AfriForum is opposing an application by the Nelson Mandela Foundation, which is seeking a declaratory order that any "gratuitous display" of the old flag constitutes hate speech and harassment.

Advocate Ben Winks, who represents the foundation, told News24 on Wednesday that the hearing date has not yet been confirmed. The parties are expected to finalise the timetable by next week.

In its answering affidavit, AfriForum said it was committed to upholding the right to freedom of expression, while taking active steps to combat genuine hate speech.

AfriForum stated in their papers that they acknowledge that the old flag has the capacity to cause offense and emotional distress.

"As an organisation, we have no particular love for the flag or what it represents," it said.

"In the exceptionally rare instance that anyone participating in one of our events brings an old flag with them, we ask them to put it away."

The lobby group said there may be circumstances where displaying the old flag amounted to advocacy of hatred.

It argued, however, that it would not be so in all the cases that the Nelson Mandela Foundation seeks to prohibit.

"By way of analogy, it may be thought that anyone who burned the new South African Flag was motivated by hatred towards black South Africans and a desire to reinstitute apartheid," it said.

"Displaying the old flag is not speech, nor does it amount to a call for action, nor does it meet the threshold of incitement to cause harm. Most South Africans recoil from the old flag and openly denounce apartheid as a crime against humanity.

"Whenever anyone waves an old flag, it is an opportunity to engage that person and persuade them of the error of their ways."

It said the next time that the chief executive officer of the Nelson Mandela foundation, Sello Hatang, heard about the old flag being waved, "he could use the opportunity to reflect on how far we have come as a nation".

In his affidavit, Hatang said the old flag represented nothing other than the "inhumane system of racial segregation and subjugation" that governed the country before April 1994.

On October 30, 2017, concerned citizens marched to protest against farm murders in the country, declaring the day Black Monday.

There was a circulation of images on social media, which included protesters reportedly waving the old apartheid flag and burning the new South African Flag at various protests.

The protest was criticised on social media, with some commentators saying that the march was racially skewed.

"To hear that the old flag had been displayed gratuitously in 2017, more than a generation after apartheid had been abolished, reminded me that some South Africans still see me and other black people as 'other', and would deny us the opportunity just to be human.

"They have no concern or compassion for the suffering that the majority of South Africans endured during apartheid and continue to bear as a result of apartheid," Hatang said.

News24