The Faculty of Law congratulates Nicholas Herd, a final year LLB student at the University of Pretoria (UP), on being the recipient of the 2019 University of Pretoria Yunus Mahomed Public Interest Award (YMPIA) for his publication ‘Should the flag fit, or must we acquit?’  This achievement puts Herd in the running for the National Yunus Mahomed Public Interest Award which is to be awarded later this year.

The YMPIA is conferred annually on students at some of the leading higher education institutions in South Africa for publications in law, as well as business ethics. For 2019, the Award Committee determined that Herd’s article was the best public interest article from a UP student published in an acknowledged peer reviewed journal — in this case, the Pretoria Student Law Review (PSLR).

The primary objective of the award is to incentivise students to write and practice in public interest fields in order to, as Head of the Award Committee, Judge Dhaya Pillay  puts it, ‘cultivate a constitutional consciousness and scholarship.’

Judge Pillay commented on Herd’s contribution as follows: “’Should the flag fit, or must we acquit?’ is a thoughtful contribution to regulating the right to freedom of expression. [It] interrogate[s] whether displaying the old South African flag constitutes hateful speech.  Finding flaws in the constitutional framework, [Herd] urge[s] Parliament to amend the Promotion of Equality and Prevention of Unfair Discrimination Act to provide clarity."

Herd expressed his appreciation to all of those helped him cross the finish line in publishing the article, making special mention of Primrose Karusha (the 2019 Editor-in-Chief of the Law Review), and Prof Anton Kok ‘who patiently and insightfully engaged with [Herd]’.

'I would like to thank the Award Committee for the recognition. Being selected for the award was a surprise and one for which I am immensely grateful.

Admittedly, there were periods during drafting when I was ready to throw in the towel. Hate speech regulation in South Africa is a sensitive and emotionally charged topic — and rightfully so. I had many discussions wherein people, who I respect and trust, vehemently disagreed with the positions that I assumed. For long a while I vacillated between diametrically opposing positions trying to figure out where to come down on the subject.

I must note that I was relieved by the Supreme Court of Appeal recently vindicating the position I ultimately settled on by ruling section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the ‘hate speech provision’) unconstitutional. That judgment was appealed and the matter is currently before the Constitutional Court.’

Despite the Supreme Court of Appeal judgement, and even if the Constitutional Court reaches the same or similar conclusion, I do not expect my position to remain completely static into the future:  in an age of near limitless access to large volumes of (dis)information, it is vital that we continuously interrogate our thoughts and the positions we assume on any topic. We need to be prepared to be faulted, to receive criticism, to learn and grow, and to change our minds.

I am still not 100% sold on my own case as presented in my article, but I believe it was worth contributing something to the discourse surrounding hate speech and subjecting myself to criticism or even ‘correction’ rather than effectively remain silent. Noting the state of the world, local and international, I would like to encourage all scholars to take up the mantle of reading and writing in various fields of public interest law in order to contribute to societal discourse on issues which, directly or indirectly, affect us every day as individuals, communities or as a nation.’