A gratuitous display of the apartheid flag amounts to hate speech — even inside homes and schools, the equality court said this week. But a genuine journalistic, academic or artistic display in the public interest would not be hate speech because these are not gratuitous, the court found.
Johannesburg high court deputy judge president Phineas Mojapelo also set judicial precedent when he interpreted the Equality Act to mean that hate speech was not limited to words. Gestures — such as waving a flag — could also amount to hate speech.
The case was taken to court by the Nelson Mandela Foundation Trust, after reports that the apartheid flag was waved at a #Blackmonday demonstration in 2017 against farm murders. The foundation asked the court to declare waving the flag as hate speech, harassment and unfair discrimination under the Equality Act. Afrikaner-interest lobby groups AfriForum and the Federasie van Afrikaanse Kultuurvereneginge opposed the case, saying the display of the flag was protected by the right to freedom of expression.
The judgment was hard-hitting on what message was sent when the flag was waved. Recounting the history of the flag over 66 years, Mojapelo concluded that the dominant meaning of displaying the flag “visually communicates a message of the belief in, or support of, racism, white supremacy and the subjugation of the black population”.
Mojapelo said that, objectively determined, the intention of those waving the apartheid flag was clear — it was to “incite and awaken feelings of white supremacy against black people”.
The judge rejected the argument that people may have different intentions when they display the flag. When the Act refers to a “clear intention”, the courts have been unanimous that this may be objectively determined by a court.
When the foundation’s Sello Hatang described how the display of the flag brought back painful memories of being called a “k*****” as a child and of the trauma when his grandmother was taunted as a “bobbejaan” by children, this “reflects the reality of the feelings and experience of the black child raised in apartheid South Africa”.
AfriForum’s response was to say that South Africa has moved on and it was hoped that the next time Hatang saw the apartheid flag, he could “use the opportunity to reflect on how far we have come as a nation”.
Mojapelo said this was “insensitive in the extreme, destructive of human dignity and equality and constitutionally untenable.
“One should be slow to tell victims how they should feel about being hurt and how they should experience their pain. Especially for those who do not share their experience of the pain.”
In deciding whether the hate speech prohibition applied to more than just words but to gestures and other forms of expression, Mojapelo considered the purpose of the Equality Act, the historical context, the Bill of Rights, international law and foreign law. He concluded that a “literal interpretation” of the Act, as AfriForum argued for, failed to have regard to this legal framework.
Since apartheid never fully succeeded in segregating people, displaying flags in private spaces such as homes and schools was still hate speech because “black people are invariably employed and exposed in other ways to such spaces”, he said.