The gratuitous display of the old South African flag, even in private homes, is now considered a form of prohibited hate speech.

This is the crux of a judgment handed down in the Equality Court on Wednesday 21 August, following an application brought by the Nelson Mandela Foundation.

“All South Africans have a reason to be relieved and to celebrate today’s judgment as it affirms our rights to not suffer hate speech, our rights to dignity and our rights to a meaningful freedom of speech,” the Nelson Mandela Foundation said in a statement following Judge Phineas Mojapelo’s ruling.

The judgment was broadly welcomed by political parties, with only the Freedom Front Plus striking a different note in a statement describing it as a “biased decision that undermines reconciliation and nation-building in South Africa”.

No oral arguments were heard in the matter, as there were no factual disputes at hand. Instead, written affidavits were submitted by co-applicants the Nelson Mandela Foundation and the SA Human Rights Commission (SAHRC), with supporting submissions from the Department of Justice and LGBT+ organisation Johannesburg Pride.

Opposing the application were Afrikaner rights groups Afriforum and the Federasie van Afrikaanse Kultuurvereniginge (FAK).

The catalyst for the legal action was the events of 30 October 2017, when a number of demonstrators who mobilised under the banner of “Black Monday”, a campaign against farm murders, carried the old flag.

Although there was some confusion at the time due to a photograph of flag-wavers tweeted by a local journalist which was found to be an old image not pertaining to Black Monday, Afriforum did not dispute the fact that the flag was indeed present at the protest.

In an affidavit, Nelson Mandela Foundation CEO, Sello Hatang, recounted how unhappy memories from his apartheid-era childhood were revived by the old flag being waved in that context.

He remembered two white boys referring to him and his brother as “kaffirs” and recounted hearing white children sing “Daar kom ’n bobbejaan” (“There comes a baboon”) as his grandmother, a domestic worker, walked past them.

These memories were brought to mind, wrote Hatang, because “the old flag represents nothing other than the inhumane system of racial segregation and subjugation that governed SA before 27 April 1994”. That system, under the flag, “licensed those white children who still haunt my memories to dehumanise me, my brother and my grandmother in the way that they did”.

Judge Mojapelo said Hatang’s feelings and experiences “could have been that of any other black person to whom apartheid rule and oppression represented a painful reality”.

Afriforum was at pains to state it had no great love for the old flag. But it also gave what the judge termed only a “terse acknowledgement” that the flag “has a capacity to cause offence and emotional distress”. Afriforum further expressed the belief that an alternative response to the sight of the flag could be to “reflect on how far we have moved as a nation”.

Judge Mojapelo described this suggestion as “insensitive in the extreme”.

The judge briefly traced the history of the flag, which was adopted by an all-white parliament in 1927 (and brought into official use in 1928). He noted that the flag was considered a powerful symbol at the time in terms of unifying South Africa’s English and Afrikaner populations: in the words of Minister of the Interior DF Malan, it constituted a “repository of national sentiment”.

Yet while it represented unity for a minority of South Africans, it stood for the alienation and dispossession of the majority. Black South Africans were denied the chance to participate in the discussions about the flag.

The Flag Act was passed in the same year as the Immorality Act, outlawing sexual relations between whites and blacks, and the Native Administration Act, which gave the Governor-General sweeping powers over almost every administrative aspect of black South Africans’ lives.

The Flag Act was thus part of a set of laws that “intended to entrench, and in fact did entrench, racialised segregation and white supremacy”.

Judge Mojapelo acknowledged that the flag could be viewed differently today based on the race and experiences of the viewer.

Indeed, the contrast in how the flag is interpreted was starkly illustrated by the submissions of the various parties. The Department of Justice described the old flag as a symbol comparable to that of the Nazi swastika; FAK believed it could be seen as “a symbol of reconciliation and unity between the English and Afrikaans-speaking population”.

The latter, according to Mojapelo, cannot possibly be the interpretation of the majority of South Africans. Neither is it the dominant interpretation internationally, where apartheid is officially recognised as a crime against humanity.

As evidence that the old flag is seen globally as symbolic of racism, the Department of Justice cited the case of American white supremacist Dylann Roof, who wore the old flag as a symbol when he murdered nine black people at a church in South Carolina in 2015.

Afriforum argued that, linked to the fluidity of interpretation, people could have various intentions for displaying the old flag. Not all of these would necessarily be aimed at expressing support for racial segregation or causing offence among black people.

But “subjective intention is irrelevant”, wrote Mojapelo: “The test is whether the speech objectively demonstrates a hurtful, harmful or hateful meaning.”

One cannot argue that one deserves legal protection for calling a black South African the “k-word” with a special personal meaning, for instance.

It makes no difference, concluded the judge, that “some isolated person(s) somewhere, who has no idea of or is indifferent to the profound suffering endured by black people under apartheid, may experience [the flag] differently”.

The crux of Afriforum’s argument, however, was that the old flag could by definition not constitute hate speech because the flag does not contain words.

But, taking into consideration the context of the Equality Act, the Constitution and comparative international law, Mojapelo found that speech “must be widely interpreted to mean all forms of expression of ideas”. Otherwise, he pointed out, victims of non-verbal hate would not have their dignity protected in law.

The judge found that neither Afriforum nor FAK had supplied a plausible purpose for the display of the old flag worthy of legal protection – not even within private homes or schools, “as black people are invariably employed and exposed in other ways to such spaces”.

Judge Mojapelo stressed, however, that his ruling did not amount to a blanket banning order. It allows for the old flag to be displayed “for genuine artistic, academic or journalistic expression in the public interest”.

The “gratuitous” display of the flag, he ruled, constituted prohibited hate speech, unfair discrimination and harassment.

Attorney Dario Milo, who acted for SAHRC in the case, described the ruling to Daily Maverick as “a majestic and powerful judgment”.

Milo applauded the judge’s finding that the term “words” in the Equality Act can also include non-verbal expressions such as displaying a flag.

“If the position were otherwise, the hate speech prohibition would be under-inclusive and would harm dignity and equality. This is because hate speech obviously can extend beyond words,” Milo said.

“The judge also found that ‘no one waves the apartheid flag in front of black people without intending to cause harm, hurt or causing hatefulness’. Thus, gratuitous displays of the flag qualify as hate speech under the [Equality] Act.”

Judge Mojapelo also expressed hope in his judgment that groups like the Nelson Mandela Foundation and Afriforum can find a way to work together – with Afriforum indicating after the ruling that the organisation intended to do so.

Ultimately, wrote Judge Mojapelo, the ideal of South African unity is “worth striving for at all costs, especially for those parts of the nation (to the left and to the right) who may not yet be there”. DM