Nelson Mandela Foundation Trust and Another v Afriforum NPC and Others

JurisdictionSouth Africa
Citation2019 (6) SA 327 (GJ)

Nelson Mandela Foundation Trust and Another v Afriforum NPC and Others
2019 (6) SA 327 (GJ)

2019 (6) SA p327


Citation

2019 (6) SA 327 (GJ)

Case No

EQ 2/2018

Court

Gauteng Local Division, Johannesburg

Judge

Mojapelo DJP

Heard

August 21, 2019

Judgment

August 21, 2019

Counsel

T Ngcukaitobi (with A Msimang and W Winks) for the first applicant.
W Trengove SC
(with F Ismail and I Phalane) for the second applicant.
M Oppenheimer for the first respondent.
S Kazee for the second and third respondents.
I Goodman (with T Mosikili) for the first amicus (Johannesburg Pride NPC).
I Currie for the second amicus (Federasie van Afrikaanse Kultuurvereniginge).

Flynote : Sleutelwoorde

Constitutional law — Human rights — Right to freedom of expression — Exclusions — Hate speech — What constitutes — Gratuitous display of old South African flag (apartheid flag) — Constituting hate speech — Not protected — Constitution, s 16(2). C

Equality legislation — Hate speech — What constitutes — Gratuitous display of old South African flag (apartheid flag) constituting hate speech, harassment and unfair discrimination — Not protected by constitutional right to free speech — Constitution, s 16(2)(c); Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, ss 7, 10(1) and 11. D

Flag — Old South African flag (apartheid flag) — Gratuitous display constituting hate speech, unfair discrimination and harassment — Not protected by right to free speech — Constitution, s 16(2)(c); Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, ss 7, 10(1) and 11. E

Headnote : Kopnota

Does the gratuitous [*] display of the old, pre-1994 South African flag amount to hate speech prohibited by s 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Act)? The Nelson Mandela Foundation Trust (NMF), supported by the South African Human Right Commission (the second applicant), argued that it did and asked the Johannesburg High Court to make an order limiting legitimate display to F genuine artistic, academic or journalistic expression in the public interest — not a complete ban.

2019 (6) SA p328

The A application was opposed by AfriForum, a lobby group that was supported by the FAK [**] as amicus. They argued that the old flag was immune from regulation by s 10(1) of the Act because it referred to 'words', not symbols like a flag, and because its display was protected by the right to freedom of expression in s 16(1) of the Constitution.

The applicants, supported by Johannesburg Pride as amicus, [***] argued that B 'words' in s 10(1) meant all forms of expression, including symbols. The main topics covered by the judgment were the old flag and its meaning, whether it was hate speech and the role of freedom of expression.

Held

This case turned on two things: the meaning of the old flag today and whether C it was hate speech. If it was, then the further question of whether it was a protected expression under s 16 of the Constitution arose (see [25] – [26], [56]).

Historically, the old flag was used to entrench racial segregation and white supremacy (see [32], [44] – [45], [49], [53]). Today its dominant meaning was understood to be an endorsement of apartheid. It was a symbol, both D domestically and internationally, of a racist, authoritarian and repressive past that most South Africans did not want to be associated with (see [57], [74] – [78], [89] – [91]).

The objective of the prohibition in s 10 of the Act was to ban the sort of speech excluded from protection by s 16(2)(c) of the Constitution (see [137]). For E the Act to achieve its purpose of prohibiting all hate speech, 'words' in s 10(1) had to be widely interpreted to apply also to the display of symbols such as flags (see [127] – [135], [139], [163]). Such an interpretation was reasonable (see [131] – [132]); in line with international law and comparative foreign law (see [148] – [159]); took into account the context of the dispute (see [160] – [162]); and ensured that s 10(1) was consonant with the F Bill of Rights and the Constitution generally (see [136] – [147]). In summary, the prohibition on hate speech in s 10(1) applied to the display of the old flag (see [163]).

The old flag's dominant meaning, coupled with the wide meaning attributed to 'words', led to the inevitable conclusion that the gratuitous display of the G old flag constituted, as against black people, the publishing, propagating, advocating or expression of hatred based on prohibited grounds (race and possibly sexual orientation) (see [131], [165]). As such, it constituted prohibited hate speech (see [187]). AfriForum's suggestion that black people should tolerate such displays was inappropriate and constitutionally untenable (see [185]).

In H addition to constituting hate speech under s 10(1), the gratuitous display of the old flag was also discrimination and harassment under, respectively, s 7 and s 11 of the Act (see [190] – [195], [205]).

The defence based on freedom of expression would fail because the display of the old flag amounted to the advocacy of hatred within the meaning of s 16(2) of the Bill of Rights, and was thus excluded from constitutional protection I (see [198] – [199]).

2019 (6) SA p329

Cases cited

Southern Africa A

AfriForum and Another v Malema and Another 2011 (6) SA 240 (EqC): dictum in para [41] applied

Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC) (2010 (5) BCLR 391; [2010] ZACC 4): dicta in B paras [49] – [50] applied

ANC v Sparrow [2016] ZAEQC 1: referred to

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): referred to

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) C (1996 (4) BCLR 449; [1996] ZACC 2): referred to

Brink v Kitshoff NO 1996 (4) SA 197 (CC) (1996 (6) BCLR 752; [1996] ZACC 9): dictum in para [40] applied

Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009 (6) SA 632 (CC) (2009 (2) SACR 477; 2009 (11) BCLR 1105; [2009] ZACC 18): dictum in para [108] applied D

Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) (2014 (8) BCLR 869; [2014] ZACC 16): dictum in para [28] applied

Daniels v Scribante and Another 2017 (4) SA 341 (CC) (2017 (8) BCLR 949; [2017] ZACC 13): referred to

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; E Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) (2000 (8) BCLR 837; [2000] ZACC 8): dictum in para [35] applied

De Lange v Methodist Church 2016 (2) SA 1 (CC) (2016 (1) BCLR 1; [2015] ZACC 35): referred to

De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) (1998 (7) BCLR 779; [1998] ZACC 6): dictum in para [85] applied F

Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) (2011 (7) BCLR 651; [2011] ZACC 6): dictum in para [97] applied

Herselman v Geleba [2011] ZAEQC 1: referred to

International Power Marketing (Pty) Ltd v Searles Industrials (Pty) Ltd 1983 (4) SA 163 (T): dictum at 168H applied G

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) (2000 (2) SACR 349; 2000 (10) BCLR 1079; [2000] ZACC 12): dicta in paras [22] – [23] applied

Islamic Unity Convention v Independent Broadcasting and Others 2002 (4) SA 294 (CC) H (2002 (5) BCLR 433; [2002] ZACC 3): dictum in para [33] applied

Kente v Van Deventer EC 9/13: referred to

Khoza v Saeed and Another [2006] ZAEQC 2: referred to

Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) I (2017 (2) BCLR 152; [2016] ZACC 42): dictum in para [46] applied

Mdladla v Smith [2006] ZAEQC 3: referred to

Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC) (2006 (1) BCLR 1; [2005] ZACC 14): dictum in para [232] applied J

2019 (6) SA p330

Minister of Justice and Constitutional Development and Others v Southern Africa Litigation Centre and Others A 2016 (3) SA 317 (SCA) (2016 (4) BCLR 487; [2016] 2 All SA 365; [2016] ZASCA 17): dictum in para [62] applied

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): referred to

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others B 2000 (2) SA 1 (CC) (2000 (1) BCLR 39; [1999] ZACC 17): dicta in paras [23] – [24] applied

National Director of Public Prosecutions and Another v Mohamed NO and Others 2003 (4) SA 1 (CC) (2003 (1) SACR 561; 2003 (5) BCLR 476; [2003] ZACC 4): dictum in para [35] applied

National Union of Metalworkers of South Africa and Others v Bader Bop (Pty) Ltd and Another C 2003 (3) SA 513 (CC) ((2003) 24 ILJ 305; 2003 (2) BCLR 182; [2003] 2 BLLR 103; [2002] ZACC 30): dictum in para [37] applied

Orange Brand Services Ltd v Account Works Software (Pty) Ltd [2013] ZASCA 158: dictum in para [16] applied

President of the Republic of South Africa and Others v M & G Media Ltd D 2012 (2) SA 50 (CC) (2012 (2) BCLR 181; [2011] ZACC 32): referred to

Rahube v Rahube and Others 2019 (2) SA 54 (CC) (2019 (1) BCLR 125; [2018] ZACC 42): dictum in para [25] applied

S v Makwanyane and Another E 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665; [1995] ZACC 3): dictum in para [262] applied

SATAWU and Another v Garvas and Others 2013 (1) SA 83 (CC) (2012 (8) BCLR 840; [2012] ZACC 13): dictum in para [63] applied

Smith v Mgoqi and Another [2007] ZAEQC 2: referred to

...

To continue reading

Request your trial
1 practice notes
  • Constitutional Law
    • South Africa
    • Juta Yearbook of South African Law No. , March 2021
    • 10 March 2021
    ...l orientation, the SCA had regard to s 9 of the Constitution – the equa lity clause – and 493 2020 (2) SA 124 (SCA).494 4 of 2000.495 2019 (6) SA 327 (GJ).496 2020 (1) SA 587 (GJ).497 South African Human Rights Commission v Qwelane [2017] ZAGPJHC 218; 2018 (2) SA 149 (GJ). Jason Brickhill ......
1 books & journal articles
  • Constitutional Law
    • South Africa
    • Juta Yearbook of South African Law No. , March 2021
    • 10 March 2021
    ...l orientation, the SCA had regard to s 9 of the Constitution – the equa lity clause – and 493 2020 (2) SA 124 (SCA).494 4 of 2000.495 2019 (6) SA 327 (GJ).496 2020 (1) SA 587 (GJ).497 South African Human Rights Commission v Qwelane [2017] ZAGPJHC 218; 2018 (2) SA 149 (GJ). Jason Brickhill ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT