Should the gratuitous display of the apartheid-era flag be considered hate speech? This is the question that the Johannesburg  South Gauteng High Court deputy judge president Phineas Mojapelo grappled with on Monday as he heard an application by the Nelson Mandela Foundation and the SA Human Rights Commission. The foundation wanted the Equality Court to declare that the gratuitous displays of the old flag be constituted hate speech, unfair discrimination and harassment based on race. At issue is the definition of hate speech in Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act), which only restricts the type of expression which may constitute hate speech to “words” only. The commission has asked that if the court holds that Section 10 of the Equality Act is confined to the expression of hate speech by words and not by conduct, the court should declare that the section was unconstitutional in so far as it failed to prohibit hate speech ...

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