Afriforum NPC v Nelson Mandela Foundation Trust and Others

On 30 October 2017, Afriforum led nationwide "Black Monday" protests against farm murders. Media reports indicated that the old South African flag (symbol of apartheid, used until 27 April 1994) was displayed at some protests. The Nelson Mandela Foundation (NMF) lodged a complaint with the Gauteng High Court sitting as an Equality Court that these displays violated the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act). The NMF's CEO, Sello Hatang, testified that seeing the old flag brought back traumatic childhood memories of racial abuse and that the flag represents the inhumane system of apartheid. Afriforum's CEO Kallie Kriel initially denied displays occurred, later acknowledged the flag has capacity to offend but argued it should not be unlawful as "part of history". Afriforum opposed the application arguing that a ban would unconstitutionally infringe freedom of expression. The South African Human Rights Commission (SAHRC) joined seeking a declaration that section 10(1) was unconstitutional insofar as it restricted hate speech to "words" only.

• Whether gratuitous public display of the old South African flag constitutes hate speech under section 10(1) of the Equality Act
• Whether section 10(1) of the Equality Act extends beyond 'words' to include symbols and conduct
• Whether gratuitous display of the old flag constitutes unfair discrimination on the basis of race under section 7 of the Equality Act
• Whether gratuitous display of the old flag constitutes harassment under section 11 of the Equality Act
• Whether a prohibition on displaying the old flag infringes the constitutional right to freedom of expression under section 16
• Whether the Equality Court had jurisdiction to grant prospective declaratory relief
• Whether private displays of the old flag are protected by the constitutional right to privacy under section 14

The appeal was dismissed save for the modification of paragraph 2 of the High Court order. The order was amended to declare 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." There was no order as to costs of the appeal, applying the Biowatch principle for constitutional litigation.

The binding legal principles established are: (1) Section 10(1) of the Equality Act must be interpreted broadly to include expression of ideas by conduct and symbols, not just words. (2) Gratuitous public display of the old South African flag constitutes hate speech under section 10(1) because it objectively demonstrates a clear intention to be harmful or incite harm and to promote or propagate hatred based on race. (3) Such displays constitute unfair discrimination on the basis of race under section 7 of the Equality Act as they propound racial superiority and inferiority. (4) Such displays constitute harassment under section 11 as they seriously demean, humiliate and create a hostile and intimidating environment for victims of apartheid, particularly black people. (5) The test for hate speech is objective - whether a reasonable person would construe the expression as demonstrating an intention to be harmful, incite harm or propagate hatred - with emphasis on effects not intent. (6) Racist expression must be understood in its structural and historical context, taking account of systemic discrimination and inequalities flowing from apartheid. (7) Equality Courts have broad powers under section 21 of the Equality Act to grant declaratory relief based on actual contraventions to address issues of public importance. (8) The section 12 proviso protects bona fide artistic, academic, journalistic or scientific expression from prohibition.

The Court made several non-binding observations: (1) It noted that Afriforum failed to make out any case that prohibition of gratuitous displays of the old flag violates rights to dignity or freedom of assembly, as these rights are simply not implicated. (2) The Court observed that white supremacists globally have adopted the old flag as a symbol of hatred and racial superiority, citing the example of Dylann Roof who wore the old flag when murdering nine black people in Charleston. (3) The Court stated that while it was inappropriate to decide in this case whether private displays of the flag within homes violate the Equality Act (as this was not properly pleaded or argued), this does not mean such displays could never breach the Act - for example where a home is used to indoctrinate children in racism and white supremacy. (4) The Court emphasized that in modern South Africa there is hardly any space which is private to one race to the exclusion of another. (5) The judgment noted that requiring a causal link between hate speech and subsequent violence would undermine the Equality Act, as harmful speech that does not result in imminent violence still constitutes hate speech. (6) The Court observed that the Equality Court is a specialized court with expedited rules, informal procedures, and different evidential thresholds designed to make justice as accessible as possible.

This judgment is a landmark decision in South African equality jurisprudence. It establishes definitively that hate speech provisions extend beyond mere words to encompass symbols and conduct. It recognizes the profound harm caused by symbols of apartheid and white supremacy in post-apartheid South Africa. The judgment reinforces that apartheid was a crime against humanity and that displays of its symbols constitute hate speech that threatens the constitutional project of building a non-racial, democratic society based on dignity and equality. It balances freedom of expression with the need to protect marginalized groups from racist expression that promotes hatred and discrimination. The decision emphasizes the importance of understanding speech and symbols in their structural and historical context, particularly regarding systemic discrimination. It affirms the specialized role and broad remedial powers of Equality Courts in facilitating access to justice. The judgment also provides important guidance on when declaratory relief is appropriate in matters of compelling public interest, while recognizing limits when issues have not been properly pleaded or argued (such as private displays).