THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 371/2020
In the matter between:
AFRIFORUM NPC                                                                          APPELLANT
and
NELSON MANDELA FOUNDATION TRUST            FIRST RESPONDENT
MINISTER OF JUSTICE AND                                   SECOND RESPONDENT
CORRECTIONAL SERVICES
DEPARTMENT OF JUSTICE                                          THIRD RESPONDENT
AND CORRECTIONAL SERVICES
SOUTH AFRICAN HUMAN RIGHTS                       FOURTH RESPONDENT
COMMISSION
JOHANNESBURG PRIDE NPC                                FIRST AMICUS CURIAE
FEDERASIE VAN AFRIKAANSE                       SECOND AMICUS CURIAE
KULTUURVERENIGINGE NPC

Neutral citation: Afriforum NPC v Nelson Mandela Foundation Trust
and Others (Case no 371/2020) [2023] ZASCA 58 (21 April
2023)
Coram:
MAYA P and SCHIPPERS, PLASKET and MABINDLA-
BOQWANA JJA and SAVAGE AJA
Heard:

11 May 2022
Delivered:
21 April 2023

Summary:
Constitutional Law – section 16(1) of the Constitution – freedom
of expression – whether right infringed by prohibition of gratuitous public display
of the old South African flag – symbol of apartheid and white supremacy – such
display constitutes hate speech, unfair discrimination and harassment under the
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.

________________________________________________________________
ORDER
________________________________________________________________
On appeal from: Gauteng Division of the High Court, Johannesburg, sitting as
Equality Court (Mojapelo DJP sitting as court of first instance):

Paragraph (2) of the order of the court below is set aside and replaced with
the following order:
‘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 gratuitous public 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.’
Save as aforesaid, the appeal is dismissed. There is no order as to costs of
the appeal.

________________________________________________________________
JUDGMENT
________________________________________________________________
Schippers JA (Maya P and Plasket and Mabindla-Boqwana JJA and Savage
AJA concurring)

[1] This case brings into sharp focus the potency of a symbol of the cruel
ideology of apartheid, infamous for its assault on the dignity, freedom and
equality of black people. The main issue is whether the gratuitous display of that
symbol – the former South African flag (the old flag) – is harmful, incites harm,
and promotes and propagates hatred within the meaning of s 10(1) of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
(the Equality Act).

[2] The appellant, Afriforum NPC (Afriforum), played a leading role in
nationwide demonstrations to protest against the murder of farmers, held on
Monday, 30 October 2017. They were called ‘the Black Monday protests’. It was
widely reported in the mainstream and social media that at some of these protests,
the old flag was displayed. These incidents led to a complaint against Afriforum
lodged by the first respondent, Nelson Mandela Foundation Trust (NMF), with
the Gauteng Division of the High Court, Johannesburg, sitting as an Equality
Court (the high court), that the display of the old flag at the Black Monday
protests was a contravention of the Equality Act.

[3] The second respondent, the Minister of Justice and Constitutional
Development (the Minister), and the third respondent, the Department of Justice
and Correctional Services, were joined as parties in the proceedings in the high
court. They were joined by the fourth respondent, the South African Human
Rights Commission (SAHRC), when it applied for an order declaring that s 10(1)
of the Equality Act was unconstitutional and invalid, to the extent that it restricted
the conduct proscribed by s 10(1) to ‘words’ only.

[4] The high court (Mojapelo DJP) did not issue the declaratory order sought
by the SAHRC. The court interpreted s 10(1) broadly and purposively in the light
of the objects of the Equality Act, namely that the prohibition of hate speech

includes any expression of ideas, whether by words or conduct. This
interpretation was confirmed by the Constitutional Court in Qwelane.1 The high
court determined that the display of the old flag at the Black Monday protests
constituted hate speech, unfair discrimination and harassment, within the
meaning of ss 10(1), 7 and 11 of the Equality Act. All the parties participated in
the appeal, save for two amici curiae that had been admitted by the high court.
The appeal is with the leave of this Court.

The facts
[5] The basic facts were largely undisputed and can be briefly stated. Mr Sello
Hatang, the NMF’s Chief Executive Officer (CEO), said that on the day of the
protests he was giving tourists a guided tour of Robben Island near Cape Town,
where former President Nelson Mandela and his fellow political prisoners had
been incarcerated. The displays of the old flag brought two painful memories of
Mr Hatang’s childhood to mind. The first was an incident during which two white
boys addressed Mr Hatang (then ten years of age) and his brother in the following
repulsive terms, ‘What are you kaffirs doing here?’2 His brother explained that
the ‘k-word’ denoted hatred for, and was used to humiliate black people. This is
how Mr Hatang described the effect of that incident on him:
‘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.’

[6] The second memory was about Mr Hatang’s grandmother. She was a
domestic worker. She hated school holidays because she was subjected to racial
abuse by groups of idle white children. Mr Hatang, who used to accompany his
grandmother, would hear them singing, ‘Here comes a baboon’,3 referring to his
grandmother, as they walked past the children on their way to her place of work.

1 Qwelane v South African Human Rights Commission and Another [2021] ZACC 22 2021 (6) SA 579 (CC); 2022
(2) BCLR 129 (CC) paras 113-114.
2 The statement was uttered in Afrikaans: ‘Wat soek julle hier, Kaffirs?’
3 The abuse was hurled in Afrikaans: ‘Daar kom ‘n bobbejaan.’

She was powerless to do anything about the trauma and anguish she endured as a
result of this abuse.

[7] Mr Hatang recalled these memories because, as he put it, the old flag
‘represents nothing other than the inhumane system of racial segregation and
subjugation that governed South Africa before 27 April 1994’. He went on to say
that the gratuitous display of the old flag, more than a generation after the
abolition of apartheid, reminded him that some South Africans still see him and
black people as ‘other’ and would deny them the opportunity to be human. They
have no concern or compassion for the majority of South Africans who suffered
under apartheid.

[8] On the day of the Black Monday protests and subsequently, the NMF
received numerous media enquiries about its position on the displays of the old
flag. On 5 November 2017 the NMF issued a media statement in which it said
that it deplored the murder of farmers and respected the constitutional right of
South Africans to protest; that the display of the old flag and the burning of the
national flag was deeply problematic; that apartheid was a crime against
humanity; and that displaying the flag of apartheid South Africa represented
support for that crime. The media statement ended with the following question:
‘Is it time to criminalize displays of the old flag?’

[9] That question led to a debate on national television and radio, between
Mr Hatang and Mr Kallie Kriel, the CEO of Afriforum. Mr Kriel, surprisingly,
denied that the old flag had been displayed at any of the protests, dismissed
reports about such displays as ‘fake news’, and subsequently published
statements on Twitter to that effect. Afriforum, he said, discouraged its members
from bringing the old flag to public gatherings which detracted from ‘the main
message, which on Black Monday, was the issue of farm murders’. Mr Kriel

stated that although it was ‘unwise’ to display the old flag as it would ‘offend
people’; ‘it should not be unlawful’ as ‘it is part of history and you cannot ban
history’.

[10] Mr Hatang’s riposte was that both public and private displays of the old
flag were offensive, since they made young people believe that it is acceptable to
harbour racist views and then manifest them in public. Subsequently the NMF
launched the application in the high court for a declaratory order that any
gratuitous display of the old flag constitutes hate speech, unfair discrimination
and harassment under the Equality Act. The founding affidavit states that such
displays serve no genuine journalistic, academic or artistic purpose; and do
nothing to advance social justice, national unity and human dignity – to the
contrary.

[11] Afriforum’s response to the claim that gratuitous displays of the old flag
constitute hate speech, was that the relief sought was a ‘wide-reaching ban’.
Mr Ernst Roets, its Deputy CEO who made the answering affidavit, went on to
say this:
‘At the outset we acknowledge that the old South African flag has the capacity to cause offense
and emotional distress. As an organisation, we have no particular love for the flag or what it
represents. In the exceptionally rare instance that anyone participating in one of our events
brings an old flag with them, we ask them to put it away.’

[12] Afriforum opposed the application in the high court, essentially on the
ground that a ‘wide- reaching ban’ on public displays of the old flag ‘would be
an unconstitutional infringement of the right to freedom of expression’. It
contended that s 10(1) of the Equality Act regulated only ‘words’, not other forms
of expression such as symbols. Therefore, it did not regulate displays of the old
flag, which was neither speech, a call to action, nor incitement to cause harm. The
display of the old flag was not harassment under s 11 of the Equality Act, because

it did not amount to torment that was persistent and repetitive. Neither was it
unfair discrimination under s 7, since it was not the dissemination of information
and constituted protected speech in terms of the proviso in s 12 of the Equality
Act.

The decision of the high court
[13] The high court considered the history of the old flag and what it represents,
and came to the following conclusions. The Union Nationality and Flag Act 40
of 1927 (the Flag Act) was part of a statutory scheme designed to entrench racial
segregation and white supremacy. The old flag is a vivid symbol of white
supremacy and black disenfranchisement and oppression. The Flag Act was
repealed by the Constitution of the Republic of South Africa Act 31 of 1961. The
latter Act retained the old flag,4 entrenched electoral exclusion of everybody other
than ‘white persons’,5 and vested the State President with absolute authority over
‘Bantu affairs’, including ‘Bantu locations’.6

[14]   The old flag was retained in the Republic of South Africa Constitution
Act 110 of 1983, which gave limited electoral rights to ‘Coloured’ and ‘Indian’
persons, but excluded black (African) people from the definition of South
Africa’s ‘population groups’, entitled to ‘self-determination’. The 1983
Constitution gave special protection to the old flag: it provided that any person
who ‘maliciously destroys or spoils the National Flag of the Republic’; or
‘commits any other act which is calculated to hold the National Flag of the

4 Section 5 of the South Africa Constitution Act 31 of 1961 (the 1961 Constitution).
5 Sections 34 and 46 of the 1961 Constitution restricted membership of the Senate and House of Assembly to
‘white persons’. Section 42 provided for the division of provinces into electoral divisions according to voters’
lists comprising ‘white voters’.
6 Section 111 of the 1961 Constitution, in relevant part, provided:
‘The control and administration of Bantu affairs and of matters specially or differentially affecting Asiatics
throughout the Republic shall vest in the State President, who shall exercise all those special powers in regard to
Bantu administration which immediately prior to the commencement of this Act were vested in the Governor-
General-in-Council of the Union of South Africa, and any lands which immediately prior to such commencement
vested in the said Governor-General-in-Council for the purpose of reserves of Bantu locations shall vest in the
State President . . .’

Republic in contempt . . . shall be guilty of an offence and liable on conviction to
a fine not exceeding R10 000 or imprisonment for a period not exceeding five
years’.7 It was only in 1994 that the old flag was replaced by the current flag, with
the end of apartheid and the coming into force of the Interim Constitution.

[15] The high court found that any gratuitous display of the old flag, aside from
being racist and discriminatory, demonstrates a clear intention to be hurtful; to be
harmful and to incite harm; and to promote and propagate hatred against black
people, in contravention of s 10(1) of the Equality Act. Such a display constitutes
hate speech and is ‘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’.

[16] The high court made a determination, in terms of s 21(1) of the Equality
Act, that the display of the old flag (introduced on 31 May 1928 and used
throughout apartheid until it was abolished on 27 April 1994) at the Black
Monday protests, constituted hate speech, unfair discrimination and harassment.
The high court then issued a declaratory order in terms of s 21(2), that subject to
the proviso in s 12 of the Equality Act, any display of the old flag constitutes hate
speech within the meaning of s 10(1); unfair discrimination on the basis of race
in terms of s 7; and harassment in terms of s 11 of that Act.

[17] Afriforum challenged the high court’s order, mainly on the following
grounds. The court did not have the power to grant the relief sought. The matter
was not ripe for hearing. Public displays of the old flag are protected under the
rights to freedom of expression, dignity and freedom of assembly; and do not
constitute hate speech, unfair discrimination or harassment as envisaged in the
Equality Act. Private displays of the flag are protected by the right to privacy.

7 Section 92(1) of the Constitution of the Republic of South Africa Act 110 of 1983.

[18] At the outset it is convenient to deal with the argument that the high court’s
order infringes the rights to dignity8 and freedom of assembly9 of those who
publicly display the old flag. Save for quoting various excerpts from decisions of
the Constitutional Court and other courts, Afriforum failed to make out a case in
its answering papers, or to demonstrate in its written or oral submissions why a
prohibition of gratuitous displays of the old flag violates these rights.

[19] Afriforum did not explain how the display of the old flag implicates or
infringes the right to dignity of the persons displaying it. This, especially when
the founding affidavit made it clear that gratuitous displays of the old flag ‘do
nothing to advance social justice, national unity and human dignity’; and that such
displays were egregious examples of conduct that undermined equality and
human dignity. Neither did Afriforum assert that it is impossible for, or an
impediment to, its followers and others to assemble, demonstrate, picket or
petition, without displaying the old flag. This is simply because the rights to
dignity and freedom of assembly of persons who gratuitously display the old flag,
are not implicated at all.

The procedural defences
[20] Afriforum argued that an equality court is a creature of statute and has no
power to grant relief in respect of ‘prospective conduct that has not yet taken
place’. The case brought by the NMF, so it was argued, was not directed at the
displays of the old flag at the Black Monday protests and those who displayed it,
but at future displays of the flag.

8 Section 10 of the Constitution 108 of 1996 provides:
‘Everyone has inherent dignity and the right to have their dignity respected and protected.’
9 Section 17 of the Constitution states:
‘Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.’

[21] Afriforum however disregards the role of the Equality Court in facilitating
access to justice for the victims of hate speech, unfair discrimination and
harassment. As Navsa JA said in Manong:10
‘It is abundantly clear that the Equality Court was established in order to provide easy access
to justice and to enable even the most disadvantaged individuals or communities to walk off
the street, as it were, into the portals of the Equality Court to seek speedy redress against unfair
discrimination, through less formal procedures.’

[22] But fundamentally, Afriforum ignores the broad powers conferred on the
court by the Equality Act. The powers and functions of the Equality Court are set
out in s 21 of the Equality Act. Section 21(2) provides that after holding an
inquiry, ‘the court may make an appropriate order in the circumstances’,
including a declaratory order. This is hardly surprising. In Rail Commuters Action
Group,11 the Constitutional Court stated that ‘a declaratory order is a flexible
remedy which can assist in clarifying legal and constitutional obligations in a
manner that promotes the protection and enforcement of the Constitution and its
values’. In addition, s 21(5) of the Equality Act emphasises that the Court ‘has all
ancillary powers necessary or reasonably incidental to the performance of its
functions and the exercise of its powers, including the power to grant
interlocutory orders or interdicts’.

[23] In Minister of Environmental Affairs and Tourism v George,12 this Court
considered the nature of an equality court relative to a high court. It held that the
Equality Act ‘vests equality courts with extensive procedural and remedial
powers in complaints of unfair discrimination’, and that ‘the equality court is not
a wholly novel structure, but is a High Court or a designated magistrates’ court’.
Apart from the specific powers which the Equality Act confers, the only

10 Manong and Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape and Others [2009]
ZASCA 50; 2009 (6) SA 589 (SCA); [2009] 3 All SA 528 (SCA) para 53.
11 Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail [2004] ZACC 20; 2005 (2) SA 359
(CC); 2005 (4) BCLR 301 (CC) para 107 at 410D-E.
12 Minister of Environmental Affairs and Tourism v George and Others 2007 (3) SA 62 (SCA) paras 3-4.

distinction between a high court and an equality court is that the presiding Judges
or magistrates must have undergone ‘social context training’.

[24] The Equality Court is a specialised court with expedited rules and an
informal procedure. It applies different evidential thresholds to that of a high
court.13 The object of the Equality Act is to make the Equality Court as accessible
as possible. The formal, adversarial court processes of other courts, which are
often costly and potentially intimidating, have no place in the Equality Court.14
Proceedings may be instituted by any person acting in their own interest or any
person acting on behalf of another who cannot act in their own name.15 The
Regulations made under the Equality Act prescribe the procedures to be followed
at an inquiry, and create an informal court system which places substance above
form or technicality.16

[25] The Equality Act obliges an equality court in which proceedings are
instituted to hold an inquiry in the manner prescribed in the regulations and to
‘determine whether unfair discrimination, hate speech or harassment . . . has taken
place, as alleged’.17 That is precisely what happened in this case. The NMF’s
complaint about the displays of the old flag at the Black Monday protests and
their impact on the complainant and others, were set out in the affidavit filed in
support of the complaint. That evidence was never challenged. Afriforum only
disputed the contention that the display of the old flag was unlawful. The high
court granted declaratory relief based on the evidence before it. But the court also
declared that the displays of the old flag at the Black Monday protests, as a matter
of fact, constituted hate speech, unfair discrimination and harassment. It was
empowered to do so under s 21(2) of the Equality Act.

13 AS v Neotel (Pty) Ltd [2018] ZAEQC 1; 2019 (1) SA 622 (GJ) para 10.
14 George and Others v Minister of Environmental Affairs and Tourism 2005 (6) SA 297 (EqC) para 12.
15 Section 20 of the Equality Act.
16 J A Kok, A Socio-Legal Analysis of the Promotion of Equality and Prevention of Unfair Discrimination Act
4 of 2000 (2007, unpublished doctoral dissertation, University of Pretoria) 145.
17 Section 21(1) of the Equality Act; George fn 12 para 5.

[26] It follows that there was nothing abstract, academic or hypothetical about
the NMF’s complaint. It was based on actual contraventions of the Equality Act,
and grounded in concrete events at which the old flag was displayed. Afriforum’s
argument to the contrary, in reliance on JT Publishing,18 is misconceived.

[27] For the same reasons, Afriforum’s argument based on the doctrine of
ripeness, namely that a court deals with situations that have already ripened or
crystallised, and not with prospective or hypothetical ones,19 is unsustainable.
Apart from this, the old flag is displayed from time to time. It was again displayed
at the Black Monday protests. There is a public controversy about the lawfulness
of doing so. The purpose of the application by the NMF and the SAHRC was to
resolve that very controversy for the benefit of all. Declaratory orders by their
very nature, are often directed at conduct that has not yet occurred. But they are
vital in the right context, specifically to address issues of public importance or
involving a compelling public interest. The Constitutional Court has held that
declaratory orders ‘can bring clarity and finality to disputes that may, if
unresolved, have far-reaching consequences for each party’.20 So, even if there
had not been an actual infringement of the Equality Act, this is precisely the kind
of case in which a declaratory order of the sort issued by the high court is apposite.

[28] In any event, it is legitimate for the SAHRC to say: there has been a public
display of the old flag but it does not wish to bring proceedings against the
individuals who displayed the flag on that occasion, but seeks instead, in the
public interest, that a principle be established that the gratuitous display of the old
flag is unlawful. Such an approach is entirely consonant with a guiding principle

18 JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997 (3) SA 514 (CC) para 15.
19 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC)
para 199.
20 Competition Commission v Hosken Consolidated Investments Ltd and Another [2019] ZACC 2; 2019 (4) BCLR
470 (CC); 2019 (3) SA 1 (CC) para 78.

of the Equality Act: to take measures to eliminate unfair systemic discrimination
and inequalities.21 As the Constitutional Court stated in Qwelane:
‘Our Constitution requires that we not only be reactive to incidences or systems of unfair
discrimination, but also pre-emptive. We need to act after the damage has occurred where so
required but, importantly, we are also required to act to ensure that it does not occur.’22

The values underpinning the prohibition of hate speech
[29] The starting point for an analysis of the meaning and effect of s 10(1) of
the Equality Act, is the Bill of Rights in the Constitution. It contains the
fundamental rights to freedom of expression, equality and dignity. Section 10(1),
which effectively proscribes hate speech, is inextricably linked to these rights. As
the Constitutional Court said in Islamic Unity Convention,23 the State has a direct
interest in regulating hate speech ‘because of the harm it may pose to the
constitutionally mandated objective of building a non-racial and non-sexist
society based on human dignity and the achievement of equality’.

[30] Section 16(1) of the Constitution guarantees the right of freedom of
expression to all persons.24 Freedom of expression is fundamental to most other
rights and freedoms, and quintessential of democracy.25 However, expression
can, and often does, infringe upon the rights and interests of others. This is

21 Section 4(2) of the Equality Act.
22 Qwelane fn 1 para 110.
23 Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC) para 33.
24 Section 16 of the Constitution provides:
‘Freedom of expression
(1) 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; and
(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.’
25 Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another [2020]
ZACC 25; 2021 SACR 387 (CC); 2021 (2) SA 1 (CC); 2021 (2) BCLR 118 (CC) paras 1 and 95; Democratic
Alliance v African National Congress and Another [2015] ZACC 1; 2015 (2) SA 232 (CC); 2015 (3) BCLR 298
paras 122-123; S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) para 37.

recognised in s 16(2) of the Constitution, which excludes hate speech from the
right to freedom of expression. It does so, as the Constitutional Court emphasised
in Qwelane, because ‘[h]ate speech is the antithesis of the values envisioned by
the right to free speech – whereas the latter advances democracy, hate speech is
destructive of democracy’;26 and it ‘undermines the constitutional project of
substantive equality and acceptance in our society’.27

[31] The Equality Act is the legislation mandated by s 9 of the Constitution to
prevent unfair discrimination and to promote the achievement of equality.28
Equality among all people who live in South Africa is at the heart of the
Constitution.29 This is emphasised throughout the Constitution, particularly in the
founding values in s 1.30

[32] Human dignity informs the interpretation of all other rights, including the
rights to freedom of expression and equality.31 In Qwelane,32 the Constitutional
Court described the impact of hate speech on the right to dignity as follows:
‘Hate speech is one of the most devastating modes of subverting the dignity and self-worth of
human beings. This is so because hate speech marginalises and delegitimises individuals based
on their membership of a group. This may diminish their social standing in the broader society,
outside of the group they identify with. It can ignite exclusion, hostility, discrimination and
violence against them.’

26 Qwelane fn 1 para 78.
27 Qwelane fn 1 para 130.
28 Qwelane fn 1 para 48. Section 9(1) read with s 9(4) of the Constitution requires Parliament to enact legislation
to ‘prevent and prohibit unfair discrimination’.
29 Du Preez v Minister of Justice and Constitutional Development and Others [2006] 3 All SA 271 (SE) para 12.
30 Section 1 of the Constitution, in relevant part, reads:
‘Republic of South Africa
The Republic of 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.’
31 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 (3) SA 936 (CC) para 35.
32 Qwelane fn 1 para 1.

Section 10(1) of the Equality Act: hate speech
[33] In terms of the Constitutional Court’s order in Qwelane,33 the prohibition
of hate speech in s 10(1) of the Equality Act now reads:
‘Subject to the proviso in section 12, no person may publish, propagate, advocate or
communicate words that are based on one or more of the prohibited grounds, against any
person, that could reasonably be construed to demonstrate a clear intention to be harmful or to
incite harm; and to promote or propagate hatred.’34

[34] As already stated, the high court interpreted s 10(1) broadly and
purposively in the light of the objects of the Equality Act and the underlying
constitutional imperatives. Its interpretation means that any expression of ideas,
whether by word or conduct, is included in the prohibition in s 10(1). In approving
this interpretation, the Constitutional Court stated that ‘[t]his wide meaning
accords not only with our Constitution, but also with the provisions of the
Equality Act. And it is consonant with international law and comparative foreign
law’.35

[35] The Equality Act itself states what factors should be considered in its
application. Section 4(2) provides:
‘In the application of this Act the following should be recognised and taken into account:
(a) The existence of systemic discrimination and inequalities, particularly in respect of race,
gender and disability in all spheres of life as a result of past and present unfair discrimination,
brought about by colonialism, the apartheid system and patriarchy; and
(b) the need to take measures at all levels to eliminate such discrimination and inequalities.’

[36] When the amended prohibition of hate speech in s 10(1) is read with the
proviso in s 12 of the Equality Act, it proscribes expression: (a) that constitutes

33 Paragraph 1(d) of the order in Qwelane, fn 1. Prior to this order, s 10(1) proscribed the publication, propagation
or communication of words based on a prohibited ground, that could reasonably be construed to demonstrate a
clear intention to ‘be hurtful’.
34 Qwelane fn 1 at 3 of the judgment.
35 Qwelane fn 1 para 113.

publication, propagation or communication of words; (b) based on one or more
of the prohibited grounds against any person; (c) that could reasonably be
construed to demonstrate a clear intention to be harmful or to incite harm, and to
promote or propagate hatred; and (d) provided that bona fide engagement in
artistic creativity, academic and scientific enquiry, fair and accurate reporting in
the public interest or publication of any information, is excluded. In what follows,
each of these elements of s 10(1) are considered in turn.

(a)
The publication, propagation or communication of words
[37] In Qwelane the Constitutional Court held that the use of the terms
‘advocate’ and ‘propagate’ in the section ‘is indicative of ideas rather than words,
if they are to be accorded their full meaning’.36 These two concepts suggest that
the intention is to give effect to article 4 of the International Convention on the
Elimination of all forms of Racial Discrimination (ICERD) and s 16(2)(c) of the
Constitution, which are concerned with racist ‘propaganda’ and the ‘advocacy’
of hatred.37

[38] The concept ‘communicate’ denotes ‘the conveyance of ideas’, and all the
verbs used in the section require some form of public transmission or
dissemination.38 The prohibition extends to the expression of ideas by conduct. It
targets the ‘meaning behind the words, and not simply the words’.39 There is no
question that the gratuitous public display of the old flag constitutes the
publication, propagation, advocacy, or communication of a message, within the
meaning of s 10(1) of the Equality Act.

36 Qwelane fn 1 para 114.
37 Ibid.
38 Qwelane fn 1 para 115.
39 Ibid.

(b)
based on one or more of the prohibited grounds
[39] The message conveyed by gratuitous public displays of the old flag is
plainly one based on race – apartheid and white supremacy. Indeed, this is
common ground. Afriforum did not take issue with the impact of the gratuitous
displays of the old flag on Mr Hatang or black people generally. And as stated, it
acknowledged that the old flag causes offence and emotional distress. That is why
it asks its followers to put away the old flag at Afriforum events, and not to
display it.

[40] The old flag is an awful reminder of the anguish suffered by millions of
people under apartheid South Africa before the advent of democracy in 1994. It
symbolises, clearly and painfully, the policy and manifestation of apartheid. In
fact, Afriforum’s answering affidavit states: ‘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’. As stated in the founding
affidavit of the SAHRC, the old flag represents precisely that racist and repressive
regime, and the dehumanising ideologies espoused during its rule – the racial
superiority of white South Africans and the corresponding inferiority of black
South Africans.

[41] As a revered icon of apartheid, the old flag represents hate, pain and trauma
for most people, particularly black South Africans. The gratuitous public displays
by people of the old flag – a provocative symbol of repression, authoritarianism
and racial hatred – brings into unmistakeable view their affinity and mourning for
the apartheid regime, characterised by its degrading, oppressive and undignified
treatment of black South Africans. The message conveyed is a longing for the
days of apartheid and the restoration of white minority rule.

(c)
reasonably be construed to demonstrate a clear intention to be harmful
or to incite harm, and to promote or propagate hatred
[42] The Constitutional Court has held that this is an objective test. The question
is whether a reasonable person in the circumstances surrounding the expression,
would reasonably construe the words or conduct as demonstrating an intention to
be harmful, incite harm or propagate hatred.40

[43] The emphasis is on the ‘effects of the hate speech, not the intent’.41 In this
regard, the Constitutional Court observed that ‘systemic discrimination tends to
be more widespread than intentional discrimination’:
‘This Court has acknowledged that “systemic motifs of discrimination” are part of the fabric
of our society. This analysis is apt when considering the philosophical underpinnings of hate
speech prohibitions that attach civil liability, coupled with the role of hate speech and systemic
discrimination in this country.’42

[44] The objects of the intention – to be harmful or incite harm, or to promote
or propagate hatred – must be read conjunctively.43 However, the section
distinguishes between the concepts, ‘harmful’ and ‘to incite harm’, which the
Constitutional Court referred to as ‘clear disjunctive terms’.44 Accordingly,
s 10(1) prohibits expression that harms or ‘evokes a reasonable apprehension of
harm to the target group’.45 The incitement of harm and the promotion or

40 Qwelane fn 1 paras 96-101.
41 Qwelane fn 1 para 100, emphasis in the original.
42 Ibid, emphasis in the original. The Constitutional Court endorsed the approach in Saskatchewan (Human Rights
Commission) v Whatcott 2012 SCC 11; [2013] 1 SCR 467 (Whatcott) para 126, in which the Supreme Court of
Canada stated:
‘The preoccupation with the effects, and not with intent, is readily explicable when one considers that systemic
discrimination is much more widespread in our society than is intentional discrimination. To import a subjective
intent requirement into human rights provisions, rather than allowing tribunals to focus solely upon effects, would
thus defeat one of the primary goals of the anti-discrimination statute.’
43 Qwelane fn 1 paras 102-110.
44 Qwelane fn 1 para 112.
45 Ibid.

propagation of hatred are the key elements of hate speech,46 since freedom of
expression requires tolerance of speech that shocks and offends.47

[45] The requirement that speech ‘be harmful or incite harm’ does not require a
causal link to be established between the speech and subsequent actions taken
against individuals or groups at whom the speech is targeted. Requiring such a
causal link would be contrary to and undermine the provisions of the Equality
Act, ‘in that not every instance of harmful . . . speech will result in imminent
violence’. However, the fact that it does not result in imminent violence does not
detract from the reality that such expression would constitute hate speech.48

[46] The Constitutional Court has held that racist speech is particularly
egregious. In Rustenburg Platinum Mine, it said:49
‘Our Constitution rightly acknowledges that our past is one of deep societal divisions
characterised by strife, conflict, untold suffering and injustice. Racism and racial prejudices
have not disappeared overnight, and they stem, as demonstrated in our history, from a
misconceived view that some are superior to others. These prejudices do not only manifest
themselves with regard to race but it can be seen with reference to gender discrimination.’

[47] Racist conduct, the Constitutional Court said in South African Revenue
Service,50 must be dealt with firmly:
‘[R]acist conduct requires a very firm and unapologetic response from the courts, particularly
the highest courts. Courts cannot therefore afford to shirk their constitutional obligation or
spurn the opportunities they have to contribute meaningfully towards the eradication of racism
and its tendencies’

46 In the light of the judgment in Qwelane, which removed the requirement that hate speech must also ‘be hurtful’.
47 Following the judgment in Qwelane, which removed the requirement that it must also ‘be hurtful’.
48 Qwelane fn 1 para 111.
49 Rustenburg Platinum Mine v SAEWA obo Bester [2018] ZACC 13; 2018 (5) SA 78 (CC); 2018 (8) BCLR 951
(CC) para 52.
50 South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others [2016]
ZACC 38; 2017 (1) SA 549 (CC); 2017 (1) BCLR 241 (CC) para 14.

[48] These two cases, it was held in Qwelane,51 ‘demonstrate the presence of
deeply rooted structural subordination in relation to race’. The Court went on to
say:
‘In these cases, the Court underscored how facially innocuous words or notorious words have
to be understood based on the different structural positions in post-apartheid South African
society. This is an approach which takes cognisance of how words perpetuate and contribute
towards systemic disadvantage and inequalities. In essence, this is the corollary of our
substantive equality demands that flow from the Constitution. The purpose of hate speech
regulation in South Africa is inextricably linked to our constitutional object of healing the
injustices of the past and establishing a more egalitarian society. This is done by curtailing
speech which is part and parcel of the system of subordination of vulnerable and marginalised
groups in South Africa.52

[49] The message communicated by gratuitous public displays of the old flag is
not innocuous, let alone facially innocuous. Rather, those who publicly hold up
or wave the old flag, convey a brazen, destructive message that they celebrate and
long for the racism of our past, in which only white people were treated as first-
class citizens while black people were denigrated and demeaned. It is a
glorification and veneration of the hate-filled system that contributed to most of
the ills that beset our society today. The message is aimed at intimidating those
who suffered, and continue to suffer, the ravages of apartheid; and poses a direct
challenge to the new constitutional order. This, when, as stated in the Minister’s
affidavit, it has been determined that apartheid is a crime against humanity.53 And

51 Qwelane fn 1 para 86.
52 Ibid.
53 The International Convention on the Suppression and Punishment of the Crime of Apartheid, 1976 (Gen
Assembly Res 3068/1976 Article I(1) and the Rome Statute Article 7(2)(h) states:
‘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. The Rome Statute describes the crime of apartheid as, “inhumane acts of a
character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of
systematic oppression and domination by one racial group over any other racial group or groups and committed
with intention of maintaining that regime”.’ In 1984 the UN Security Council at its 2560th meeting, endorsed this
Resolution (SC Resolution 556 (1984) of 23 October 1984).

when Afriforum itself states: ‘Most South Africans recoil from the old flag and
openly denounce Apartheid as a crime against humanity’.

[50] Such displays of the old flag are calculated to be harmful: it results in ‘deep
emotional and psychological harm that severely undermines the dignity of the
targeted group’54 – black people. It also incites harm: it is able to ignite exclusion,
hostility, discrimination and violence against them.55 It can, ‘have a severely
negative impact on the individual’s sense of self-worth and acceptance. This
impact may cause the target group members to take drastic measures in reaction,
perhaps avoiding activities which bring them into contact with non-group
members or adopting attitudes and postures directed towards blending in with the
majority’.56 This, in turn, not only perpetuates systemic disadvantage and
inequalities, but also obstructs the constitutionally mandated objective of building
a non-racial society based on human dignity and the achievement of equality; and
impairs the pursuit of national unity and reconciliation.57 In short, hate speech
tears at the very fabric of our society.58

[51] That brings me to last element of s 10(1) of the Equality Act: the promotion
or propagation of hatred. The word ‘promote’ in this context, means to ‘further
or encourage the progress or existence of’ hatred.59 To ‘propagate’ means to
‘extend the bounds of’, ‘spread (esp. an idea, practice, etc.) from place to place’,60
or ‘promulgate; disseminate’61 hatred.

54 Qwelane fn 1 para 154.
55 Qwelane fn 1 para 1.
56 R v Keegstra [1990] 3 SCR 697 at 746i-j, approved in Qwelane fn1 para 154.
57 Islamic Unity Convention fn 23 paras 28 and 33; Qwelane fn 1 para 1.
58 Qwelane fn 1 para 1.
59 Collins English Dictionary online at www.collinsdictionary.com/dictionaryenglishpromote (accessed on
14 April 2023).
60 L Brown The New Shorter Oxford English Dictionary on Historical Principles (3 ed 1993) Vol 2 at 2378.
61 Collins English Dictionary online at www.collinsdictionary.com/dictionaryenglishpromote (accessed on
14 April 2023).

[52] The Constitutional Court, with reference to three Canadian cases, held that
hate speech is not merely offensive expression, but ‘extreme detestation and
vilification which risks provoking discriminatory activities’ against the target
group. The first of these cases, Canada v Taylor,62 defined ‘hatred’ as, ‘strong
and deep felt emotions of detestation, calumny and vilification’. In the second,
R v Andrews,63 it was said that ‘[t]o promote hatred is to instill detestation,
enmity, ill-will and malevolence in another’. Finally, in R v Keegstra, the court
stated that hatred is ‘the most severe and deeply felt form of opprobrium’, that ‘is
predicated on destruction, and hatred against identifiable groups therefore thrives
on insensitivity, bigotry and destruction of both the target group and the values
of our society’.64

[53] The gratuitous public display of the old flag is extremely degrading and
dehumanising to those who suffered under apartheid. This was not disputed by
Afriforum as the high court noted in its judgment. The display exposes those who
suffered to racial bigotry, detestation and vilification, and inspires hatred and
extreme ill-will against them. The message being sent, intentionally, is that life
in South Africa was better under apartheid and black people are to be
downtrodden, despised and denied their humanity, solely on account of their race.
There is no escaping it: the message legitimises white supremacy.

[54] It is therefore unsurprising that white supremacists around the world have
adopted and used the old flag as a symbol of hatred, oppression, and racial
superiority. The founding affidavit of the SAHRC refers to the case of the
convicted murderer, 21-year old Mr Dylann Roof (Roof), who shot and killed
nine black people gathered for a Bible study in Charleston, South Carolina in the
United States, in June 2015. He posted a photograph on the internet, annexed to

62 Canada (Human Rights Commission) v Taylor [1990] 3 SCR 892 at 928.
63 R v Andrews [1990] 3 SCR 697 at 870.
64 R v Keegstra fn 56 at fn 700 and 777 of the judgment.

the affidavit, which shows him wearing a black jacket with two conspicuous
patches affixed to the right front of it: the old flag and below it, the flag of white-
ruled Rhodesia, which was forced to concede power to a non-racial democracy,
now Zimbabwe. Roof’s choice of symbols and the murder of black worshippers,
could hardly send a stronger message of white supremacy and hatred.

[55] The United States Court of Appeals for the Fourth Circuit upheld Roof’s
conviction on, inter alia, ‘nine counts of racially motivated hate crimes resulting
in death’.65 The Court’s description of Roof’s claim of white supremacy and
hatred that caused him to commit these heinous crimes, is chilling:
‘He also used the internet to propagate his racist ideology. In a journal that the police found in
Roof’s home, Roof had written the name of a website he had created. The website was hosted
by a foreign internet server, to which Roof made monthly payments. Hours before the
shootings, Roof uploaded racist material to the website. The website included hyperlinks to
text and photos. The text linked to a document where Roof expressed his virulent racist
ideology, claimed white superiority, and called African Americans “stupid and violent.” He
discussed black-on-white crime, claiming it was a crisis that the media ignored. He issued a
call to action, explaining that it was not “too late” to take America back and “by no means
should we wait any longer to take drastic action.” He stated that nobody “was doing anything
but talking on the internet,” that “someone has to have the bravery to take it to the real world,”
and “I guess that has to be me.” ’66

[56] For the above reasons, any gratuitous public display of the old flag satisfies
the requirement of promoting and propagating hatred as envisaged in s 10(1) of
the Equality Act. It provides fertile ground for the violence and brutality of
racism. No wonder the Equality Act is aimed at ‘the eradication of unfair
discrimination, hate speech and harassment, particularly on the grounds of
race’.67

65 United States of America v Dylann Storm Roof decided on 25 August, 2021 225 F. Supp. 3D413 (D.S.C. 2016).
66 US v Roof fn 65 4623–4627.
67 Section 2(c) of the Equality Act, emphasis added.

(d)
The proviso in section 12
[57] The prohibition of hate speech in s 10 is subject to the proviso in s 12 of
the Equality Act.68 The high court therefore rightly made its declaratory order
subject to s 12, ie that a display of the old flag for artistic, academic or journalistic
purposes, is not prohibited.

[58] Afriforum argued that the high court’s order constitutes a ‘wide-reaching
ban’ on the display of the old flag, and an unconstitutional infringement of the
right to freedom of expression. The argument is groundless. The high court
emphasised that the NMF had not sought an order banning the old flag, but that
its public display be confined to genuine artistic, academic or journalistic
expression in the public interest. For this reason, the court did not impose a
wholesale ban on displays of the old flag. Instead, it declared that displays of the
old flag that do not fall within the proviso in s 12, constitute hate speech, unfair
discrimination and harassment.

Section 7 of the Equality Act: unfair discrimination
[59] In terms of the Equality Act, ‘discrimination’ includes any act, omission or
situation which imposes disadvantage on any person on one or more of the
prohibited grounds’. For present purposes, the prohibited ground is race. Section
7(a) provides:
‘Prohibition of unfair discrimination on grounds of race
Subject to section 6, no person may unfairly discriminate against any person on the ground of
race, including-

68 Section 12 of the Equality Act provides:
‘Prohibition of dissemination and publication of information that unfairly discriminates
No person may-
(a) disseminate or broadcast any information;
(b) publish or display any advertisement or notice,
that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly
discriminate against any person: 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.’

(a) the dissemination of any propaganda or idea, which propounds the racial superiority or
inferiority of any person, including incitement to, or participation in, any form of racial
violence;’69

[60] As in the case of hate speech in terms of s 10(1) of the Equality Act, the
prohibitions of unfair discrimination on the ground of race and harassment, are
statutory delicts actionable in the Equality Court.70 The elements of these
statutory delicts must be established objectively,71 on a balance of probabilities.72

[61] Section 13(1) requires a respondent to show the absence of racial
discrimination. It reads:
‘Burden of proof
(1) If the complainant makes out a prima facie case of discrimination-

(a) the respondent must prove, on the facts before the court, that the discrimination did
not take place as alleged; or

(b) the respondent must prove that the conduct is not based on one or more of the
prohibited grounds.
(2) If the discrimination did take place-
(a) on a ground in paragraph (a) of the definition of “prohibited grounds”, then it is
unfair, unless the respondent proves that the discrimination is fair;
(b) on a ground in paragraph (b) of the definition of “prohibited grounds”, then it is
unfair-
(i) if one or more of the conditions set out in paragraph (b) of the definition of
“prohibited grounds” is established; and
(ii) unless the respondent proves that the discrimination is fair.’

69 Section 6 of the Equality Act contains a general prohibition of unfair discrimination. It states: ‘Neither the State
nor any person may unfairly discriminate against any person.’
70 Qwelane fn 1 para 95
71 Qwelane fn 1 paras 96-101.
72 Social Justice Coalition and Others v Minister of Police and Others [2018] ZAWCHC 181; 2019 (4) SA 82
(WCC) paras 67-68.

[62] Section 14(2) provides that in deciding whether a respondent has proved
that the discrimination is fair, the context and the factors referred to in
subsection (3) must be taken into account. These factors include the following:
‘(a) whether the discrimination impairs or is likely to impair human dignity;
(b) the impact of likely impact of the discrimination on the complainant;
(c) the position of the complainant in society and whether he or she suffers from patterns of
disadvantage or belongs to a group that suffers from such patterns of disadvantage;
(d) the nature and extent of the discrimination;
(e) whether the discrimination is systemic in nature;
. . .’

[63] The evidence established that the displays of the old flag at the Black
Monday protests propounded the racial superiority of white people and the racial
inferiority of black people. Having regard to the factors listed in ss 14(2) and (3)
of the Equality Act, the public displays of the old flag at the Black Monday
protests were plainly actual, and not merely prima facie, proof of racial
discrimination. Afriforum did not challenge this evidence; neither did it adduce
any evidence to show that the discrimination did not take place, nor that the public
displays of the old flag were not based on race, as required by s 13(1).

[64] It follows that the gratuitous public display of the old flag constitutes unfair
discrimination based on race, within the meaning of s 7 of the Equality Act. This
interpretation, and that of s 10(1) referred to above, accords with the objects of
the Act, which include facilitating compliance with the State’s treaty obligations
under the ICERD and the International Covenant on Civil and Political Rights
(ICCPR), that are binding on this country.73 South Africa ratified the ICERD on
9 January 1999, and the ICCPR on 10 December 1998.

73 In terms of s 2(h) of the Equality Act, its objects include ‘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’. The
preamble to the Act also refers to South Africa’s international obligations under binding treaties and customary
international law.

[65] The ICERD obliges State Parties to take positive measures to eradicate all
incitement of racial hatred or acts of discrimination in any form; and to declare
all dissemination of ideas based on racial superiority, hatred, discrimination, acts
of violence and incitement to such acts, offences punishable by law.74 The ICCPR
prohibits ‘any advocacy’ of racial hatred ‘that constitutes incitement to
discrimination’.75

Section 11 of the Equality Act: harassment
[66] Section 11 of the Equality Act states:
‘No person may subject any person to harassment.’
The Act defines ‘harassment’ as,
‘unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile
and intimidating environment or is calculated to induce submission by actual or threatened
adverse consequences and which is related to-
(a) sex, gender or sexual orientation;
(b) a person’s membership or presumed membership of a group identified by one or more of
the prohibited grounds or a characteristic associated with such group;’

[67] The high court correctly concluded that Afriforum’s argument that the
display of the flag did not constitute harassment because it did not amount to
torment that was persistent and repetitive, was unsound. In the light of the
evidence that any gratuitous public display of the old flag seriously demeans,
humiliates and creates a hostile and intimidating environment for victims of

74 Article 4 of the ICERD provides:
‘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 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 racist
activities, including the financing thereof.

75 Article 20 para 2 of the ICCPR provides that ‘[a]ny advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence shall be prohibited by law’.

apartheid, particularly black people, the finding that such a display constitutes
harassment under s 11, cannot be faulted.

[68] Before us, Afriforum conceded that a display of the old flag could be used
to harass a person, but argued that not all displays envisaged in the high court’s
order would constitute harassment. It cited the private display of the flag, which
is not aimed at any person, as an example of this. In cases where all those
witnessing the display are willing participants, so it was argued, they would also
not be subject to unwanted conduct and none of them would have been harassed.
However, Afriforum misses the point. It is the gratuitous public display of the old
flag that constitutes harassment as defined in the Equality Act. It cannot be
suggested that those who witness the display of the old flag in the privacy of a
home, are all ‘willing participants’. They may or may not subscribe to the racist
ideology that the old flag represents.

[69] What remains is Afriforum’s argument that private displays of the flag are
protected by the right to privacy in s 14 of the Constitution.76 Paragraph (2) of the
high court’s order states that ‘any’ display of the old flag constitutes hate speech,
unfair discrimination and harassment. The court reasoned that in modern-day
South Africa, there is hardly any space which is private to one race to the
exclusion of another; and that 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’.

[70] There can be no dispute that the gratuitous display of the old flag at a
school, be it public or private, would fall foul of ss 10(1), 7 and 11 of the Equality

76 Section 14 of the Constitution provides:
‘Everyone has the right to privacy, which includes the right not to have –
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.’

Act: it is a public space. The high court however erred in issuing a declaratory
order which includes any display of the old flag within the privacy of a home, as
being a contravention of the Act, for two reasons. First, the NMF failed to state a
claim on which such relief could be granted. The inquiry before the high court as
to whether hate speech, unfair discrimination or harassment had taken place, was
squarely founded on gratuitous public displays of the old flag at the Black
Monday protests. That was the conduct ‘alleged’ within the meaning of s 21(1)
of the Equality Act, and the issue the court was called upon to decide.

[71] Second, the issue as to whether a private display of the old flag would
contravene the Equality Act was not properly and fully argued; neither in the high
court nor in this Court. It is therefore imprudent and inappropriate for this Court
to pronounce upon it. The issue is not fit for judicial decision in this case, and no
hardship will be caused to any of the parties if its consideration is withheld, until
such a complaint is lodged with the Equality Court. It follows that paragraph (2)
of the high court’s order must be amended.

[72]  Afriforum relies on Qwelane for its submission that the high court erred
in declaring private displays of the old flag as hate speech. The Constitutional
Court stated that the concepts to ‘promote’, and ‘propagate’ hatred in s 10(1)(c)
of the Equality Act ‘do not fit the notion of communicating in private’; and the
word, ‘communicate’ in s 10(1) excludes private conversations.77 The Court went
on to say that our most private communications form part of the ‘inner sanctum
of the person’, which is in the ‘truly personal realm’,78 and are thus protected by
the right to privacy. The prohibition of hate speech should not extend to private
communications.79

77 Qwelane fn 1 para 116.
78 Qwelane fn 1 para 117.
79 Qwelane fn 1 paras 117-118.

[73] However, Afriforum’s reliance on these statements by the Constitutional
Court, merely underscores the inappropriateness of deciding, in the present case,
the question whether private displays of the old flag contravene the Equality Act.
This however, is not to say that a private display of the old flag can never breach
the provisions of the Equality Act. It is hard to see how a display of the old flag
in the privacy of a home to which, for example, family members, children or
young people are invited and indoctrinated in racism and white supremacy, would
not entitle a person to institute proceedings in the Equality Court for an order that
there has been a breach of the Act. But that is a case for another day.

[74] Finally, there is the question of costs. In the high court the parties agreed
that there should be no costs order. However, in this Court Afriforum, relying on
Biowatch,80 submitted that it was entitled to costs if the appeal succeeded and if
not, each party should pay its own costs. By reason of this stance, the NMF
contended that it was entitled to costs should the appeal fail. The SAHRC did not
seek a costs order on appeal. There is no reason why the Biowatch principle
should not apply: this is constitutional litigation in which Afriforum proffered
defences based on the protection of fundamental rights. It is thus appropriate that
there should be no costs order on appeal.

[75] In the result, the following order is issued:
Paragraph (2) of the order of the court below is set aside and replaced with
the following order:
‘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 gratuitous public display
of the Old Flag constitutes:

80 Biowatch Trust v Registrar, Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 32 (CC); 2009 (10)
BCLR 1014 (CC).

(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.’
Save as aforesaid, the appeal is dismissed. There is no order as to costs of
the appeal.

__________________
A SCHIPPERS
JUDGE OF APPEAL

Appearances:

For appellant:

M Oppenheimer
Instructed by:
Hurter Spies Inc, Centurion

Rossouw & Conradie Inc, Bloemfontein

For first respondent:
T Ngcukaitobi SC (with B Winks and J Chanza)
Instructed by:

Rupert Candy Attorneys, Sandton

Mphafi Khang Inc, Bloemfontein

For second and
third respondent:
S Kazee
Instructed by:

The State Attorney, Johannesburg

The State Attorney, Bloemfontein

For fourth respondent:
W Trengrove SC (with J L Griffiths)
Instructed by:

Webber Wentzel Attorneys, Johannesburg

Symington De Kok, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From: The Registrar, Supreme Court of Appeal
Date:  21 April 2023
Status:  Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form
part of the judgment of the Supreme Court of Appeal
Afriforum NPC v Nelson Mandela Foundation Trust and Others (Case no 371/2020) [2023] ZASCA
58 (21 April 2023)

Today the Supreme Court of Appeal (SCA) dismissed an appeal by Afriforum NPC (Afriforum), against
an order by the Equality Court, Gauteng Division of the High Court, Johannesburg, sitting as an Equality
Court (the high court). The main issue in the appeal was whether the high court was correct in holding
that the display of the old South African flag (the old flag) is harmful, incites harm, and promotes and
propagates hatred within the meaning of s 10(1) of the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 (the Equality Act).
Afriforum played a leading role in nationwide demonstrations to protest against the murder of farmers,
held on Monday, 30 October 2017. They were called ‘the Black Monday protests’. It was widely
reported in the mainstream and social media that at some of these protests, the old flag was displayed.
These incidents led to a complaint against Afriforum lodged by the Nelson Mandela Foundation Trust
(NMF) with the high court, that the public displays of the old flag at the Black Monday protests was a
contravention of the Equality Act. The Minister of Justice and Constitutional Development and the
Department of Justice and Correctional Services were joined as parties in the proceedings in the high
court by the South African Human Rights Commission (SAHRC). The SAHRC applied for an order
declaring that s 10(1) of the Equality Act was unconstitutional and invalid, to the extent that it restricted
the conduct proscribed by s 10(1) to ‘words’ only.

The high court did not issue the declaratory order sought by the SAHRC. The court interpreted s 10(1)
broadly and purposively in the light of the objects of the Equality Act, namely that the prohibition of
hate speech includes any expression of ideas, whether by words or conduct. The high court issued a
declaratory order that the display of the old flag at the Black Monday protests constituted hate speech,
unfair discrimination and harassment, within the meaning of ss 10(1), 7 and 11 of the Equality Act.
Afriforum challenged the high court’s order, mainly on the following grounds. The court did not have
the power to grant the relief sought. The matter was not ripe for hearing. Public displays of the old flag
are protected under the rights to freedom of expression, dignity and freedom of assembly; and do not
constitute hate speech, unfair discrimination or harassment as envisaged in the Equality Act. Private
displays of the flag are protected by the right to privacy.

The SCA held that the constitutional rights to dignity and freedom of assembly of persons who
gratuitously display the old flag, were not implicated at all. It dismissed Afriforum’s procedural
defences that the Equality Court had no power to grant the declaratory order that it did, and that the
matter was not ripe for hearing, for the following reasons. The Equality Court was obliged, under s 21(1)
of the Equality Act, to determine whether the NMF’s complaint that the displays of the old flag at the
Black Monday protests, constituted hate speech, unfair discrimination or harassment. Having decided

that it was, the Equality Court was empowered to issue the declaratory order in terms of s 21(2) of the
Equality Act. The issue before the Equality Court was not hypothetical as there was a public controversy
about the lawfulness of public displays of the old flag.

The SCA held that when the prohibition of hate speech in s 10(1) is read with the proviso in s 12 of the
Equality Act (as amended by the Constitutional Court in Qwelane v South African Human Rights
Commission and Another [2021] ZACC 22; 2021 (6) SA 579 (CC)), it proscribes expression: (a) that
constitutes  publication, propagation or communication of words; (b) based on one or more of the
prohibited grounds against any person; (c) that could reasonably be construed to demonstrate a clear
intention to be harmful or to incite harm, and to promote or propagate hatred; and (d) provided that
bona fide engagement in artistic creativity, academic and scientific enquiry, fair and accurate reporting
in the public interest or publication of any information, is excluded.

The SCA held that the publication, propagation, or communication of words in s 10(1) includes the
expression of ideas by conduct. The gratuitous public display of the old flag was on a prohibited ground,
namely race. The old flag symbolises, clearly and painfully, apartheid and white supremacy.
Objectively, the displays of the old flag could reasonably be construed as demonstrating a clear intention
to be harmful and to incite harm. Those who publicly hold up or wave the old flag, convey a brazen,
destructive message that they celebrate and long for the racisms of our past, in which only white people
were treated as first-class citizens while black people were then degraded and demeaned. This results
in deep emotional and psychological harm that severely undermines the dignity of black people. It also
incites harm because it can ignite exclusion, hostility, discrimination and violence against them.

The SCA found that any gratuitous public display of the old flag satisfies the requirement of promoting
and propagating hatred as envisaged in s 10(1) of the Equality Act. It is extremely degrading and
dehumanising to those who suffered under apartheid. It exposes them the racial bigotry, detestation and
vilification, and inspires hatred and extreme ill-will against them. White supremacists around the world
have used the old flag as a symbol of hatred, oppression and racial superiority. In this regard, the SCA
referred to the case of the convicted murderer, Mr Dylann Roof (Roof), who was convicted of ‘nine
counts of racially motivated hate crimes resulting in death’. He murdered nine black people gathered
for a bible study in Charleston, South Carolina in the United States. Roof posted a photo on the internet
showing him wearing a black jacket with a patch of the old flag conspicuously affixed to the front of it.

The SCA dismissed Afriforum’s claim that the high court’s order constitutes a ‘wide reaching ban’ on
the display of the old flag and an unconstitutional infringement of the right to freedom of expression.
The high court did not impose a wholesale ban on displays of the old flag. Its public display for genuine
artistic, academic or journalistic expression in the public interest, is not prohibited.

The SCA concluded that the gratuitous public display of the old flag also constitutes unfair
discrimination as envisaged in s 7 of the Equality Act on the grounds of race. Afriforum did not
challenge the evidence that the public displays of the old flag at the Black Monday protests were actual,
and not merely prima facie proof of racial discrimination. The gratuitous public displays of the old flag
also constitute harassment within the meaning of s 11 of the Equality Act, because it seriously demeans,
humiliates and creates a hostile and intimidating environment for the victims of apartheid.
The SCA found that the high court erred in issuing a declaratory order prohibiting ‘any’ display of the
old flag, which would include a display within the privacy of a home. The NMF failed to state a claim
on which such relief could be granted. Its case was squarely founded on public displays of the old flag
at the Black Monday protests. Further, the issue as to whether private displays of the old flag would
contravene the Equality Act, was not properly and fully argued; neither in the high court nor in the
SCA. It was therefore imprudent and inappropriate for the SCA to pronounce upon it. Consequently,
the SCA set aside the high court’s order prohibiting ‘any’ display of the old flag and replaced it with an
order prohibiting ‘gratuitous public displays’ of the old flag, subject to the proviso in s 12 of the Equality
Act. The SCA made no order as to costs.
~~~~ends~~~~