Episode 93 - WHAT IF A PRO-BLACK ORGANISATION WANTED TO USE THE OLD SA FLAG TO CRITIQUE THE ANC?

The law only allows three exceptions to the use of symbols of
hate such as the old SA flag. These exceptions include the usage
of the symbol for purposes of bona fide artistic ends, academic
endeavour or journalism. The gratuitous display of the old SA
flag, for these reasons, has been declared as constituting hate
speech.

AfriForum is hoping to persuade the supreme court of appeal that
general free speech rights are impermissibly restricted by such a
declaration. The Nelson Mandela Foundation as well the Human
Rights Commission argued that AfriForum's view, in turn, took
inadequate account of the rights of dignity and equality which
constrain the free speech rights AfriForum are asserting. The SCA
now has to adjudicate the matter. 

In this edition of In The Ring, advocate Ben Winks, who
represented the NMF, joined me to discuss an aspect of the case
that has been under the radar. What happens if a black person or
a black-led and pro-black organisation used the old SA flag as
part of their political speech rights such as, say, waving it
publicly as a trenchant critique of the quality of the current
ANC government? Would such usage also be deemed to be a
celebration of white supremacy? Or ought we to distinguish such
cases from the gratuitous display of the flag by right-wing
organisations? How should the law handle this? Besides, such an
instance would not be artistic, academic or journalistic? Should
the law be expanded to include political usage of such symbols as
another exemption from the hate speech laws? 

We did not arrive at clear conclusions but framed the inherent
legal, political and ethical complexities these questions
occasion.