The court battle about whether displaying the apartheid flag was hate speech was not a “difference of opinion,” advocate Tembeka Ngcukaitobi said in court on Tuesday. It was about asserting the dignity of black people.
Ngcukaitobi was representing the Nelson Mandela Foundation, which is asking the Johannesburg high court to declare that displaying the apartheid flag amounts to hate speech under the Promotion of Equality and Prevention of Unfair Discrimination Act.
The Nelson Mandela Foundation took the case to court because of a public debate between the foundation and Afriforum, after reports that the old flag was displayed at a ‘Black Monday’ demonstration in November 2017.
The Black Monday campaign was billed as a march against farm murders.
Ngcukaitobi was replying to arguments that had been made on Monday afternoon and Tuesday morning by Afriforum and the Federasie van Afrikaanse Kultuurvereniginge (FAK) that, while displaying the flag may be hurtful, it was not hate speech.
On Tuesday morning, Iain Currie for FAK acknowledged that the unity the flag symbolised when it was adopted was limited to unity between white people to the exclusion of black people. “Yes, you cannot ever wash that stain from it,” he said in response to a question from Deputy Judge President Phineas Mojapelo.
But he said that the “marketplace of ideas” was sufficient to push back against that. He said that freedom of expression required the tolerance of even speech that is “distasteful, inflammatory and downright offensive”.
The marketplace of ideas could be trusted to deal appropriately with such speech, it did not merit state intervention, he said. He added that it could be seen on social media how quickly racism was dealt with.
Earlier Afriforum’s Mark Oppenheimer had said that the Constitution’s free expression clause protected all speech unless it was specifically prohibited. To be specifically prohibited the speech must not just hurtful, it must also amount to the propagation of hatred and incitement of harm. “Once we start banning things just because they are hurtful, we are opening up the floodgates,” he said.
But Ngcukaitobi said the Constitution’s right to freedom of expression did not trump the right to human dignity and the right to equality, which were also foundational values of the Constitution.
Just prior to Ngcukaitobi, his junior, Ben Winks, had argued Afriforum and FAK had not challenged the evidence that displaying the apartheid flag “demeans, degrades and dehumanises” black people.
Ngcukaitobi said the foundation had come to court “to assert black people’s dignity. We’ve come to assert black people’s right to equality. We’ve come to assert black people’s right to freedom, all of which were denied under the apartheid state; and all of which the apartheid flag is a salient reminder”.
“Dehumanising speech is not about opinion, it is about the denial of humanity,” he said.
By asking the court for a declaratory order, what the foundation was asking the court “to do is an assertion, an affirmation, that black people count,” he said.
Judgment was reserved.