Kahiu v. Mutua
Closed Contracts Expression
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The South African Equality Court ruled that gratuitous displays of the old national flag constitutes hate speech, unfair discrimination and harassment. The case had been brought by a non-governmental organization after a protest march in 2017 had included the display of the old flag, and the Foundation argued that these displays brought back painful memories of the inhumane apartheid system. An Afrikaans interest group opposed the application, arguing that the prohibition against hate speech in South African legislation applied only to verbal communication and so did not cover the physical display of a flag. The Court held that in order to give effect to the spirit of the Constitution, the purpose of the legislation and international legal obligations, hate speech must be interpreted to include the display of a flag. It held that the objective meaning and “the gratuitous display of the Old Flag visually communicates a measure of the belief in or support of racism, white supremacy and the subjugation of the black population.” [para. 78] The Court ruled that as hate speech the displays of the old flag therefore did not constitute protected speech under the South African constitutional system.
On October 30, 2017, a series of demonstrations were held around South Africa to protest against farm murders and violent attacks against farmers. The demonstrations, dubbed “Black Friday”, were supported by Afriforum, a non-profit company in South Africa which seeks to act as a “credible Afrikaner interest organization and civil rights watchdog” and the old South African national flag (the old flag) was displayed by certain protesters. This flag had been introduced on May 31, 1928 to replace the Union Jack and was used throughout apartheid until it was abolished on April 27, 1994. The old flag had been adopted as a way to demonstrate unity between the English-speaking and Afrikaans community in South Africa and to sever ties with imperial Britain. It featured the flags of the Union Jack, the former Boer republics in the Transvaal and Oranje Vrystaat on the background of the Dutch Prince’s flag. Black South Africans had no vote at the time the old flag had been adopted and had no input in the discussions around the need for, and the design of, a flag to replace the Union Jack.
Following the Black Friday demonstrations, the Nelson Mandela Foundation Trust (the Mandela Foundation) filed a complaint with the Equality Court, arguing that any contemporary display of the old flag that “does not serve any genuine journalistic, academic or artistic purpose in the public interest (ie.’gratuitous display’) constitutes, as against black people … hate speech … unfair discrimination … and harassment” under the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (the Equality Act). [para. 4] The Mandela Foundation was established by former president Nelson Mandela in 1999 after he retired from public office and states its mission as “to contribute to the making of a just society by promoting the legacy of Nelson Mandela, providing an integrated public information resource on his life and times, and convening dialogue around critical social issues.” [para. 16]
The South African Human Rights Commission (the SAHRC), a body established by the Constitution to support constitutional democracy, supported the Mandela Foundation’s application.
Afriforum opposed the application, maintaining that the prohibition on hate speech in the Equality Act applied only to verbal expressions. The Department of Justice and Constitutional Development (the Department) and its Minister were cited as respondents in the matter as a result of the SAHRC’s argument that if the Equality Act was interpreted to apply only to verbal hate speech then it would be underinclusive and therefore unconstitutional.
The LGBT+ organization, Pride, was admitted as an amicus curiae after Afriforum used the gay pride rainbow flag as an “example for symbols for which a precedent might be set for their suppression.” [para. 20] The Federasie Van Afrikaanse Kultuurvereniginge (FAK) was also admitted as an amicus curiae. FAK, founded in 1928, is the “oldest Afrikaans cultural organization in South Africa” and seeks the “advancement of Afrikaans and the Afrikaner culture and history.” [para. 21]
The matter was heard by the Equality Court, sitting also as the High Court, in Johannesburg.
Deputy Judge President Mojapelo delivered the judgment of the Court. The central issue before the court was whether the display of the old flag constitutes hate speech and then, if the court found that it did, whether the display is protected by the right to freedom of expression. [para. 26]
The Mandela Foundation argued that the gratuitous display of the old flag constituted hate speech under section 10 of the Equality Act, unfair discrimination under section 7 of the Equality Act and harassment under section 11 of the Equality Act. The CEO of the Mandela Foundation, Sello Hatang, described how displays of the old flag brought back painful memories of his own experiences during apartheid because “the Old Flag represents nothing other than the inhumane system of racial segregation and subjugation that governed South Africa before 27 April 1994.” [para. 23] He added that “[t]o hear that the Old Flag had been displayed gratuitously in 2017, more than a generation after apartheid had been abolished, reminded me that some South Africans still see me and other black people as ‘other’ and would deny us the opportunity just to be human” and that individuals who display the old flag “have no concern or compassion for the suffering that the majority of South Africans endured during apartheid and continue to bear as a result of apartheid.” [para. 23]
The SAHRC, the Department and Pride supported the Mandela Foundation’s submissions. Pride added concerns from the LGBT+ community and described how that community experienced contemporary displays of the old flag.
Afriforum argued that section 16(1) of the Constitution protects the right to display the old flag, and that section 10 of the Equality Act “expressly regulates ‘words’ and as such does not apply to other forms of expression like symbols.” [para. 5] Although it acknowledged that there can be harm experienced when the old flag is displayed, Afriforum maintained that South Africa has moved beyond apartheid and that when Mr Hatang next sees the old flag “he could use the opportunity to reflect on how far we have moved as a nation.” [para. 25]
FAK supported Afriforum’s position and argued that the old flag should not be “banned.” [para. 10]
The Court acknowledged that it was common cause that Hatang’s experience when seeing the old flag reflected the reality of other black people’s experience and that his experience could have been that of “any other black person to whom apartheid rule and oppression represented a painful reality.” [para. 24] It concluded that the painful harm emerging from the display of the old flag is real and needed to be accepted as fact. The Court criticised the “terse acknowledgment” by Afriforum of the fact that the display of the old flag causes harm and commented that there had been “no engagement with the emotional and historic facts articulated here.” [para. 25]
The Court referred to Constitutional Court jurisprudence which had held that historical context must be used when interpreting the Bill of Rights, and quoted Rahube v. Rahube 2019 (1) BCLR 125 (CC) which noted that the equality clause in the Constitution had to be interpreted in light of the systematic discrimination under apartheid and its “enduring legacy.” [para. 29]
Accordingly, the Court examined the history of the old flag so as to assess its objective meaning and the effect of the display on the rights to equality and dignity. In providing a historical context the Court emphasized that the Union Nationality and Flag Act, 1927 which introduced the old flag was adopted alongside the Immorality Act which outlawed “illicit intercourse between Europeans and natives” and the Native Administration Act which made the Governor-General the “supreme chief of all natives”, allowing him to control how black people occupied and used land and settled disputes. [para. 43] The Court noted other bills introduced shortly afterwards that further limited black South Africans’ rights and stated that “[v]iewed in this context, the Flag Act was part of a scheme of statutes that were intended to entrench, and in fact did entrench, racialised segregation and white supremacy.” [para. 44] Although the old flag had been introduced before the adoption of apartheid in 1948, it was maintained throughout the apartheid years. The Court characterized the old flag as a “vivid symbol of white supremacy and black disenfranchisement and suppression”, and referred to the Mandela Foundation’s submission that by including only the flags of Britain, the Netherlands and the Boer Republics it “excluded black people from any sense of national belonging in the land of their birth.” [para. 45] The Court described the use of the old flag following the end of apartheid as “controversial” and “divisive” and noted that “some people view[ed] it as historic and a proud symbol of Afrikaner-English unity and heritage, while others view it as a symbol of oppressive apartheid and white supremacy.” [para. 49]
The Court used trademarks law to determine the objective meaning of the old flag and noted that this “will entail an inquiry into whether a dominant meaning exists or through an evaluation of ‘the main idea or impression left on the mind’ as a recipient viewer of the expression.” [para. 57] It also referred to Afriforum v Malema 2011 (6) SA 240 (EqC) which had used defamation law and applied a test of whether a “reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning” and held that a court has to take into account the implication of words as well as their express meaning. The Court emphasized that this approach acknowledges the possibility of multiple meanings for a particular expression and seeks to arrive at the dominant or series of dominant meaning. [para. 59]
The Court set out the meaning that each party assigned to the old flag: the Mandela Foundation, the SAHRC and the Department of Justice all highlighted the way in which the flag was seen as a symbol of apartheid; Afriforum recognised this association and that “most South Africans recoil from the old flag and openly denounce Apartheid as a crime against humanity” [para. 69]; and FAK maintained that the old flag could be viewed in a way that does not celebrate apartheid and as a symbol of reconciliation between English- and Afrikaans-speaking communities which meant it could be displayed in “an appreciation of its culturally historic value.” [para. 71] The Court also considered the international dominant meaning of the old flag and recognized that apartheid is still considered an international crime against humanity. It accepted the SAHRC’s submission that the old flag is seen as an “internationally understood symbol of white supremacy” because of its image as an international symbol of apartheid. [para. 88] In reaching this conclusion the Court made reference to the Department of Justice’s submission that the old flag has been used by white supremacists such as Dylann Roof on the day he shot and killed nine black people in South Carolina in 2015.
The Court stressed that even FAK accepted that the meaning of the old flag as a symbol of apartheid existed even though it argued that there were other meanings capable of being viewed. [para. 70] The Court questioned why FAK could not see that “reconciliation between white Boers and white British and which excludes black people is simply racist.” [para. 72] The Court referred to City of Tshwane Metropolitan Municipality v. Afriforum 2016 (6) SA 279 (CC) which had emphasized that even though Boer-British reconciliation may be capable of appreciation for its historic value, this could not qualify for constitutional recognition. Accordingly, the Court rejected FAK’s alternative meaning and held that such a meaning “has no place in the current democratic inclusive society” because of how those two groups continued to oppress the African population in South Africa following their own reconciliation. [para. 80]
The Court found that the dominant meaning of the display of the flag is “an endorsement of the system of apartheid” [para. 75] and that “the gratuitous display of the Old Flag visually communicates a measure of the belief in or support of racism, white supremacy and the subjugation of the black population.” [para. 78] The Court accepted the Mandela’s Foundation’s definition of “gratuitous” as “any display that does not serve any genuine journalistic, academic or artistic purpose in the public interest.” [para. 56]
In examining the meaning of hate speech, the Court stressed the ordinary grammatical meaning of the term as “speech that expresses hatred towards a person or his or her group based on race or other attributes such as religion, sex, ethnicity, sexual orientation and the like.” [para. 94] Although this definition may include the encouragement of violence, it does not necessarily include such incitement. Section 10(1) of the Equality Act states that: “Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person that could reasonably be construed to demonstrate a clear intention to (a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred.” Prohibited grounds are defined broadly in section 1 of the Equality Act and include race and sexual orientation as well as “any other ground where discrimination based on that other ground causes or perpetuates systemic disadvantage or undermines human dignity.” Section 12 is an exclusion based on “bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution [which] is not precluded by the section”.
The Court explained that it would analyze the question of whether a gratuitous display of the old flag constitutes hate speech under section 10(1) through a legal interpretative framework, looking at the Constitution, international law, the Equality Act and comparative foreign law. Section 39 of the Constitution obliges courts to interpret legislation in a way that promotes the “spirit, purport and objects of the Bill of Rights”, and the Court stated that it is obliged to interpret legislation in accordance with the Constitution “to the extent that the text is reasonably capable of bearing such a meaning.” [para. 106] In addition, section 39(1)(b) of the Constitution requires that a court use international law as an interpretive aid and section 39(1)(c) provides that courts may consider foreign law and the Court noted that “South African jurisprudence does not develop in isolation to other comparable legal systems, though our courts are not bound by their jurisprudence.” [para. 114] The objects of the Equality Act are to, inter alia, give effect to the spirit of the Constitution and specifically the equal enjoyment of rights and freedoms, the prevention of unfair discrimination and the prohibition of advocacy of hatred.
The Court rejected Afriforum’s literal interpretation of section 10 which argued that the provision prohibits only “words” and so cannot be extended to the display of the old flag. The Court stated that such an interpretation does not give effect to the principles of interpretation, and held that “words” must be given a “generous and wide meaning going beyond mere verbal representations.” [para. 128] In coming to this finding, the Court noted that the heading of section 10 is “Prohibition of hate speech” and that “speech” includes “all forms of expression of ideas” because the essence of speech is communication. [para. 129] In addition, the Court found that because “words” on a literal meaning cannot be advocated, the prohibition against words that propagate hatred must be interpreted to refer to a broader understanding of words that includes ideas. The Court emphasized that it is the meaning behind the words that is communicated, and so words are merely a medium for communication. Accordingly, the Court held that “’words’ in section 10(1) of the Equality Act may be interpreted to mean “ideas, ideologies, beliefs, instructions etc conveyed by the words.” [para. 132] The Court also noted that a literal understanding of “words” in the Act could not make sense when looking at section 12’s reference to artistic creativity.
Section 16 of the Constitution protects the right to freedom of expression but section 16(2) excludes “advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm” from that protection. The Court identified that the phrase “advocacy of hatred” appears in both section 16 of the Constitution and the Equality Act and noted that the meaning must be the same in both provisions. The Court held that the prohibition against hate speech in section 10 of the Equality Act is intended to give effect to section 16(2) of the Constitution, and, with reference to Islamic Unity Convention v. Independent Broadcasting 2002 (4) SA 294 (CC), explained that hate speech does not constitute protected speech under the Constitution. The Court held that the intention of section 16 of the Constitution was to prohibit all hate speech, and so the Equality Act had to be read as meaning a broad interpretation of “words” because if it prohibited only a literal understanding of “words” if would not give effect to the Constitution.
The Court held that the interpretation offered up by Afriforum was untenable and unsustainable. It noted that if it did confer a literal interpretation on “words” it would not be giving effect to the constitutional protection of equality and dignity because it would not be “adequately protecting the rights to dignity and protection against unfair discrimination of people who are subjected to hateful communication expressed in a form other than words.” [para. 141] The Court stressed that the “right to freedom of expression must be realised in a manner that does not violate the dignity of others” [para. 146] and referred to an example provided in the hearing of how this narrow interpretation would result in absurd situations: the Equality Act would prohibit the calling of a black individual a “baboon” but not the circulation of a photograph of a black individual’s face superimposed on a baboon. The Court held that such an interpretation “runs counter to the objects of the Act” [para. 141] and irrationally distinguishes between hate speech by language and by other means by only prohibiting hate speech by language, and would also be incapable of ensuring that all forms of unfair discrimination were prohibited as set out in section 9 of the Constitution (which protects the right to equality). The Court held that restricting the prohibition of hate speech to only “words” would not achieve the purposes of the Equality Act and so would be irrational and unlawful.
With reference to article 20 of the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination – which prohibit “any advocacy of racial hatred” and “all incitement to, or acts of, such discrimination” respectively, the Court stressed that South Africa is obliged to comply with the broad understanding of hate speech under those international law provisions.
In applying comparative foreign law, the Court referred to the US cases of Spence v. Washington 418 U.S. 405 (1974), Texas v. Johnson 491 U.S. 397 (1989) and West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943) which had held that the “First Amendment extends to non-verbal conduct, including the display of the national flag.” [para. 155] The Court quoted the Barnette case which noted that symbols of state, such as flags, “often convey political ideals just as religious symbols come to convey theological ones.” [para. 157] Accordingly, the Court accepted the American jurisprudence and held that symbols communicate just as words communicate.
The Court confirmed that the Equality Act requires a court to take into account the context of the dispute and the purpose of the Act when interpreting the Act. It explained that the context in this case was that the display of the old flag is “extremely hurtful and dehumanising to those who suffered under apartheid”, that the message communicated by displays of the old flag “indicates a symbol of support for and promotion of racist ideologies” and that this communication then “promotes hatred and harm towards those who suffered and continue to suffer as a result of [the apartheid] regime and has the potential to diminish their suffering to indicate a support for such suffering.” [para. 161] Accordingly, the Court held that by having regard to this context an interpretation of section 10 “should not limit the scope of the prohibition of hate speech … to literally only ‘words’, thereby allowing expressions of hatred in non-verbal forms to escape prohibition.” [para. 162]
The Court concluded that a reasonable interpretation, in accordance with the objects of the Act and international and foreign law, taking into account the context of the dispute, meant that ‘words’ in section 10 could not be read literally and “must be interpreted to be wide enough to include expression of ideas such as the waving of a flag.” [para. 163] Accordingly, it held that “the prohibition against hate speech in section 10(1) applies to and regulates the waving of the Old Flag.” [para. 163] The Court commented that Afriforum and FAK’s literal interpretation of ‘words’ “could not have been intended by the legislature because it is contrary to the objects of the Equality Act itself.” [para. 164]
The Court held that the “conclusion reached regarding the dominant meaning of displaying the Old Flag and the wide interpretation that is given to ‘words’ in section 10(1) lead to the inevitable conclusion that the gratuitous display of the Old Flag constitutes, as against black people, the publishing, propagating, advocating or communication (expression) of hatred based on prohibited grounds (ie. race and possibly sexual orientation).” [para. 165]
The Court then examined the question of the “clear intention” that could be reasonably construed from the gratuitous display of the old flag, and described the question before it as whether there was “evidence or a base to hold that the gratuitous display of the Old Flag can reasonably be construed to demonstrate the clear intent required in section 10(1).” [para. 166]
Afriforum had argued that different people may have different intentions when they display the old flag, and that any potential regulation of displays would have to be done on a case-by-case basis. The Court rejected this approach and held that the clear intention test is an objective one and that the subjective intention of the displayer of the old flag is irrelevant. The Mandela Foundation had testified that the intention Mr Hatang imputes to the display of the old flag is that the displayers “have no concern or compassion for the suffering that the majority of South Africans endured during apartheid and continue to bear as a result of apartheid.” [para. 170] The SAHRC described the display as “asserting one’s affinity with, endorsement of and mourning for the apartheid regime which resulted in the undignified, degrading and detestable treatment of black people.” [para. 171] The Department also testified that the display “imputes to those hoisting [it] that they reminisce and long for the days when the Old Flag was the national flag.” [para. 172] Pride described the display as creating a “hostile and intimidating environment” for the LGBTI community.
The Court emphasized that neither Afriforum nor FAK denied the effect of the display of the old flag on black and LGBTI communities, but they did oppose the statement that this display then constituted hate speech. The Court referred to Afriforum’s concession that displaying the old flag “has the capacity to cause offence and emotional stress” and FAK’s acknowledgement that the display is “frowned upon and actively discouraged.” [para. 174-175]
The Court concluded that, given Afriforum and FAK’s concessions that most South Africans “recoil” from the old flag and denounce apartheid, the clear intention of displaying the old flag must be to “hurt, harm and incite hatred and the most negative feelings against ‘most South Africans’” [para. 176]. The Court therefore held that the display of the old flag demeans and dehumanises people on the basis of their race as “[t]here could be no other decent intentions behind waving the Old Flag gratuitously other than to cause a recall of painful memories” [para. 183].
The Court noted that Afriforum’s submission that “black people should either tolerate or use incidences of such displays ‘as an opportunity to reflect on how far we have come as a nation’ is insensitive in the extreme, destructive of human dignity and equality and constitutionally untenable.” [para. 185] The Court stressed that anyone should be wary of telling victims how to experience their pain.
In respect of displays of the old flag in private, the Court commented that there were hardly any spaces that were truly private and that as many black people are employed and exposed in other ways to such spaces this display would also be impermissible. In addition, the Court stressed that private displays may expose others – including children – to the idea that apartheid was acceptable.
The Court held that gratuitous displays of the old flag constitutes harassment under section 11 of the Equality Act as “displaying the Old Flag in the face of most South Africans knowing that they recoil from it can only constitute harassment.” [para. 192] It also held that displays of the old flag would constitute unfair discrimination as it “propounds racial superiority and promotes racial exclusivity.” [para. 195]
The Court rejected Afriforum’s argument that the display of the old flag was protected by section 16 of the Constitution as the protection expressly excludes hate speech: as the Court had found that gratuitous displays of the old flag constituted hate speech, such displays were therefore not protected speech under section 16.
The Court therefore declared that the display of the old flag at Black Friday and any other displays of the old flag constituted hate speech, unfair discrimination and harassment under the Equality Act.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The South African Equality Court ruled that the display of the old national flag represented the inhumane system of apartheid and constituted hate speech and therefore did not fall within the protection of freedom of expression under the Constitution. This judgment balances the right to freedom of expression with the rights to equality and dignity in the Constitution and highlights the link between this flag and local and international white supremacist movements.
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