A team of Pro Bono lawyers from Baker McKenzie in Johannesburg, led by Darryl Bernstein, Partner and Head of the Dispute Resolution Practice in Johannesburg, and supported by Lerisha Naidu, Partner and Head of the Competition & Antitrust Practice in Johannesburg, successfully represented the Johannesburg Pride in the Equality Court case between the Nelson Mandela Foundation and Afriforum. The case concerned the issue of whether displays of the old South African flag should be considered hate speech, or whether these displays should be permitted due to the Constitutional right to freedom of expression.
The Nelson Mandela Foundation argued that “gratuitous displays” of the apartheid-era flag should be legally considered hate speech. They were supported by the South African Human Rights Commission (SAHRC), as well as Johannesburg Pride. The Forum sought an order that any display of the old flag that does not serve any genuine artistic, journalistic or academic purpose in the public interest ought to constitute hate speech, unfair discrimination and/or harassment.
Afriforum argued that the displaying the flag did not constitute hate speech because only words and not symbols or images constituted hate speech in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, and in any event ought to be constitutionally protected expression under section 16 of the Constitution.
Judge President Phineas Mojapelo ruled that that public displays of the old South African flag, besides being racist and discriminatory, demonstrates a clear intention to be hurtful, to be harmful and to promote and propagate hatred. He went on to find that displaying the old flag in the face of most South Africans who recoil from it also goes beyond hate speech and constitutes harassment. Finally, Judge President Mojapelo expressly pointed out that his judgment is not a banning order against the old flag; rather, it confines displays of it to genuine artistic, journalistic or academic expression. Displays beyond this may be brought before the Equality Court for the displayer to defend the display.