NATIONAL NEWS - The Equality Court ruled on Wednesday morning that badly intentioned public displays of the old South African flag, which its detractors often refer to as the “apartheid flag”, should be limited, since “gratuitous display” constitutes not only hate speech but also harassment, and could be interpreted as an expression of white superiority, divisiveness, and severe racial prejudice.

The flag was in use from 1928 to 1994 and was used by the Union of South Africa and its successor state, the Republic of South Africa, until 1994.

Judge President Phineas Mojapelo summarised the arguments in the case, pointing out that the case essentially rested on whether displays of the flag should be considered hate speech, or whether these displays should be permitted due to the constitution’s strong protections on freedom of speech.

Judge Mojapelo rejected the narrow definition of hate speech only as literal words, saying it should be given a wider interpretation and extend to symbols like the flag as well.

The judge argued that displaying the flag “does much more than merely cause emotional pain and stress to black people”, and that “it makes no difference” to his finding that “an isolated person somewhere” does not fully understand the meaning of the flag, which is dehumanising to black people. Those who display the flag are consciously choosing “oppression over liberation symbols, with the intent to incite and awaken white supremacist” ideologies, he said.

He said displays of the flag were offensive not only to black people but to members of the LGBT+ community.

Judge Mojapelo said that the flag could be seen as “representative of apartheid” and remained divisive. Its display could fairly be seen as a message propagating hatred and hurtfulness and therefore constitutes hate speech. He added that he believed the display of the flag is an “affront to ubuntu (humanity)”.

“The Constitutional Court has time and again emphasised the importance of historical context when considering human dignity, especially the history of racialised inequality in South Africa, a unique attribute of which was the denial of human dignity to black South Africans,” said Mojapelo.

Mojapelo then summarised some of the key human rights violations during the apartheid era, which were enabled by numerous discriminatory laws and intended to entrench white minority rule, segregation and supremacy over the black majority in what the United Nations condemned as a crime against humanity.

“The old apartheid flag, as it is sometimes called, was a vivid symbol of white supremacy and black disenfranchisement and suppression. It combined four flags: the British Union Jack, and [those of] the old Boer Republics. It gave expression to European heritage and heraldry and excluded black people entirely,” he said, quoting one argument from the Nelson Mandela Foundation (NMF) in the case, which he agreed with.

“It is unfortunately still divisive,” he said, which was why a new flag and identity was needed in 1994.

Mojapelo said the post-apartheid government had the task of redressing historical imbalances. He said the right to display the flag needed to be balanced against protecting human dignity and human rights, particularly those of the formerly oppressed black majority. This would be particularly relevant if the flag was being displayed by the white minority.

The case saw lobby group AfriForum square off against the Nelson Mandela Foundation (NMF), with the former arguing only words, not symbols and images, constituted hate speech according to the Equality Court’s definition.

The foundation had clarified that it had never called for the flag to be banned, but that it should only be displayed in public settings that were meant to inform and educate.

NMF lawyer Tembeka Ngcukaitobi argued that most displays of the flag should be interpreted as the flag raiser’s attempt to project discredited views on white racial superiority.

The NMF further argued that “gratuitous displays” of the apartheid-era flag should be legally considered hate speech. This stance was supported by the South African Human Rights Commission (SAHRC), as well as LGBTQ+ community organisation Johannesburg Pride.

NMF spokesperson Luzuko Koti said in a statement in April: “For the foundation, it is time to acknowledge that the old flag is a symbol of what was a crime against humanity and that its gratuitous public display celebrates that crime and humiliates everyone who fought against it, especially black South Africans.”

Nelson Mandela Foundation chief executive Sello Hatang had also made a submission to the court on his personal distaste and negative experience at seeing the flag.

Read more on the Caxton publication, The Citizen.