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[1]             This case brings into sharp focus the potency of a symbol of the cruel ideology of apartheid, infamous for its assault on the dignity, freedom and equality of black people. The main issue is whether the gratuitous display of that symbol – the former South African flag (the old flag) – is harmful, incites harm, and promotes and propagates hatred within the meaning of s 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act).

[2]             The appellant, Afriforum NPC (Afriforum), played a leading role in nationwide demonstrations to protest against the murder of farmers, held on Monday, 30 October 2017. They were called ‘the Black Monday protests’. It was widely reported in the mainstream and social media that at some of these protests, the old flag was displayed. These incidents led to a complaint against Afriforum lodged by the first respondent, Nelson Mandela Foundation Trust (NMF), with the Gauteng Division of the High Court, Johannesburg, sitting as an Equality Court (the high court), that the display of the old flag at the Black Monday protests was a contravention of the Equality Act.

[3]             The second respondent, the Minister of Justice and Constitutional Development (the Minister), and the third respondent, the Department of Justice and Correctional Services, were joined as parties in the proceedings in the high court. They were joined by the fourth respondent, the South African Human Rights Commission (SAHRC), when it applied for an order declaring that s 10(1) of the Equality Act was unconstitutional and invalid, to the extent that it restricted the conduct proscribed by s 10(1) to ‘words’ only.

[4]             The high court (Mojapelo DJP) did not issue the declaratory order sought by the SAHRC. The court interpreted s 10(1) broadly and purposively in the light of the objects of the Equality Act, namely that the prohibition of hate speech includes any expression of ideas, whether by words or conduct. This interpretation was confirmed by the Constitutional Court in Qwelane.[1] The high court determined that the display of the old flag at the Black Monday protests constituted hate speech, unfair discrimination and harassment, within the meaning of ss 10(1), 7 and 11 of the Equality Act. All the parties participated in the appeal, save for two amici curiae that had been admitted by the high court. The appeal is with the leave of this Court.