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.

dvi “Such conduct should be condemned in the strongest terms as it imputes to those hoisting the old flag that they reminisce and long for the days when the old flag was the national flag of the country between 1928 and 1994. This is also the period during which the system of apartheid was government policy in the country, a system determined to be a crime against humanity.” But, she says, the Promotion of Equality and Prevention of Unfair Discrimination Act, which currently defines hate speech, is limited only to words that “demonstrate a clear intention to be hurtful, be harmful or to incite harm, promote or propagate hatred”. She says the government supports an application by the SA Human Rights Commission, as part of the old flag case, to have this section of the act declared unconstitutional and amended so that symbols like the flag can be defined as hate speech. Ross also says the government’s new hate speech bill, which is yet to be passed into law, defines communication of h...

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