Equality Court prohibits display of old South African flag

The gratuitous display of the old South African flag now constitutes hate speech. This is according to a ruling by Judge Phineas Mojapelo in the Equality Court which sat in Johannesburg on Wednesday.

This means that the display of the old South African flag both in public and private spaces has been prohibited. The exception is where the old flag is displayed for “genuine artistic, academic or journalistic expression in the public interest”.

The court found that the constitutional right to freedom of expression “does not extend to” advocacy of hatred based on race. Because the display of the old flag amounts to hate speech, it is not constitutionally protected speech.

On 30 October 2017, a protest – dubbed by the organisers as “Black Monday” – was held against farm murders and violence on farms in South Africa. During the protest, some participants displayed the old South African flag in public, sparking widespread outrage and public debates. (See GroundUp’s report the of the Black Monday protest in Cape Town.)

The Nelson Mandela Foundation and the South African Human Rights Commission (SAHRC) then approached the Equality Court to declare the gratuitous display of the old flag hate speech. They also wanted the court to declare that it amounted to unfair discrimination and “harassment” on the basis of race in terms of the Equality Act.

Afriforum opposed the application, arguing that the right to freedom of expression includes the right to display the old flag. The Federasie van Afrikaanse Kultuurvereniginge (FAK), was admitted as a friend of the court. FAK is the oldest organisation in South Africa which is dedicated to protecting Afrikaans culture and heritage. They were also opposed to the old flag being banned.

Johannesburg Pride, the NGO which is responsible for the annual LGBT+ pride parade in Johannesburg, was also admitted as a friend of the court. They argued that the old flag was a symbol of racism and homophobia.

The old flag was adopted in 1927, when only whites could stand for Parliament. The flag was introduced at the time to forge unity between Afrikaners and the English. The Equality court stated that when the old flag was adopted, people of colour were excluded from the discussions.

The court noted that the Immorality Act (which banned marriage and sexual relationships between blacks and whites) and other pieces of racist legislation were passed during the time that the old flag was the official one of the country. This meant that the old flag was part of a scheme of laws which sought to entrench “racial segregation and white supremacy.”

The court case

During the hearings, the court had to decide whether the “gratuitous display” of the old flag constituted hate speech, unfair discrimination and harassment in terms of the Equality Act. This meant examining whether the “gratuitous” display of the old flag other than for academic, journalistic or artistic purposes, was protected by the right to freedom of expression. To do this, the court had to consider the rights to human dignity and equality against the right to freedom of expression.

The old flag was only abolished in 1994, when South Africa ushered in its first multi-racial and democratically elected government. The new flag represents a “united democratic non-racial South Africa,” the court said.

Most of the parties conceded that the old flag was a symbol of the apartheid regime which dehumanised black people. Afriforum conceded that “most South Africans recoil from the old flag” but also argued that the flag has multiple meanings. FAK on the other hand argued that the old flag represented reconciliation between Afrikaners and the English. But the court rejected this argument. “A reconciliation between white Boers and white British … which excludes black people is simply racist,” the judge wrote.

The court said that in 1976, the United Nations passed an international treaty which acknowledged that apartheid was a crime against humanity. Also, the flag was an international symbol of white supremacy. For example, in 2015, convicted murderer, Dylan Roof, killed nine black congregants in Charleston, South Carolina. He was wearing the old flag at the time of the murders. “All peace-loving South Africans must be ashamed of the display of the old flag,” the court said.

Does the display of the flag constitute hate speech?

In terms of the Equality Act hate speech is defined as any “words” which clearly intend to propagate, or advocate hatred based on race or other grounds. The court had to determine whether the display of the old flag constituted a form of “words.” The court pointed out that the purpose of the Act was to protect the right to dignity and freedom from racial discrimination.

The court found that the reference to “words” includes speech, ideas, ideologies, beliefs and instructions. It covers all expressions of ideas, verbal and otherwise that amount to hate speech. A narrow interpretation would mean a person is prohibited from calling their black colleague a baboon but not prohibited from circulating an image of that same colleague’s face superimposed on the body of a baboon. That would be absurd.

The impact of the old flag

The court said that it did not matter that some people might be indifferent to the profound suffering black people endured during apartheid and not care about the display of the old flag. The fact remains that objectively, the old flag demeans and dehumanises people based on their race. It impairs their human dignity.

“When people display the old flag, they choose an oppressive symbol over a symbol of liberation,” the court said. Also, for many black people the display of the flag invokes painful memories of the brutality of apartheid. This includes being called the “K-word” and other dehumanising acts.

The court said that for black South Africans still seeing the old flag in peoples’ private homes (when they visit them or are employed in a person’s household) could impair their dignity and equality. The court concluded that the ban extends to private settings too.

The implication of this judgment is that the display of the old flag in public or private settings constitutes hate speech. But the old flag is not completely banned. A person is still entitled to display the old flag for genuine artistic, academic or journalistic reasons in the public interest.

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