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Flag case will set precedent

ANALYSIS

The Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act) has been widely criticised as having been badly drafted. Courts have struggled with interpreting it, and their judgments have been criticised — more so than usual — by academics and commentators. There is also a question mark over the constitutionality of section 10 — its hate speech clause — because it prohibits so much more than the Constitution does under section 16.

This week, debate raged over the application by the Nelson Mandela Foundation to the Johannesburg high court’s equality court, askingthat the display of the old South African flag of 1928 be declared hate speech under the Act.

Conservative Afrikaner rights organisation AfriForum and the Federasie van Afrikaanse Kultuurvereniginge (FAK) opposed the application — not because of any particular love of the flag, said Afriforum — but in support of the right to freedom of expression.

Although the Constitution strongly protects the right to freedom of expression, it expressly excludes from its protection the “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

The Equality Act takes it further. Section 10(1) says: “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 demonstrated to show a clear intention to be hurtful; be harmful or to incite harm; promote or propagate hatred.”

Deputy Judge President Phineas Mojapelo — who reserved judgment on Tuesday — will have to grapple with some of the difficulties of section 10, but not all.

Unlike in other hate speech cases, the meaning of the apartheid flag — the message sent when it is displayed — was not seriously disputed. The foundation’s counsel, Tembeka Ngcukaitobi, said the meaning when the flag was adopted was very clear: it was to symbolise a state founded on white supremacy, where British and Boer were united,and black people were to be systematically excluded.

The meaning today was also clear, said Wim Trengove SC, counsel for the South African Human Rights Commission (SAHRC). The flag ended its life as a symbol of the apartheid state. When people wave it today, “what they clearly mean to convey, to everybody around them, is that they … yearn for apartheid South Africa; they celebrate apartheid South Africa”.

They celebrate“a state in which the supremacy of white people was institutionally entrenched [and that] humiliated black people in every aspect of life”.

Mojapelo will also not have to decide whether section 10 is constitutional, because no one raised a challenge to its constitutionality. 

But he will have to decide on how to interpret the use of the phrase “words” in section 10, which will be precedent-setting. Displaying a flag is not words, but the Act’s terms are to “publish, propagate, advocate or communicate words”.

The Nelson Mandela Foundation and the SAHRC both argued that “words” should not be interpreted literally, but should include the publication of “all ideas, by words, conduct, or symbols”, said Trengove.

To interpret it more narrowly would result in absurdities, said Ngcukaitobi. For example, calling a black person a baboon would be hate speech, but pasting a picture of a baboon face on to the photo of a black person would not.

Most importantly, to interpret section 10 narrowly would render it unconstitutional — because it would fail to give effect to the rights of equality and human dignity. 

But counsel for AfriForum, Mark Oppenheimer, said a broad reading would “radically distort the ordinary meaning of the term and would result in an unduly strained interpretation”.

Mojapelo will also likely decide whether, to amount to hate speech, the expression at issue must be hurtful and incite harm and propagate hatred. Or, whether the speech must be hurtful or incite harm or propagate hatred. The Act is not clear on this, but it is hugely important in determining what falls within the crosshairs of what actually constitutes hate speech.

A previous judgment of the high court said that, to bring section 10 more in line with the Constitution, it should be read conjunctively.

AfriForum and FAK supported this approach, saying expression that was only hurtful was not hate speech and could be countered in the “marketplace of ideas”. It was not the business of the state to intervene unless the speech was also advocating hatred and amounted to incitement.

But Ngcukaitobi said this misinterpreted the jurisprudence of the Constitutional Court, which recognised that the legislature could supplement the Constitution and go further in what it prohibits — as long as it was justifiable in a democratic society based on equality and freedom and human dignity.

Human dignity was a foundational value of the Constitution, Ngcukaitobisaid. “Dehumanising speech is not about opinion; it is about the denial of humanity,” he said.

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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