Johannesburg high court deputy judge president Phineas Mojapelo set judicial precedent when he interpreted the Equality Act to mean that hate speech was not limited to words. Gestures — such as waving a flag — could also amount to hate speech .
In a precedent-setting judgment, the judge found that hate speech extends beyond using offensive words to gestures
The case was taken to court by the Nelson Mandela Foundation Trust, after reports that the apartheid flag was waved at a #Blackmonday demonstration in 2017 against farm murders.
Mojapelo said that, objectively determined, the intention of those waving the apartheid flag was clear — it was to “incite and awaken feelings of white supremacy against black people”.
AfriForum’s response was to say that South Africa has moved on and it was hoped that the next time Hatang saw the apartheid flag, he could “use the opportunity to reflect on how far we have come as a nation”.
In deciding whether the hate speech prohibition applied to more than just words but to gestures and other forms of expression, Mojapelo considered the purpose of the Equality Act, the historical context, the Bill of Rights, international law and foreign law. He concluded that a “literal interpretation” of the Act, as AfriForum argued for, failed to have regard to this legal framework.Read more: Mail & Guardian
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