FLYING an apartheid-era flag in South Africa is now considered a crime under most circumstances, according to a new ruling from the nation’s Equality Court.
In a firmly worded decision filed on Wednesday, Judge Phineas Mojapelo ruled that ‘gratuitous’ display of the Old Flag – a symbol of white supremacist rule in South Africa – amounted to hate speech, racial discrimination and harassment under the Equality Act. The court made exceptions for use of the flag that served the public interest, such as art, academia or journalism.
Mojapelo did not mince words in addressing the Old Flag’s discriminatory symbolism under apartheid South Africa, in which black Africans and others were legally segregated from white people from 1948 until the early 1990s.
‘The dominant meaning attributable to the Old Flag, both domestically and internationally, is that it is for the majority of the South African population a symbol that immortalises the period of a system of racial segregation, racial oppression through apartheid, of a crime against humanity and of South Africa as an international pariah state that dehumanised the black population,’ the judge wrote.
Gratuitous display, he wrote, ‘visually communicates a message of the belief in or support of racism, white supremacy and the subjugation of the black population.’
The Equality Court’s decision does not create a new law, but rather offers a specific interpretation of the pre-existing Equality Act – a request brought by the Nelson Mandela Foundation Trust and backed by the South African Human Rights Commission and Johannesburg Pride.
The Mandela Foundation’s motion cites a demonstration in October 2017 in which some protesters displayed the Old Flag, including members of a group called AfriForum, a non-profit organisation that represents the interests of descendants of white European colonisers in South Africa.
AfriForum opposed the Mandela Foundation’s motion, claiming that the Equality Act only expressly regulates ‘words’ and not symbols, and that it does not regulate displays of the Old Flag.
But the judge ruled against AfriForum’s argument, writing that it was ‘racist’ and ‘discriminatory’ and that it demonstrated a clear intention to ‘be hurtful’, to ‘promote and propagate hatred’ and to be ‘harmful’ and ‘incite harm.’
The judge acknowledged that the meaning of the flag was “unfortunately still divisive”.
To ‘those who did not suffer and benefited under the pre-democracy rule,’ the Old Flag is a symbol of heritage. To the ‘victims’ and those ‘genuinely opposed to the apartheid rule’ the flag is a reminder of an era of government-sanctioned racism that took generations to overturn.
Apartheid ended and a new era of democracy was ushered into South Africa with the 1994 election of Nelson Mandela, the nation’s first black president. On Wednesday, the Mandela Foundation celebrated their victory.
‘We have started a conversation about what matters to South Africans, how to remember the past and what the past means for us today,’ the organisation said in a statement. ‘Gratuitous displays of the old flag express a desire for black people to be relegated to labour reserves, a pining for the killing, the torture, the abductions, a melancholia for the discrimination, the death squads, the curfews and the horrific atrocities committed under the flag.’
AfriForum’s head of policy and action, Ernst Roets, said after the ruling that his organisation disagreed with the judge’s interpretation of the Equality Act.
‘Simply displaying it, in our view, is not sufficient for it to be hate speech,’ Roets told reporters Wednesday. ‘For it to be hate speech, it has to be coupled with some form of a call to action to inflict harm or something to that effect.’