The government says the old SA flag is widely recognised as a symbol that promotes white racial supremacy and can be put in the same category as the swastika.

However, the department of justice admits that current legislation does not technically define the flag as hate speech. The law would need to be amended for it to be classified as such.

Specialist state law adviser Theresa Molomoitime Ross, on behalf of the justice department, filed an affidavit last week in response to the Nelson Mandela Foundation’s Equality Court bid to ban “gratuitous” public displays of the flag on the basis that such displays amount to hate speech.

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