Afriforum NPC v Nelson Mandela Foundation Trust and Others

Afriforum NPC played a leading role in organising the ‘Black Monday’ protests on 30 October 2017 against the murder of farmers. During some of these protests, participants displayed the old South African national flag used during the apartheid era. The Nelson Mandela Foundation Trust (NMF) lodged a complaint in the Gauteng Division of the High Court, Johannesburg, sitting as an Equality Court, alleging that the gratuitous public display of the old flag constituted hate speech, unfair discrimination, and harassment under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act). The NMF relied on the historical meaning of the flag as a symbol of apartheid, white supremacy, and racial oppression, and on the personal and collective harm caused to black South Africans by such displays. Afriforum opposed the application, arguing that banning displays of the old flag infringed freedom of expression and that section 10(1) of the Equality Act applied only to words, not symbolic conduct.

The appeal succeeded only to the extent that paragraph (2) of the Equality Court’s order was replaced. The Supreme Court of Appeal declared that, subject to the proviso in section 12 of the Equality Act, any gratuitous public display of the old South African flag constitutes hate speech under section 10(1), unfair discrimination on the basis of race under section 7, and harassment under section 11 of the Equality Act. Save for this amendment, the appeal was dismissed. No order as to costs was made.

This case is a leading authority on hate speech and symbolic expression in South Africa. It affirms that apartheid-era symbols may constitute hate speech when displayed gratuitously, and that freedom of expression does not protect expression that undermines dignity, equality, and non-racialism. The judgment clarifies the scope of section 10(1) of the Equality Act, confirms the broad remedial powers of Equality Courts, and reinforces the constitutional commitment to substantive equality and transformation.