03/03/2018 10:32 SAST | Updated 03/03/2018 10:33 SAST

'Banning Things Is Not The Answer' – Lawyers Weigh In

"This is what the old order was doing – everything that did not make them happy, they banned,"

Reuters Photographer / Reuters
A South African cricket fan waves an apartheid-era South African flag at a Test match against New Zealand on November 21, 2000, in Bloemfontein.

Advocate Dumisa Ntsebeza says South Africa cannot go back to the tradition of banning symbols.

"I don't believe we should ever go back to an era where we start banning things. There should be a level of tolerance, and the law is clear. Our law provides the widest latitude for people to express themselves," he said.

He explained that although apartheid was declared a crime against humanity, simply banning the flag is not necessarily the answer.

"I do not know if that's the remedy – I think that is why it has never been banned before. It should promote debate – as long as the debate does not deteriorate into violence," Ntsebeza said. "[Banning] is what the old order was doing – everything that did not make them happy, they banned."

"It has played a significant role in South African history."

Lawyer and former MP Leon Wessels says the flag is part of the country's history.

He said banning the flag would be "short-sighted" and "will not solve anything".

"It has played a significant role in South African history. Things come and go. Whether it is an old flag or a new flag, you must have respect for it. I am just as proud of the old flag as the new flag," he claimed.

He does acknowledge that it is a painful symbol for black South Africans.

"I accept that it could be hurtful, much like the Afrikaner found the Union Jack offensive a century ago. I totally acknowledge their concerns with the flag."

The Nelson Mandela Foundation (NMF) has begun a bid to have the act of displaying the old South African flag decreed hate speech.

"These displays demonstrably compound the pain experienced by millions of black South Africans who suffered under apartheid and continue to struggle under its legacy. Displays of the old flag at demonstrations against farm murders on "Black Monday", October 30, 2017 – at least two of which were verified – persuaded us that the time had come to act," the foundation said in a statement.