AfriForum is on Wednesday appealing the finding that the gratuitous display of the old South African flag is hate speech. 

They feel that the Equality Court's order is too over-reaching.  

Lawyer Mark Oppenheimer submitted that the ruling of 2019 does not take into account conduct that is not unlawful.

"All public bans which don't meet the provision [of hate speech] is overbanning," he argued.

He gave the example of protesters carrying the flag to demonstrate how hateful apartheid was, and then setting it alight as a form of protest. 

"The flag can bear a certain meaning, but the context tells you whether it amounts to hate speech."

Courts had already spoken out to say that there were benefits to be had in allowing people to express their views in a way that avoided potential violence, Oppenheimer said.

Free speech also provided clues to the temperature of society. He said the National Party had banned free speech to control people, but it had "backfired spectacularly".

"There are instances that clearly don't amount to hate speech.

"Just because the flag has a particular dominant meaning, doesn't mean that the display of that, endorses it," he said.

The appeal which is being heard in the Bloemfontein High Court, is being livestreamed by eNCA. 

The Nelson Mandela Foundation and the SA Human Rights Commission took the case to the Equality Court, asking that the gratuitous display of the flag be stopped.

Handing down judgment in August 2019, Judge President Phineas ruled that the display of the old flag gratuitously demeaned and dehumanised, based on race and impaired dignity.

He found that the gratuitous display amounted to prohibited hate speech, unfair discrimination and harassment.

AfriForum is worried that this will have far-reaching consequences for freedom of speech.

The Nelson Mandela Foundation argued in 2019 that the display of the flag was a symbol of white supremacy, which was degrading and dehumanising to black people.

Oppenheimer said on Wednesday: "The system of apartheid invaded everyone's dignity to different degrees. It's an incredibly sinister system. And yes, in other words, the dominant meaning of the flag is that it represents that system."

However, he argued, the flag could be used to denounce another party and accuse them of racism, or oppression, but it is not necessarily an endorsement of apartheid. 

The new South African flag was designed by a former State Herald, Fred Brownell, and was symbolically first raised on 27 April 1994.

The appeal continues.