Racists display the apartheid flag because they yearn for apartheid South Africa which they used to celebrate, the SA Human Rights Commission’s (SAHRC) Wim Trengove, SC, told the Equality Court on Monday.

The commission made submissions in support of the Nelson Mandela Foundation’s application that the gratuitous display of the apartheid-era flag be declared hate speech.

In February last year, the foundation announced that it had applied for an order declaring that gratuitous displays of the old apartheid flag constituted hate speech, unfair discrimination and harassment based on race.

News24 earlier reported that lobby group AfriForum had said in its court papers that a wide-reaching ban of the old apartheid flag would be an unconstitutional infringement of the right to freedom of expression.

Deputy CEO Ernst Roets told reporters at the court that the display of the flag should not be banned by law, but would be condemned if done in public.

“It depends the context in which the flag is displayed.. we believe it could be condemned, but should not be banned,” said Roets.

He said his group was committed to upholding the right to freedom of expression, while taking active steps to combat genuine hate speech.

On the stand is now the Human Rights Commission’s Wim Trengove. He says his organisation would not have an issue with the display of the #Apartheidflag in meseums or related institutions, but has a serious problem with it being displayed publicly. @TeamNews24 pic.twitter.com/vXSgAA77oM

— Pelane Phakgadi (@PelaneM) April 29, 2019

The Nelson Mandela Foundation, represented by advocate Tembeka Ngcukaitobi said: “AfriForum came as a reluctant respondent.. So why are they opposing the application.”

“On the one hand they are telling the court they’re part of a civilised society and don’t want to offend any feelings and on the other hand, they’re telling the court next time you see this flag, just sit down and reflect on how far your country has gone,” he continued. Ngcukaitobi submitted that the display of the flag was hurtful because it had the capacity to offend, degrade and dehumanise, because it was a symbol of crime against humanity.

Ngcukaitobi asked the court to dismiss any application which may be made seeking to include the “communist flag, the gay pride flag and the ANC flag”.

“[The court] should focus solely on the apartheid flag and dismiss any attempts by AfriForum to engage about any other flag,” said Ngcukaitobi.

One other interested party is the governing party, the ANC. Its Gauteng deputy chairperson Panyaza Lesufi sat in the gallery and observed during proceedings.

He told News24 that AfriForum’s submissions that banning the use of the flag would be tantamount to doing away with freedom of speech, were completely untrue and unfortunate.

“Freedom of expression to insult us? What a very painful freedom,” he said.

“People must not equate reconciliation to stupidity. We reconciled with them because it was in the interest of the country, we are not stupid but tolerant and our tolerance has its own limits,” said Lesufi.

Johannesburg Pride (Lesbian, Gay, Bisexual and Transgender) also made its voice heard.

Advocate Sga’ista Kazee submitted that the flag was “an official symbol of the old state and its use was frozen when SA adopted a new flag in 1994”.

Ngcukaitobi agreed, and argued that AfriForum had created an environment for the display of the SA old flag which reminded SA of previous white privilege.

“The old flag was constituted with racial exclusivity in mind,” he said.

He said while AfriForum had the right to promote its culture, it had no right to promote racism.

The Nelson Mandela Foundation’s chief executive Sello Hatang said that freedom of expression like all other rights, had limitations, and we ask the court to rule that there cannot be a gratuitous display of this flag because of the consequences that it has.

“We are not saying it should not be used at all, like in museums and related places, showing that we also understand the limits of our rights in what we are asking for.”

Twitter users following the court hearings also voiced their thoughts.

PAC, ANC & AZAPO flags aren’t symbols of oppression. They don’t represent a regime that carried out crimes against humanity on people of colour. They don’t represent a deluded ideology of racial supremacy and values at odds with our constitution.

— Eli Alvah (@eli_alvah) April 29, 2019

Because our flags stand for racial inclusion,racial equal & freedom from segregation. Apartheid flag stood for racial segregation,racial discrimination against blacks,unjust laws again black people,the killings & torture against blacks,institutional racism,land dispossession??

— Nkululeko (@NkululekoMunyai) April 29, 2019

APARTHEID FLAG Whoever attached to that doesn’t value the constitution of this country and the work that has been done to reconcile.

— Frank Mgijima (@ThaboMasterP) April 29, 2019

The matter is expected to continue on Tuesday.

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