Equality Court asked to declare old SA flag as hate speech

The old South African flag was a symbol of Apartheid South Africa and should be declared hate speech under the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act), the High Court in Johannesburg heard on Monday.

The Nelson Mandela Foundation took the case to court because of a public debate between the foundation and Afriforum, after reports that the old flag was displayed at a Black Friday demonstration in October 2017.

Counsel for the foundation, Tembeka Ngcukaitobi, took the court through the record of Parliament’s debate when the flag was adopted in 1927. He was addressing an argument by friend of the court Federasie van Afrikaanse Kultuurvereniginge (FAK), that the old flag was capable of a more benign meaning – a meaning of tolerance and reconciliation – because it was the outcome of reconciliation between the British and the Boers. Ngcukaitobi said it was “clear that what they were reconciling was white racist differences”.

Counsel for friend of the court Johannesburg Pride, Isabel Goodman, added that the meaning of symbols, particularly flags, was capable of objective determination by a court.

“The very purpose of a symbol is to act as a short-hand for an idea or a group. And flags are quintessential symbols,” she said.

In heads of argument, Goodman said: “If the symbol signifies a hateful ideology or group, then that is the meaning that will be attributed to it.”

Ngcukaitobi referred to a part of the affidavit of the foundation’s with Sello Hatang describing how seeing the old flag triggered memories like the humiliation of his grandmother when she was called a “bobbejaan” by white children and could do nothing about it; and how this affected him as a child. Afriforum’s response to this, said Ngcukaitobi, was to say that when Hatang now came across the old flag, “he could use the opportunity to reflect on how far we have come as a nation”.

“I don’t need to dwell on the offensive nature of these stances,” he said, “they just need to be read into the record,” said Ngcukaitobi.

Counsel for the South African Human Rights Commission, Wim Trengove SC, said the flag’s life came to an end as a symbol of the apartheid state. Displaying it today was an expression of nostalgia for apartheid SA, people who display it today “yearn for apartheid South Africa, they celebrate apartheid SA … a state which was founded on the supremacy of white people”, said Trengrove.

By waving the old flag, they also made a choice not to wave the new flag, said Trengove. The message was: “We yearn for the old, racist South Africa, we don’t identify with the new democratic non racist South Africa”.

Doing it in public – “in full view of the black people who were humiliated and degraded by the apartheid state” – was to send a profoundly humiliating, degrading message to all black people, said Trengove.

But Afriforum argued that the declaration the foundation seeks would amount to a ban and would infringe on the right to freedom of expression.

Afriforum’s counsel, Mark Oppenheimer, said that Afriforum was a “reluctant respondent” in this case as it has “no particular love” for the old flag but, as a civil rights organisation, it was committed to upholding the right to freedom of expression.

He quoted legal philosopher Ronald Dworkin, who said “morally responsible people insist on making up their own minds …. Government insults its citizens, and denies their moral responsibility, when it decrees that they cannot be trusted to hear [certain] opinions”.

He said when information was “curated”, it denied people their agency to make up their own minds.

But Ngcukaitobi also accused Afriforum of “double speak”. On the one hand it said that it did not support the old flag and discouraged its members from displaying it. But it had not condemned those that waved the old flag at its event, and instead denied that the flag had been displayed, he said. He added that Afriforum “exploits” farm murders – a matter of national concern – to make its arguments, which was “very manipulative and exploitative,” said Ngcukaitobi.

However, Oppenheimer said that there was no evidence that there was in fact a display of the old flag at the Black Monday protest as the journalist who had tweeted about it later corrected to say that the photo was actually an old one.

Oppenheimer argued that prohibition of hate speech in section 10 of the Equality Act extended only to “words” that were hurtful and incited harm, which displaying a flag was not. This was a deliberate choice of the legislature, he said.

Ngcukaitobi had earlier urged the court to adopt a wider interpretation of section 10 to include pictures and conduct, including the display of a flag. He said not to do so would create an absurdity – for example, to call a black man a baboon would be hate speech but to paste a photo of a black person’s face over that of a baboon would not.

A narrow interpretation would also make section 10 of the Act unconstitutional, said Trengove, because the narrow interpretation would not give effect to the rights to equality and dignity in the bill of rights.

The hearing will continue on Tuesday.

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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