see me and other black people as ‘other’, and would
deny us the opportunity just to be human. They have
no concern or
compassion for the suffering that the majority of South Africans
endured during apartheid and continue to bear as
a result of
apartheid.”
[125]
[171]
The SAHRC testified, through one of its Commissioners, that
gratuitous display of the Old Flag:
(a)
“
can,
… only plausibly and reasonably be construed as a means of
asserting one's affinity with, endorsement of and mourning
for the
apartheid regime which resulted in the undignified, degrading and
detestable treatment of black people”;
[126]
(b)
“
promotes
the apartheid regime and laments its downfall, and, in turn, promotes
hatred and harm towards those who suffered, and continue
to suffer,
as a result of this regime”;
[127]
(c)
“
is
also extremely hurtful and dehumanising to those who suffered under
apartheid as it has the potential to diminish their suffering
or
indicate a support for such suffering
.”
[128]
[172]
The Department testified that a gratuitous display of the Old Flag:
“imputes to those hoisting [it] that they reminisce
and long
for the days when the Old Flag was the national flag of the country
between 1928 and 1994.”
[129]
[173]
In its Founding Affidavit, Pride testify that: “The gratuitous
display of the Old Flag demeans, humiliates, and creates
a hostile
and intimidating environment towards members of the LGBT+ community
who were also victims of apartheid and its legacy.
It also
demonstrates a clear intention to be harmful, hurtful and hateful to
members of that community.”
[130]
Further that “The Old Flag is a symbol and reminder of the
inhumane policies adopted by the apartheid regime, … It
is
hurtful and harmful to members of the LGBTI community, and promotes
hatred against them when the Old Flag is flown.”
[131]
And finally, that: “the Old Flag … (is) a symbol of an
oppressive regime, its gratuitous display is hurtful and harmful,
and
promotes or propagates hatred against people of colour as well as
members of the LGTBTI community.” Afriforum and FAK
do not
oppose the effect of the gratuitous display on the LGBT+ community.
They oppose only the statement that such display constitutes
hate
speech.
[174]
Afriforum does not engage with this evidence, but concedes that
displaying the Old Flag “has the capacity to cause offence
and
emotional stress”. Whilst this is not a direct admission of the
testimony stated above, it is undoubtedly corroborative.
It
acknowledges also that: “Most South Africans recoil from the
Old Flag and openly denounce apartheid as a crime against

humanity.”
[132]
[175]
Although still opposing the order sought by the applicant, FAK does
acknowledge that in some instances ‘the display
of the Old Flag
… is
frowned
upon
and actively discouraged, also in the broader Afrikaner community.’
(Emphasis added)
[133]
[176]
If, as Afriforum acknowledges, ‘most South Africans’
recoil from the Old Flag and denounce apartheid as a crime
against
humanity, having regard to the context and the direct evidence before
Court, what then can be a reasonable clear intent
attributable to a
gratuitous display other than a clear intention to hurt, harm and
incite hatred and the most negative feelings
against  ‘most
South Africans’? And indeed, can there be any noble intention
when to the knowledge of those who
display it gratuitously, most
South Africans in whose face it is so displayed not only recoil but
also frown at such display?  Could
it be anything else other
than to provoke and hurt, harm and promote and propagate hatred by
stimulating those very negative
feelings and at the same time
damaging (harming) our feeling of oneness as South Africans?
Conclusion
on hate speech
[177]
On a conspectus of the case as a whole I am satisfied that displaying
the Old Flag gratuitously does much more than merely
cause offence
and emotional stress to black people. Indeed, it bears repeating that
the declarator sought is based expressly on
how the display affects
black people.
[134]
It
therefore makes no difference to my finding that some isolated
person(s) somewhere, who has no idea of or is indifferent to
the
profound suffering endured by black people under apartheid, may
experience it differently.  It demeans and dehumanises
people on
the basis of their race.  It impairs their human dignity.
[135]
The Old Flag is displayed gratuitously with the full knowledge of its
current and historical effects and therefore with clear intent
to
bring its effects upon fellow men and women.
[178]Those
who display the Old Flag choose deliberately not only to display the
apartheid discriminatory, divisive and oppressive
flag; they also
consciously and deliberately choose not to display the new democratic
all-uniting non-racial flag. They choose
an oppression symbol over a
liberation symbol. What then is their objective intention? They
intend to incite and awaken feelings
of white supremacy against black
people. They know or ought to know that other oppression prone white
people will be incited to
recall and long for days when white people
exercised oppressive power over black people - with the sanction of
an oppressive and
unjust legal system.  They wish to remind
black people of the oppression, humiliation, indignity and
dehumanisation that they
moved away from and do not wish to relive or
return to. They are therefore correctly described as demonstrating
‘total rejection
of tolerance, reconciliation and all values
underlying the Constitution’. They deliberately chose to reject
reconciliation
and embrace hatred and oppression because they incite
polarised feelings. As Mr Trengove for SAHRC puts it: “the
message
publicly conveyed by those who wave the apartheid flag is a
hurtful message. It is also a harmful message. It incites harm on the

racist grounds. And it propagates hatred, because it propagates the
superiority of the white race over the black race.”
[179]Their
action demonstrates a clear intention to be harmful, hurtful, and to
incite and propagate hateful feelings not only to
victims of
apartheid and its legacy, but also to our nascent non-racial
democracy.
[136]
There has
been no suggestion to the contrary. Not a single black person has
suggested feeling embraced by the display of the flag
and not a
single white person has suggested that the display is a demonstration
of love and tolerance towards black people. On
the very contrary the
evidence of those who oppose the complaint / application confirms
that the display of the flag has the potential
to cause harm and
distress. The very negative feeling that the Mandela Foundation,
SAHRC, Pride and the Department testify is caused
by the display.
Such evidence is an admission and not a denial. It is true that the
evidence of the supposed opposition goes only
as far as admitting
potential to be harmful or incite harm. However, such evidence
collaborates the direct evidence (of the NMF,
SAHRC, Pride and the
Department) that it is in fact hurtful, harmful and promotes and
propagates hatred towards black people.
[180]Afriforum
is aware of the negative effect of the display of the Old Flag. It
states as a fact that most people recoil from
the display of the
flag, but it (Afriforum) does not wish to support declaring its
gratuitous display as hate speech and thus limiting
it to instances
reserved by the proviso in section 12.  Why would they not
support the curbing of its hateful, hurtful, harmful
and inciteful
effect towards black people (their fellow men and women)? Instead it
chooses to pose as a champion of freedom of
expression and chose not
to engage with the hurt or reason behind the feelings of those who
recoil from it. Those who display the
flag gratuitously clearly
intend to cause that feeling.
[181]The
effect on Mr Hatang of news of the display of the Old Flag on that
‘Black Monday” in October 2017 was to bring
back two
distinct memories which came flashing back in his mind.
[182]
Firstly, he recalls being confronted with the hurtful outburst: “
Wat
soek julle hier kaffirs?”
He says this made him feel that
he was treated, and is still regarded by the displayers and those who
are likeminded, as “less
than human because of the colour of my
skin”.  His is clear evidence of being dehumanised, that
is, denied all human
dignity just because of the colour of his skin.
It is common uncontested knowledge that in the old South Africa and
under the Old
Flag black people were officially and unofficially
called “kaffirs” and subjected to other despicable
treatment all
because of the colour of their skin. No one should ever
be made to relive that feeling without the law coming to their
rescue.
[183]There
could be no other decent intentions behind waving the Old Flag
gratuitously other than to cause a recall of painful memories
of
being called the “k” word and being subjected to related
treatments under the apartheid rule. Despite being asked
by this
Court, neither Afriforum nor FAK could give me a purpose for such
display, worthy of legal protection, other than the instances

mentioned in the section 12 proviso. No one gratuitously waves the
apartheid flag in front of black people without intending to
cause
harm, hurt or causing hatefulness. It is like calling a black person
the “k” word outside the purpose protected
by the proviso
and then alleging that there may have been a good intention worthy of
protection. Fact of the matter is when that
is done the hurt is
immediate, deep and long lasting. That is the impact of memories the
inhuman apartheid rule brought back flashing
into one’s mind.
[184]The
second memory that came to Mr Hatang is that of white children
singing “
Daar
kom die bobejaan
”
on the advance of his grandmother. Only in apartheid South Africa!
One’s grandmother being called a baboon! Mr Hatang
immediately
recalled that his grandmother’s feeling was that of trauma and
anguish on the unavoidable advance to pass the
singing white children
together with helplessness against her tormentors. To use the
expression of Afriforum, Mrs Hatang ‘recoiled’
helplessly
at the experience. Because the Old Flag represented apartheid South
Africa, it is not far-fetched for black people to
relive the
experience each time the Old Flag is waved gratuitously. It is
unthinkable to imagine, never mind accept, that those
who wave the
flag gratuitously do so with any noble intentions knowing the
association with apartheid in the memory of black people.
Nothing but
apartheid memories incited the hurt in the dignity of Mrs Hatang. It
is ludicrous and absurd to think that she and
her children will not
recall the horror of apartheid at the sight of the gratuitous display
of the Old Flag.  It is almost
suggesting to black people that
apartheid was good for them as if they cannot decide or depict for
themselves what is hurtful to
them. That would be nothing short of an
insult to black people.  I have no doubt that most South
Africans, across racial lines,
who have truly moved away from the
indignity of apartheid, do not wish to be taken back to it. Not even
emotionally. This is their
collective “never again”
resolve of 1994. South Africa cannot countenance a legal situation
which is hurtful or harmful
to a section of its population because
the Constitution obliges her to ensure that “every citizen is
equally protected by
the law”.
[137]
[185]
One of the hurtful effects of racist hate speech is that “
memories
of humiliation, suffering and indignity endured by black people for
so long … come flooding back”
.
[138]
For black people to see the Old Flag gratuitously displayed is thus
‘hurtful’ in a sense which is qualitatively not
different
to expressions that are, as a matter of law, already accepted as
constituting hate speech.
[139]
To suggest in the face of such hurt, as the first respondent does,
that black people should either tolerate or use incidences of
such
displays ‘as an opportunity to reflect on how far we have come
as a nation’ is insensitive in the extreme, destructive
of
human dignity and equality and constitutionally untenable. One should
be slow to tell victims how they should feel about being
hurt and how
they should experience their pain. Especially for those who do not
share their experience of the pain. It is wholly
inappropriate and
impermissible for anyone to seek to tell the victim how he / she
should feel or not feel about their pain. It
has a ring of talking
down upon victims, minimising their hurt and being downright
paternalistic. This is more so as, in this case,
the raw feelings of
victims of apartheid are rooted in decades of being discriminated
against on the basis of colour.  As
Mr Hatang, his grandmother,
Mrs Hatang, and their predecessors and many black people have
collectively lived under colonial and
apartheid rule for over 350
years, they and the black people they represent have endured and
suffered under that rule all their
lives.  In the words of
Mogoeng CJ in
Tshwane
v Afriforum:
[140]
“
It is
impermissible to ever adopt an attitude that seems to suggest that
some of our people can afford to endure the pain and torture
induced
and symbolised by instruments of the colonial and apartheid legacy,
probably because they have endured them long enough
to find them
tolerable, if not somewhat acceptable …”
[186]
The question of display of the Old Flag in private spaces was argued
briefly. Despite years of apartheid rule, the lives of
various races
in South Africa have never been compartmentalised. That was the
impracticality that apartheid rule sought to and
never achieved.
There is therefore hardly any space which is private to the one race
to the exclusion of the other. Especially
in modern day South Africa.
Thus, displaying the Old Flag in private spaces like homes and
schools is equally unacceptably offensive
and ‘hurtful’,
as black people are invariably employed and exposed in other ways to
such spaces. The display in such
spaces thus also constitutes hate
speech under the Equality Act, as it ostensibly demonstrates an
intention to be ‘harmful
or to incite harm’ and ‘promote
and propagates hatred’ (section 10 (1) (a) – (c)), by
propagating to others,
including children, that apartheid and how it
treated black people was acceptable. Furthermore, such displays, as
the Mandela Foundation
explained, “make young people believe
that it is acceptable to harbour racist views and then to manifest
them publicly.”
[141]
[187]Accordingly,
any gratuitous display of the Old Flag (that is, a display beyond the
protection of the proviso in section 12
of the Equality Act), besides
being racist and discriminatory, demonstrates a clear intention:
(a) to be hurtful;
(b) to be harmful
and incites harm; and
(c) it promotes and
propagates hatred
against
black people in contravention of section 10 (1) of the Equality Act.
It constitutes hate speech. Such display is furthermore
divisive,
retrogressive and destructive of our nascent non-racial democracy,
the constitutional values of human dignity and equality
and the
building of a society united in its diversity. It is an affront to
the spirit and values of
ubuntu / botho
, which has become a
mark of civilised interaction in post-apartheid South Africa.
Unconstitutionality
(SAHRC
)
[188]The SAHRC would
have sought a declaration that section 10 (1) of the Equality Act is
unconstitutional if it were to be construed
restrictively as
excluding non-verbal expressions. I would have agreed. However, in
view of my conclusion regarding the correct
interpretation of the
hate speech provisions of section 10(1), it is not necessary for me
to entertain that relief.
Harassment
[189]The
Mandela Foundation also seeks an order that the gratuitous display of
the Old Flag constitutes harassment in terms of section
11 of the
Equality Act against black people.
[190]
Section 11 provides that:
No person may subject any person to
harassment. ‘
Harassment’ is defined in sec 1 (1) to
include: ‘…
unwanted conduct which is persistent or
serious and demeans, humiliates or creates a hostile or intimidating
environment …
related to … a person’s membership
or presumed membership of a group identified by one or more of the
prohibited grounds
…’
[191]The
Mandela Foundation testified that any gratuitous display of the Old
Flag “seriously demeans, humiliates and creates
a hostile and
intimidating environment for victims of apartheid and its legacy,
particularly black people.”
[142]
Pride also testified that the gratuitous display of the Old Flag has
the same effect “towards members of the LGBT+ community,
who
were also victims of apartheid and its legacy.”
[143]
[192]Afriforum
does not deny these allegations but contends that for conduct to
constitute harassment “it must amount to torment
that is
persistent and repetitive.”
[144]
There is no such requirement in the Equality Act and this Court was
not referred to any other authority for the contention.  Accordingly,

there is no basis for denying the order sought by the applicants.
Furthermore, displaying the Old Flag in the face of most South

Africans knowing that they recoil from it can only constitute
harassment. It goes beyond hate speech.
Unfair
Discrimination
[193]
The Mandela Foundation finally also seeks an order that the
gratuitous display of the Old Flag constitutes unfair discrimination

against black people, as victims of apartheid.
[194]
Section 7 of the Equality Act provides amongst others that:
“…
no
person may unfairly discriminate against any person on the ground of
race, including –
(a)
the dissemination of any … idea, which propounds the
racial superiority or inferiority of any person ...
(b)
the engagement in any activity which is intended to promote,
or has the effect of promoting, exclusivity based on race …”
[195]The
Mandela Foundation testified that any gratuitous display of the Old
Flag “propounds racial superiority and promotes
racial
exclusivity”. Whilst not disputing this, Afriforum contends
that “the intention of a person displaying the Old
Flag would
need to be assessed on a case by case to determine whether it
constitute unfair discrimination.”
[145]
Again, there is no such requirement in the Equality Act and none was
referred to me. I refer once more to my earlier discussion
with
regard to hate speech to the extent applicable. There is no basis for
denying the order sought.
Expression
of Freedom under section 16 of the Constitution as a defence
[196]
As the first respondent contends in its opposition of the relief in
its entirety, amongst others, that displaying the Old
Flag is
constitutionally protected expression under section 16(1) of the
Constitution of the Republic of South Africa, 1996,
[146]
it is necessary to deal briefly with that defence.
[197]Section
16 provides in its entirety as follows:
“
16.
Freedom of Expression
(l)
Everyone has the right to freedom of expression, which includes -
(a) freedom of
the press and other media;
(b) freedom to
receive or impart information or ideas;
(c) freedom of
artistic creativity;
(d) academic
freedom and freedom of scientific research.
(2)
The right in subsection (1) does not extend to –
(a) propaganda
for war;
(b) incitement of
imminent violence; or
(c) advocacy of
hatred that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm.”
[198]There
are clearly two parts to section 16. Section 16(1) protects freedom
of expression and specifies categories of the freedoms
that are
included under its protection, like freedom of the press and media
etc. Section 16(2), however, excludes certain specified
categories of
speech from the protection of section 16(1). The excluded
expressions can therefore simply not claim the protection
of section
16 (1). Hate speech is an expression which is specifically excluded
from protection by section 16(2)(c).  Section
16(2)(c) does so
by excluding any “advocacy of hatred that is based on race,
ethnicity, gender or religion, and that constitutes
incitement to
cause harm.” As the Constitutional Court explained in
Islamic
Unity Convention
[147]
,
“
What
is not protected by the Constitution is expression or speech that
amounts to 'advocacy of hatred' that is based on one or other
of the
listed grounds, namely race, ethnicity, gender or religion and which
amounts to 'incitement to cause harm
.”
Because this judgment finds that the gratuitous display of the Old
Flag amounts to hate speech, that is, advocacy for hatred
within the
meaning of section 16(2), it means such display enjoys no protection
as free speech under the Constitution.
[199]The
prohibition in section 10 of the Equality Act is clearly intended
inter alia to prohibit speech of the kind excluded from
protection by
section 16(2)(c).  Hate speech is excluded except to the extent
that it may fall under the section 12 proviso.
Gratuitous display of
the Old Flag is display that does not fall under the proviso. The
Mandela Foundation was careful to target
only the displays of the Old
Flag which are not protected by section 12. Their complaint and
application can therefore not be met
by a claim that the display they
target is protected under freedom of expression in the Constitution
(in terms of section 16).
The contention of Afriforum that seeks to
rely on freedom of expression is therefore illogical and misplaced
and stands to be dismissed.
[200]
Accordingly, the gratuitous display of the Old Flag constitutes
prohibited hate speech, unfair discrimination and harassment.
Relief
sought is not a ban
[201]Contrary
to the protestations of Afriforum, the relief sought by the
applicants in this matter is not a banning order against
the Old
Flag. The Mandela Foundation seeks only an order that will declare to
all South Africans (including potential offenders
and complainants)
that the display of the impugned flag must be confined to genuine
artistic, academic or journalistic expression
in the public interest
(i.e., it must qualify for the proviso in section 12 of the Equality
Act). Any display beyond that may be
brought before the Equality
Court for the displayer to prove that the display was defensible
(under the proviso) or to prevail
on the Court to make an appropriate
remedy.
[202]That
amount of legal certainty is required first to provide certainty in
circumstances where the display of the Old Flag during
the October
2017 so-called Black Monday demonstrations caused serious violations
of fundamental human rights; the ensuing debate
was fairly widely
covered in the country and remained inconclusive in certain respects
leaving the door wide open for future repeat
of the violation of
fundamental human rights with potential polarisation of society along
racial lines. Furthermore, there are
prospects that in the light of
certainty even parties that are currently opposing the application
shall be strengthened in promoting
the avoidance of hurtful displays
of the Old Flag. Afriforum, which no doubt believed in the
correctness of its submissions, has
informed the Court that it is a
reluctant opponent in these proceedings; that it has no love for the
Old Flag and what it represents;
that it is aware that most South
Africans recoil from the Old Flag; it also says that it is committed
to taking active steps to
combat genuine hate speech. Now that the
judgment has set out in some detail the extremely dehumanising and
hurtful violations
that flow from the gratuitous display even in
current society, one expects Afriforum to live up to its own words,
and thus help
to build an inclusive South Africanness of all citizens
united in their diversity based on mutual respect and genuine
acknowledgment
of equal dignity, despite the superficial differences
in the skin colour.
[203]Even
FAK did acknowledge that “The display of the Old Flag is
frowned upon”. What was missing from its response
and
submissions was an attempt to view gratuitous (almost purposeless)
displays from the perspective of the victims of apartheid
oppression,
whose hurt is sought to be protected. What FAK too may appreciate is
that the order sought and granted is not a total
“ban”,
if one sees as a ban – which it is not. It is rather a
prohibition which is carefully guided – falling
within the
ambit of the proviso in section 12 of the Equality Act. FAK made an
uninvited commitment in paragraph 26 of its affidavit
that: “Whatever
the outcome, the FAK is willing and able to work together with any
organisation or individual genuinely seeking
to foster a social
relationship of mutual respect for the cultural-historic identity of
all cultural groups in South Africa.”
That seems to be the
statement of an organisation that is prepared to turn a new leaf and
to engage about other cultures as well
in the spirit of inclusivity
of diversity. This then is its time. South Africa will move faster
towards its vision of one nation
united in its diversity.
[204]
The parties were agreed in their submissions that, whatever the
outcome of this case, none of them seeks costs against the
others.
Order
[205]In
the result, I make following order:
(1) In terms of
section 21(1) of the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 (“the Equality
Act”), it is
determined that the display of the old national flag of South Africa,
introduced from 31 May 1928, and
used throughout apartheid until
it was abolished on 27 April 1994 (“the Old Flag”), at
the ‘Black Monday’
demonstrations on 30 October 2017
constituted:
a. hate speech, in
terms of section 10 (1) of the Equality Act;
b. unfair
discrimination on the basis of race in terms of section 7 of the
Equality Act;
c.
harassment in terms of section 11 of the Equality Act.
(2) In terms of
section 21 (2) of the Equality Act, it is declared that subject to
the proviso in section 12 of the Equality Act,
any display of the Old
Flag constitutes:
a.
hate speech in terms of section 10 (1) of the Equality Act;
b.
unfair discrimination on the basis of race in terms of section 7 of
the Equality Act;
c. harassment in
terms of section 11 of the Equality Act.
(3)  There is
no order as to costs
-------------------------------------------
P
M MOJAPELO
DEPUTY
JUDGE PRESIDENT
HIGH
COURT OF SOUTH AFRICA
GAUTENG,
JOHANNESBURG
Counsel
for  1
st
Applicant: Tembeka Ngcukaitobi
Ayanda
Msimang
Ben
Winks
Instructed
by: Rupert Candy Attorneys Inc
Counsel
for 2
nd
Applicant: Wim Trengove SC
Feizel
Ismail
Itumeleng
Phalane
Instructed
by: Webber Wentzel
Counsel
for 1
st
Respondent: Mark Oppenheimer
Instructed
by: Hurter Spies Inc
Counsel
for 2
nd
and 3
rd
Respondents: Sha’ista
Kazee
Instructed
by: The State Attorney
Counsel
for 1
st
Amicus Curiae: Isabel Goodman
Teboho
Mosikili
Instructed
by: Baker & McKenzie Inc
Counsel
for 2
nd
Amicus Curiae: Ian Currie
Instructed
by: Froneman, Roux & Streicher
Date
heard: 29 and 30 April 2019
Judgment:
21 August 2019
[1]
Act 200 of 1993.
[2]
Constitution of the Republic of South Africa, 1996.
[3]
The term black is used in the contextual sense to include everybody
who was not classified white and who was denied the right
to vote.
Not even the 1983 “Tricameral Parliament” was inclusive
as it still sought to define indigenous Africans
as non-South
African. Many argue that it in fact sought to further entrench
racial divisions and was thus destined to fail, as
it did.
[4]
Mandela Foundation’s affidavit, p 16-17 paras 23 – 25
(vol 1) (Rec 16 – 17:23-25).
[5]
Afriforum’s Answering affidavit to the Mandela Foundation, p
97 para 54 (vol 1) (Rec 97:54).
[6]
Afriforum’s Answering Affidavit p 87 para 29 (Rec 87:29).
[7]
SAHRC’s notice of motion p 218 -219 (Rec 218 – 219).
[8]
Department’s affidavit, p 264 para 4 (vol 3) (Rec 264:4).
[9]
Department’s affidavit, p271 paras 23 – 25 (vol 3) (Rec
271:23-25).
[10]
Pride’s founding affidavit, p 111 para 11(a) (vol 2) (Rec
111:11 (a).
[11]
FAK’s affidavit, p 211 paras 23 – 25 (vol 3) (Rec
211:23-25).
[12]
The mistake was understandably retained by all other parties who
responded to its application.
[13]
See
De
Lange v Methodist Church
2016 (2) SA 1
(CC) at para 53] to [59].
[14]
Record 127.
[15]
Mandela Foundation (Founding Affidavit – Rec 9:4)
[16]
afriforum.co.za  (as quoted by the Mandela Foundation (Founding
Affidavit – Rec 10:6; and not denied by Afriforum).
[17]
afriforum.co.za, as per Founding Affidavit of the Mandela Foundation
10:5 and 6
[18]
Answering Affidavit of Afriforum Rec 79:4).
[19]
Section 184 (1) (a) – (c).
[20]
Rec 264:1-4.
[21]
Rec 109:4 – 110:9.
[22]
Rec 202:1 – 203:6.
[23]
Rec 79:6.
[24]
Afriforum answering affidavit vol 1 pp 99 – 100 para 62 –
64.
[25]
Rec. 99:61.
[26]
See, for example,
Daniels
v Scribante and Another
[2017] ZACC 13, 2017 (4) SA 341 (CC).
[27]
Dawood
and Another v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC) par [35].
[28]
Rahube
v Rahube and Others
[2018] ZACC 42
;
2019 (1) BCLR 125
(CC) para [22].
[29]
Brink
v Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC) para [40].
[30]
South
African Transport and Allied Workers Union and Another v Garvas and
Others
[2012] ZACC 13
; 2013 (1)SA 83 (CC) para 63.
[31]
FAK Rec 205:9 – 208; SAHRC Rec 229:23-24 and the Department
Rec 272:26.
[32]
Quoted in Harry Saker, The South African Flag Controversy, 1925 –
1928 (PhD dissertation, University of Cape Town, 1977),
pp 64 –
65.
[33]
Hansard, Debates of the House of Assembly, 20 May 1926.
[34]
Id.
[35]
Hansard, Debates of the House of Assembly, 26 May 1927.
[36]
Quoted in Harry Saker, The South African Flag Controversy, 1925 –
1928 (PhD dissertation, University of Cape Town, 1977)
p 152.
[37]
Republic of South Africa Constitution Act 1961 para 5.
[38]
Id, para 34 and para 46.
[39]
Id, para 111.
[40]
Republic of South Africa Constitution Act, 1983 para 4.
[41]
Id, para 52.
[42]
Id, para 100(1)(ix), read with the preamble.
[43]
Id, para 92.
[44]
In
S
v Makwanyanea
[1995] ZACC 3
;
1995 (3) SA 391
(CC) at p 488 A-D para [262].
[45]
Rec 207:18.
[46]
Foundation founding affidavit vol 1 p 10 para 8. This description
echoes the proviso to section 10 (1), which is found in section
12
of the Equality Act.
[47]
Searles
Industrials (Pty) Ltd v International Power Marketing (Pty) Ltd
1982 (4) SA 123
(T) 127D;
Orange
Brand Services Ltd v Account Works Software (Pty) Ltd
[2013] ZASCA 158
para [16].
[48]
AfriForum
and Another v Malema and Others
2011 (6) SA 240
(EqC) paar [41].
[49]
Id para [99] – [100].
[50]
Mandela Foundation’s founding affidavit para 14 (vol 1 p 12).
[51]
Mandela Foundation’s affidavit, para 18 (vol 1 p 14).
[52]
Mandela Foundation’s affidavit para 22 (vol 1 p 16).
[53]
Pride’s expert affidavit para 29 (vol 2 p 146).
[54]
SAHRC’s affidavit, para 24 (vol 3 pp 229 – 230).
[55]
SAHRC’s affidavit para 27 (vol 3 p 230).
[56]
Department’s affidavit para 31 (vol 3 pp 273 – 274).
[57]
Department’s affidavit para 31 (vol 3 p 274).
[58]
Department’s affidavit para 31 (vol 3 p 274).
[59]
Department’s affidavit para 32 (vol 3 p 274).
[60]
229:23.
[61]
Rec 229:24.
[62]
Rec 229:25.
[63]
Afriforum’s answering affidavit to the Mandela Foundation,
para 60 (vol 1 p 98).
[64]
Rec 98:58.
[65]
FAK’s affidavit, para 8 (vol 3 pp 204 – 205).
[66]
FAK’s affidavit, para 11 (vol 3 p 206).
[67]
FAK’s affidavit, para 13 (vol 3 p 206).
[68]
FAK’s affidavit para 21.3 (vol 3 p 209). The writer is not
sure that its historic value as in 1927/28 can be countered.
The
dispute revolves around its exclusion of black people from that
unity at the time and how it is objectively perceived today.
[69]
FAK’s affidavit para 18 (vol 3 p 207).
[70]
City
of Tshwane Metropolitan Municipality v AFriforum and Another
[2016] ZACC 19
;
2016 (6) SA 279
(CC) para [122].
[71]
Id para 169 and para 175.
[72]
Id para 11.
[73]
Afriforum’s answering affidavit to the Mandela Foundation para
58 (vol 1 p 98).
[74]
S
v Makwanayane
supra
(footnote
44 above) para [262].
[75]
FAK affidavit vol 3 pp 204 – 205 para 8 – 11.
[76]
FAK affidavit vol 3 p 206 para 11.
[77]
Minister answering affidavit vol 3 p 272 par 27.
[78]
GA Resolution 2202 A (XXI) of 16 December 1966.
[79]
SC Resolution 556 (1984) of 23 October 1984.
[80]
United Nations Audio-Visual Library of International Law, available
at
http://legal.un.org/avl/ha/cspca/cspca.html
(accessed 21 February 2019).
[81]
Customary international law consists of rules of law derived from
the consistent conduct of States acting out of the belief that
the
law required them to act that way and includes:
a) The widespread
repetition by States of similar international acts over time (State
practice);
b) The requirement
that the acts must occur out of a sense of obligation (opinio
juris); and
c) That the acts
are taken by a significant number of States and not rejected by a
significant number of States.
[82]
Act
27 of 2002.
[83]
SAHRC joinder application para 23.7.
[84]
Department answering affidavit vol 3 p 273 para 31.
[85]
Rec 230:27.
[86]
A
dictionary meaning of hate speech is hard to come by in old printed
versions of dictionaries. However, the internet / website
versions
of some dictionaries do shed some light, as I shall set out.
[87]
https://en.oxforddictionaries.com
(accessed on 16 October 2018)
[88]
https://www.merriam-webster.com/dictionary/hate%20speech
.
(accessed on 27 June 2019)
[89]
https://dictionary.cambridge.org/dictionary/english/hate-speech
.
(accessed on 16 October 2018 and 27 June 2019)
[90]
https://www.collinsdictionary.com/dictionary/english/hate-speech
(accessed
on 27June 2019)
[91]
Section 1(1) of the Equality Act defines prohibited grounds as
follows:
“ ‘
prohibited
grounds’
are:
(a)
race,
gender, sex, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion,

conscience, belief, culture, language and birth; or
(b)
any
other ground where discrimination based on that other ground –
i.
causes or perpetuates systemic disadvantage;
ii.
undermines human dignity; or
iii.
adversely affects the enjoyment of a person’s rights
and freedoms in a serios manner that is comparable to discrimination

on a ground in paragraph (a).”
[92]
2001 (1) SA 545 (CC).
[93]
Hyundai
at para [22].
[94]
1998 (3) SA 785 (CC).
[95]
Hyundai
at para [23];
De
Lange
at para [85].
[96]
Hyundai
at para [23].
[97]
2002 (2) SA 1
(CC) at para 23.
[98]
National
Coalition
at para 24.
[99]
The principle was stated succinctly by Ackerman J in
National
Director of Public Prosecutions and Another v Mohamed NO and Others
2003 (4) SA 1
(CC) at para 35 where it was held as follows: “
A
settled principle of constitutional construction recognises that a
statutory provision may be capable of more than one reasonable

construction. If the one construction leads to a constitutional
invalidity but the other not, the latter construction, being
in
conformity with the Constitution, must be preferred to the former,
provided always that such construction is reasonable and
not
strained.”
See
also and
National
Union of Metalworkers of South Africa and Others v Bader Bop (Pty)
Ltd and Another
[2002] ZACC 30
;
2003 (3) SA 513
(CC) at para 37;
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
2004 (4) SA 290
(CC);
Bernstein
and Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC) (in considering the interim Constitution). In
his dissenting judgment in the case of
Centre
for Child Law v Minister of Justice and Constitutional Development
and Others
2009 (6) SA 632
(CC) at par 108, confirming the principle, Yacoob J
stated that:  “
There
is a long line of judgments of this court in which we have
repeatedly emphasised the rule, by now axiomatic, that where
a
statutory provision is reasonably capable of a construction that
would bring it in line with the Constitution, it is that
construction which must be preferred provided that it is not
strained.”
[100]
Section 39(1)(b) provides that “[w]hen interpreting the Bill
of Rights, a court, tribunal or forum - …
must
consider international law
.”.
[101]
2011 (3) SA 247
(CC) at para 97.
[102]
2016 (3) SA 317
(SCA) at para 62.
[103]
2012 (4) SA 593 (SCA).
[104]
[1995] ZACC 3
;
1995 (3) SA 391
(CC) at para 39.
[105]
2017 (1) SA 613
(CC) at para 46.
[106]
2012 (2) SA 50 (CC).
[107]
‘Prohibited grounds’, as pointed out in para [97] and
footnote 90 above, fairly wide. It is defined in section 1(1)
of the
Equality Act to mean “any other ground where discrimination
based on that other ground causes or perpetuates systemic

disadvantage [or] undermines human dignity”.
[108]
Rec 87:29; See also para [5] in the introduction above.
[109]
See also para 133 above.
[110]
2002 (4) 294 (CC) at para 33.
[111]
Section 2(b)(iv) of the Equality Act.
[112]
Albutt
v Centre for the Study of Violence and Reconciliation and Others
2010 (3) SA 293
(CC) at para 49 – 50.
[113]
Dawood
and another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC) at para 35.
[114]
Minister
of Health & Another v New Clicks South Africa (Pty) Ltd &
Others (Treatment Action Campaign & Another as
Amici Curiae)
[2005] ZACC 14
;
2006 (2) SA 311
(CC) at para
[232]
where the CC
adopted the interpretive rule laid down century ago in
Venter
v R
1907
TS 910
at 915.
[115]
The First Amendment to the Constitution of the United States
provides as follows:
“
Congress
shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof;
or abridging the freedom
of speech
, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of
grievances.”
(Emphasis added).
[116]
Spence
v Washington
418 U.S. 405
, 409 – 411 (1974) at 409. Spence had attached a
peace sign to the national flag and displayed it out of his
apartment window
as a form of protest against the invasion of
Cambodia and the killings at Kent State University, events which
occurred a few
days prior to Spence’s arrest. This conduct was
held to fall within the scope of the First Amendment.
[117]
Spence
410 – 411.
[118]
Texas
v Johnson
491 US 397
(1989) at 406.
[119]
Johnson
at 405.
[120]
[1943] USSC 130
;
319 US 624
(1943).
[121]
At 632.
[122]
In
Cool
Ideas 1186 CC v Hubbard and Another
2014 (4) SA 474
(CC) at par 28 the Constitutional Court held as
follows:
“
The
avoidance of absurdity, which is considered a ‘fundamental
tenet of statutory interpretation’ must be guided by
the
‘rider’ –
(a) that statutory
provisions should always be interpreted purposively;
(b) the relevant
statutory provision must be properly contextualised; and
(c) all statutes
must be construed consistently with the Constitution, that is, where
reasonably possible, legislative provisions
ought to be interpreted
to preserve their constitutional validity. This proviso to the
general principle is closely related to
the purposive approach
referred to in (a).”
[123]
Rec 87:30.
[124]
See
Afriforum
v Malema
[2011] ZAEQC 2;
2011 (6) SA 240
(EqC), para 109;
Sonke
Gender Justice Network v Malema
[2010] ZAEQC 2;
2010 (7) BCLR 729
(EqC), para 14;
South
African Human Rights Commission v Qwelane
[2017] ZAGPJHC 218;
2018 (2) SA 149
(GJ), para 50;
Smith
v Mgoqi and Another
[2007] ZAEQC 2.
[125]
Rec 13:15.
[126]
Rec 230:28.
[127]
Rec 230:28.
[128]
Rec 230:28.
[129]
Rec 272:27.
[130]
Rec 111: 10 (c).
[131]
Rec 146:28.
[132]
Rec 98:58.
[133]
Rec 209:21.3.
[134]
Rec 16-17:23.
[135]
Human dignity means that an individual or group feels self-respect
and self-worth. It is concerned with the psychological integrity
and
empowerment. Human dignity is harmed when individuals and groups are
marginalised or devalued. The Canadian Supreme Court
in
Law
v Canada
[1999] 170 DLR 4
th
1 (SCC).
[136]
Rec 17:23.
[137]
Preamble to the Constitution; And again, more directly in terms of
sec 9 of the Bill of Rights “Everyone is equal before
the law
and has the right to equal protection of the law.”
[138]
African
National Congress v Sparrow
[2016] ZAEQC 1.
[139]
Thembani v Swanepoel [2016] ZAECMHC 37;
2017 (3) SA 70
(ECM); Kente
v Van Deventer, unreported Case No EC 9/13, Cape Town Magistrates’
Court (24 October 2014); Mdladla v Smith
[2006] ZAEQC 3; Khoza v
Saeed and Another (2006] ZAEQC 2; Herselman v Geleba (231/2009)
[2011] ZAEQC 1; Strydom v Chiloane [2007]
ZAGPHC 234; 2008 (2) SA
247 (T).
[140]
City
of Tshwane Metropolitan Municipality v Afriforum and Another
[2016] ZACC 19
;
2016 (6) SA 279
(CC) para 15 – 16.
[141]
Rec 15:19.d.
[142]
Rec 17:23.
[143]
Rec 111:10 (c) and 146-147:31.
[144]
Rec 89:56.
[145]
Rec 97:53.
[146]
Afriforum’s answering affidavit to the Mandela Foundation,
para 54 (vol 1 p 97).
[147]
See para [137], footnote 103 above