State backs move to ban old SA flag
‘It is a symbol that promotes white racial supremacy’
The government has thrown its weight behind a bid to stop people from publicly displaying the old apartheid-era South African flag.
The Nelson Mandela Foundation’s Equality Court application was launched in February and, last week, specialist state law adviser Theresa Molomoitime Ross filed an affidavit on behalf of the justice department.
The foundation wants “gratuitous” public displays of the flag banned on the basis that it amounts to hate speech.
The court move followed two verified displays of the old flag at “Black Monday” demonstrations against farm murders in October 2017.
The case is expected to be argued in April.
The government argues in its affidavit that the flag is widely recognised as a symbol that promotes white racial supremacy and can be put in the same category as the Nazi swastika.
The justice department concedes, however, that existing legislation does not, technically, define the flag as hate speech and the law would have to be amended for it to be classified as such.
The bid to ban the flag from being used in public has divided historians, law experts and anti-apartheid activists.
Port Elizabeth anti-apartheid activist Mkhuseli “Khusta” Jack said it was ridiculous that a court even had to decide if people should be banned from waving the flag in public.
“Common decency should just prevail with the flag representing the draconian laws SA had [previously],” he said.
“It should not be for the court to decide, but for people to just realise what the flag represents.”
Eastern Cape historian Nomalanga Mkhize said giving the government the power to ban a flag would not help SA in any way.
“The government is not consistent with what it considered a symbol of hate in relation to the past,” she said.
“The ANC never classified a lot of what the National Party used to represent as hate speech.
“We still live with old laws that were never considered to be removed from our landscape,” Mkhize said.
She said no government should be given such power that it could simply ban a flag.
“Yes, the flag was a symbol of white supremacy but the bigger principle here is what power the state should have.
“Is it hateful to display Nazi paraphernalia in South Africa? I don’t think so,” she said.
“You can’t just give the state random powers to ban or prohibit something that has not been a problem for the government before.”
Using an example of a rugby match, Mkhize said the best way for the flag to stop being used publicly was for a stadium’s management to ban the use of the old flag.
“This is similar to how nightclubs have dress codes and such powers should be given to officials at rugby matches.”
Constitutional law expert Pierre de Vos said such a ban would place a limit on freedom of expression but it would probably have a small impact.
“It would not have a disastrous impact on freedom of expression,” De Vos said.
“There will be some who yearn for apartheid to return, but most South Africans don’t go around waving the old flag anyway.”
He said the constitution had provisions to limit freedom of expression, but only if it was done in terms of the law and was justifiable within certain limitations.
“It has happened in other countries like Germany, where you can’t display the Nazi flag, so it would not be unprecedented to ban such a flag.”
De Vos said while he would be happy for the flag never to be seen again, he was unsure whether it should be banned outright.
Centre for the Advancement of Non-Racialism and Democracy (Canrad) director Allan Zinn said the flag was symbolic in SA and was also used by some people as a form of provocation.
Zinn said the flag represented many different things to people but was, ultimately, a symbol of the apartheid atrocities.
“There is only a place for the flag in museums and historical spaces,” he said.
The foundation’s application is being opposed by AfriForum, which argues that while it does not support public displays of the old flag, banning them would be a “setback for freedom of speech and our democracy”, and could set a negative precedent.
But, according to Ross, it is the justice department’s position that “there is no place in the democratic South African society for the display and waving of the old flag in our communities”.
“Such conduct should be condemned in the strongest terms as it imputes to those hoisting the old flag that they reminisce and long for the days when the old flag was the national flag of the country between 1928 and 1994.
“This is also the period during which the system of apartheid was government policy in the country, a system determined to be a crime against humanity.”
But, she says, the Promotion of Equality and Prevention of Unfair Discrimination Act, which defines hate speech at present, is limited only to words that demonstrate “a clear intention to be hurtful, harmful or incite harm, promote or propagate hatred”.
She said the government wanted to have this section of the Act declared unconstitutional and amended so that symbols like the flag could be defined as hate speech.
Ross also said that the government’s new Hate Speech Bill, which is yet to be passed into law, defined communication of hate speech far more broadly, to include “display, written, illustrated, visual or other descriptive matter, oral statement, representation or reference, or an electronic communication”.
It also defined harm as including any emotional, psychological, physical, social or economic harm.
Under the bill, people can be convicted of hate speech if they intentionally publish, propagate or advocate anything that “could reasonably be construed to demonstrate a clear intention to be harmful or incite harm, or promote or propagate hatred”.
And that could include public displays of the old SA flag.
“It is the [justice] minister’s and the department’s position that the image of the old flag does constitute hate speech as it advocates hatred based on race and ethnicity and constitutes incitement to cause harm,” Ross says in the court documents.
She says it is, therefore, not necessary for the Equality Court to rule on whether the old flag should be banned outright.
“The application falls to be determined in the same manner as any form of verbal expression that has recently come before this court.
“It is a form of expression that must be determined on its own merits to determine whether, in the context of South African society, it amounts to ‘the advocacy of hatred’ or ‘incitement to cause harm’.
“The gratuitous display of the image at a rally or protest march would certainly be a relevant consideration in such an assessment.
“At this stage of South Africa’s history, it is difficult to contemplate a time when the display of the old flag would not be interpreted as the advocacy of hatred or an incitement to cause harm.
“Should this position change, for example, in the next century, the analysis of whether the image comprises hate speech may result in a different outcome,” she says.
Would you like to comment on this article?
Register (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.
FREE TO READ | Just register if you’re new, or sign in.
Questions or problems? Email helpdesk@heraldlive.co.za or call 0860 52 52 00.