On Tuesday, arguments were heard in the Nelson Mandela Foundation’s case before the Equality Court that displaying the apartheid-era flag of South Africa should be declared hate speech. The foundation’s lawyer, Tembeka Ngcukaitobi, excoriated the white supremacist lobby group AfriForum, which alongside the Federasie van Afrikaanse Kultuurvereniginge (FAK), who joined the case as amicus curiae to defend the display of these flags on free speech grounds.
AfriForum in its papers before the court argued that the feelings of black people who might be offended by the display of the flag should not take precedence over the rights of the flag displayer. Ngcukaitobi accused the organisation of failing to find the perspective of black people.
He said: “AfriForum does not engage seriously with the impact of this flag. What it has said is that it acknowledges… that the flag has the capacity to cause offence and emotional distress. And yet the evidence is the flag caused offence, it’s not about emotional distress. It’s not as if someone is offended that they’ve been dumped by their girlfriend. It is simply an assault to human dignity that is represented by the flag. And that is what AfriForum does not seem to grasp.”
Ngcukaitobi argued that there is no neutral reason for AfriForum and FAK to argue that there is a non-racist way of displaying the flag. He said: “Although AfriForum and FAK have come to court to contend for the continued display of the flag, what they have not told us is to what end. Why do they actually want to display the flag? You hear them saying: ‘Some people want to use it for cultural reasons. We should not drive the people who want to display the flag.’ Et cetera etc cetera. What we do not know is why the want to display the flag. The Foundation is quite clear that those people who want to display the flag are doing so for reasons of hankering towards the past, that obviously was a white, historically privileged past. That is why they want to display the flag.”
“In light of the provisions of the Constitution, where the ultimate goal is the protection of dignity, we say the outcome that AfriForum contends for will be an outcome that perpetuates the violation of dignity,” Ngcukaitobi.
Remarkably, FAK’s lawyer Iain Currie conceded that the history and intention of the flag was to unite the English and Dutch groups in South Africa at the time, but also the exclusion of all other groups in the country.
“It has to be accepted that [its history] makes the flag problematic. That stain can never be washed from it,” Currie said.
The case continues.
Watch the court proceedings:
Featured image via Wikimedia Commons
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