In a landmark ruling, a Johannesburg court on Wednesday barred the unjustified display of South Africa’s apartheid-era national flag, saying such gestures amounted to “hate speech” and “harassment”.
Judge Phineas Mojapelo said in Johannesburg that any gratuitous display of the old flag was “racist and discriminatory”.
“It demonstrates a clear intention to be hurtful, to be harmful and incite harm and it in fact promotes and propagates hatred against black people… it constitutes hate speech”.
The ruling followed a petition to the court by the Nelson Mandela Foundation Trust after the flag was displayed in October 2017 by white South Africans protesting at the murders of white farmers.
The judge said those who publicly displayed the flag “wish to remind black people of the oppression, humiliation, indignity, demonisation that they moved away from and do not wish to relive.”
– Not a blanket ban –
The former flag was used from 1928 until 1994 by the Union of South Africa, then a British dominion, and by the Republic of South Africa that succeeded it.
It comprised three stripes of orange, white and blue with three small flags at its centre — the emblems of the Orange Free State, Britain and the South African Republic.
Intertwined with the white-minority regime, it was widely known as the “apartheid flag” before being dumped in 1994 with the advent of democracy and its replacement by a multicolour flag.
But right-wing groups and individuals have continued to display the apartheid-era flag at political gatherings and at some rugby matches.
Mojapelo, the high court judge presiding over what is called an equality court, said the prohibition was not a blanket ban.
The flag could be displayed for academic or artistic purposes in the public interest, he said.
Offenders will face legal penalties including community service and fines.
– ‘National victory’ –
The Nelson Mandela Foundation, set up to continue the legacy of South Africa’s first democratically-elected president, said the decision “affirms our rights to not suffer hate speech, our rights to dignity and our rights to a meaningful freedom of speech.”
Outside the courthouse, its CEO, Sello Hatang, hailed the ruling as a “building block” for nation-building.
But Afrikaans rights group AfriForum, which had opposed the petition, said it disagreed with the judgement but would carefully study the text before deciding whether to appeal.
AfriForum deputy CEO Ernst Roets told reporters that their concerns lay in “where the line should be drawn between freedom of expression and hate speech”.
African National Congress (ANC) spokesman Dakota Legoete said the verdict was a “national victory.”
A constitutional crisis had been averted as the country could not have “two flags flying under the same constitution,” Legoete said.
The parliamentary committee on sports, arts and culture said the ruling should signal the end of any nostalgia for apartheid-era South Africa.
The Congress of South African Trade Unions (COSATU) remarked that “if the Nazi flag and the Confederate flag can be denounced in Germany and America, there is no reason to keep glorifying the apartheid flag”.
Designed by Frederick Brownell, who died in May at the age of 79, the 1994 flag seeks to symbolise the unity of the previously segregated racial groups and South Africa’s transformation into a democratic state.
Racial tensions remain high in South Africa, a nation gripped by wide economic disparities and facing a tough battle to ease unemployment and roll back crime.