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The Nelson Mandela Foundation has applied to the Equality Court in Johannesburg for an order that will effectively ban members of the public from flying the “apartheid South Africa” flag.

The foundation said it wants the court to find that “gratuitous displays of the old official flag of apartheid South Africa constitute hate speech‚ unfair discrimination and harassment based on race”.

Its action was prompted by displays of the old flag at demonstrations against farm murders on “Black Monday” in October last year.

“The decision to launch this application comes after years of watching public displays of the old flag and hoping that such behaviour would stop. These displays demonstrably compound the pain experienced by millions of black South Africans who suffered under apartheid and continue to struggle under its legacy‚” it said in a statement.

“.[tooltip id=”4500c2f113202943ff1ae30d00c9d4ac”] [/tooltip].[tooltip id=”4500c2f113202943ff1ae30d00c9d4ac”] [/tooltip]. It became apparent to the Foundation that some South Africans do not fully appreciate that apartheid was a crime against humanity (as the United Nations declared in 1973)‚ and that gratuitous displays of apartheid symbols‚ such as the old flag‚ are a celebration of that crime and a humiliation of its victims.”

While the old flag is undeniably a part of SA history‚ the foundation said “that is where it belongs: in museums‚ documentaries and cathartic creative works”.

“Gratuitous displays of the old flag – which serve no genuine journalistic‚ artistic or academic purpose in the public interest – are not about remembering but rather about forgetting our painful pasts. They do nothing to advance social justice‚ national unity and human dignity – quite the opposite.

“They cannot be protected by our Constitution‚ or defended in the name of tolerance and reconciliation‚ as they demonstrate a total rejection of tolerance‚ reconciliation and all of the values underlying the Constitution‚” the foundation said.

It also referred to Germany‚ which had passed laws specifically criminalising gratuitous displays of Nazi symbols.

“The Foundation is not pressing for criminalisation in relation to gratuitous displays of apartheid symbols. Instead we are using law to discourage their use.”

The Promotion of Equality and Prevention of Unfair Discrimination Act (“Equality Act”)‚ passed in 2000‚ empowers Equality Courts to fashion appropriate remedies for behaviour that undermines equality and human dignity‚ such as apologies‚ community service‚ and sensitivity training‚ it noted.[tooltip id=”4500c2f113202943ff1ae30d00c9d4ac”] [/tooltip]“The Foundation is asking the Equality Court for a resounding declaration that gratuitous displays of the old flag constitute unfair discrimination‚ hate speech and harassment. Such a declaration will establish a basis for holding people accountable.”

In terms of a proposed Prevention and Combating of Hate Crimes and Hate Speech bill that is currently under discussion‚ the penalties for hate speech are severe‚ Raymond Louw‚ vice-president of PEN SA and a former editor of the Rand Daily Mail‚ wrote on BusinessLIVE late last year.[tooltip id=”4500c2f113202943ff1ae30d00c9d4ac”] [/tooltip]“For a first offence a three-year jail term or a fine‚ not defined but according to commentators likely to be heavy‚ can be imposed and for a second offence the prison sentence can be 10 years or a commensurate fine‚” he said.[tooltip id=”4500c2f113202943ff1ae30d00c9d4ac”] [/tooltip]“Punishment for hate crime is more variable‚ being subject to legal and court jurisdiction‚ but the severity of the maximum is even more daunting‚ extending in some instances to a life sentence.”

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