South Africa

Derechos Humanos / Human Rights

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South Africa court declares display of apartheid-era flag hate speech

Source: Jurist

August 22, 2019

South Africa’s Equality Court ruled Wednesday that the gratuitous display of the apartheid-era national flag constitutes hate speech.

The Nelson Mandela Foundation (NMF) sought “an order declaring that any display of the Old Flag that does not serve any genuine journalistic, academic or artistic purpose in the public interest” constitutes hate speech, unfair discrimination, and harassment of black people under the Equality Act.

This case was brought following Black Monday, on October 30, 2017, where public demonstrations against farm murders and violence against farmers took place and the Old Flag was displayed. These demonstrations sparked a debate about the use of the Old Flag, which led to the NMF filing the complaint in the present case.

The case focuses on two things: the Old Flag, and hate speech and freedom of expression.

Judge Phineas Mojapelo discussed each of the issues in turn, first stating that: “The Old Flag must be interpreted against its history and meaning in order to ascertain its objective meaning(s) and thus to asses the effect of its display on the rights to dignity and equality.”

The adoption of the Old Flag in 1927 served the purpose of severing ties with imperial Britain, and as a symbol of unity between English and Afrikaans speakers. Africans and other people of color were excluded from the discussion and subsequent adoption of the Old Flag. “The Flag Act was part of a scheme of statutes that … [entrenched] racialized segregation and white supremacy.” The Old Flag was replaced in 1994 as part of the republic’s transitional constitution and the end of apartheid.

In determining whether the display of the Old Flag legally constitutes hate speech under the Equality Act, Mojapelo said that section 10 of the Act “should be interpreted in a manner that prohibits all expressions of ideas, verbal and otherwise (including the displaying of a flag), that amount to hate speech.”

It is determined that the display of the old national flag of South Africa, introduced from 31 May 1928, and used throughout apartheid until it was abolished on 27 April 1994, at the “Black Monday” demonstrations on 30 October 2017 constituted: hate speech, unfair discrimination on the basis of race, and harassment. Further, it is determined that any display of the Old Flag constitutes hate speech, unfair discrimination on the basis of race, and harassment.

The Nelson Mandela Foundation issued a statement following the judgement, calling the Old Flag a “globally recognized symbol of white supremacy, exclusion and hatred,” and celebrating the ruling as an affirmation of South Africans’ rights to dignity and meaningful freedom of speech.


Derecho Constitucional / Constitucional Law

Posted on Actualizado enn

south africaSouth Africa Constitutional Court invalidates protest law          

Source: Jurist

November 20, 2018

The Constitutional Court of South Africa ruled Monday that a law that criminalized failure to give notice to a municipality of a gathering of more than 15 people is unconstitutional.

The court found that the law violated the guarantee of Section 17 of the Constitution that “[e]veryone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” Leer el resto de esta entrada »

Work On! Constitutional Court of South Africa invites applications for foreign law clerks (rolling deadline)

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The Justices of the Constitutional Court of South Africa are pleased to invite applications from outstanding recent law graduates and young lawyers interested in serving as foreign law clerks.  Candidates may be appointed to start as soon as 1 July 2014.


South Africa continues to be regarded as one of the most intriguing and compelling examples of constitutionalism in the transition to democracy.  Its Constitution is viewed as one of the world’s most progressive founding charters. Leer el resto de esta entrada »