On Folk devils, flags and freedoms (II)

Flags are bits of coloured cloth that governments use first to shrink-wrap people’s minds and then as ceremonial shrouds to bury the dead. – Arundhati Roy

The legal precedent set by the old flag hate speech case has implications for all South Africans – from social conservatives who might feel attached to certain religious iconography, to free-thinking types who believe the state has no business peeping into their homes, bookshelves and hard drives.

It matters especially if citizens wish to live their lives free from interference, without Kafkaesque court actions based on dubious grounds, where men and women in black cloaks use their freedoms to argue for the restriction of others’ civil liberties.

The advocates of this particular Committee of Affairs tried to decree not only the intentions and beliefs of those who display the flag – none of whom were even brought before the court – but also a singular reading of history itself.

Once the “correct” view had been established, the law could be stretched to argue that all “gratuitous” displays of the flag, whether public or private, amount to hate speech, harassment, and unfair discrimination.

The following account of the proceedings details some of the legal issues at stake. It demonstrates that not all displays have the intentions ascribed to them by the applicants, despite some of the rhetoric used in the courtroom to argue their case.

Interpreting the old South African flag

The parties first made submissions on the origins and meaning of the 1928 flag.

The NMF argued the flag represented “nothing other than the inhumane system of racial segregation and subjugation” that took place during apartheid. This had “manifested in various forms since the 1600s”, and gratuitous displays could only ever mean “an endorsement of the system of apartheid”.

The organisation acknowledged the old flag was a symbol of reconciliation between the Boers and the Brits, but this toenadering was to the exclusion of black people. Advocate Tembeka Ngcukaitobi, who represented the NMF, told the court this reconciliation was of “white, racist differences”. Any alternative interpretation of the flag was “an attempt by white privileged minorities” to retain their privileges. The old flag was not only “hurtful”, but also “degrading”, “dehumanising”, and “an assault on human dignity”.

“This is not a case about contested meaning,” Ngcukaitobi said. “It is a case about a group of people that’ve decided that they will not embrace the new South Africa and they will continue with the ways of the past.” There was therefore “no dispute” on the historical meaning of the flag. It represented “racism, period”.

Advocate Wim Trengove, acting on behalf of the SAHRC, said Ngcukaitobi had been “unduly kind and generous” in his arguments. Public displays of the flag were in fact “a lot worse”. The old flag had been “adopted and used by white supremacists around the world as a symbol of hatred, oppression and racial superiority”. In its court papers, the commission in addition said a gratuitous display “can […] only plausibly and reasonably be construed as a means of asserting one’s affinity with, endorsement of and mourning for the apartheid regime which resulted in the undignified, degrading and detestable treatment of black people”.

The Department of Justice said those who display the old flag “reminisce and long for the days” when it was South Africa’s national flag, while Johannesburg Pride said it “demeans, humiliates, and creates a hostile and intimidating environment towards members of the LGBTI+ community who were also victims of apartheid and its legacy”. The organisation also said it demonstrates “a clear intention to be harmful, hurtful and hateful to members of that community”.

Acting as a reluctant respondent, AfriForum acknowledged the symbol’s “capacity to cause offense and emotional distress”, and emphasised that it had “no particular love for the old flag”.

“In the exceptionally rare instance that anyone participating in one of our events brings an old flag with them, we ask them to put it away,” the organisation said. The old flag was a “relic” that had been “relegated to the dustbin of history”. The organisation however argued that a “wide-reaching ban” would be an unconstitutional infringement on the right to freedom of expression.

The Federasie van Afrikaanse Kultuurvereniginge (FAK) similarly argued against banning the flag. It said there was a “stereotyped view” of something with a “far more complex history” – not all displays were “intended to be hateful or offensive”, and it was also “an example of how two warring nations (the Boers and the British) found a way to reconcile.”

In his judgment, Judge Phineas Mojapelo found the old flag represented “the shameful apartheid policy with which most peace-loving South Africans, of all races, do not wish to be associated”.

He said, “FAK does not acknowledge that ‘the Boers and the British found a way to reconcile’ but only through the disenfranchisement, dispossession and denigration of black people, to the exclusive benefit of themselves as white people. It is difficult to see why FAK cannot see or acknowledge the obvious: a reconciliation between white Boers and white British and which excludes black people is simply racist.”

Mojapelo concluded, “In short, the image represented the unity and reconciliation of two groups that proceeded to brutally oppress the African majority through apartheid.” He therefore held that it had “no place in the current democratic inclusive society”.

Interpreting the law

The case dealt with a number of important issues, and many are beyond the scope of this article. The main points worth exploring are however those that pose the greatest threat to civil liberties – not only by lowering the threshold for finding hate speech, but also by encroaching onto individuals’ private spheres.

I

During several broadcast interviews, CEO Sello Hatang said the NMF felt it was perhaps time to “ban” the old flag (see Part I). However, in its court documents, the organisation said it merely sought to have “gratuitous” displays – those which serve “no genuine journalistic, academic or artistic purpose in the public interest” – declared hate speech, harassment and unfair discrimination.

Freedom of expression is however a fundamental human right, and section 16 of the constitution gives a broad and general protection to “everyone”. This then further includes a list of categories, namely: the freedom of the press and other media; the freedom to receive or impart information or ideas; the freedom of artistic creativity; as well as academic and scientific freedom.

There however appears to be a notion, often among those who earn their livelihoods by plying words, ideas and images, that the specified categories receive better protection, or somehow constitute “legitimate” expression.

The authors of The Bill of Rights Handbook however argue that their inclusion “does not single them out for greater protection”. Despite the “superficial appeal” of this position, the listed categories were “not intended to describe the core of protected expression”. The authors further state, “If anything, that honour probably belongs to the expression of political opinion, which is not listed”.

Whether waved, stomped on, or set alight, flags are a legitimate form of political expression. They can either be used to signal support and allegiance, or to register protest. In South Africa, and even abroad, displays of the 1928 flag are however deemed the preserve of (racist) white people.

In court Advocate Trengove also delved into what he thought the motivations might be of those who display the flag:

“[…] they express nostalgia for apartheid South Africa. They yearn for apartheid South Africa. They celebrate apartheid South Africa. And what is it that they are nostalgic for? That [which] they yearn for and [which] they celebrate? It is a state of institutionalised racism. A state which was founded on racist principle. […] a state in which the supremacy of white people was institutionally entrenched and celebrated. […] a state in which the inferiority of black people (sic) was institutionalised and emphatically implemented. So what do these people say? Who do go around in public flying a flag to express their yearning for apartheid South Africa? What they say is that we yearn for the good old days when we lived in a state that entrenched and celebrated white superiority over black people. A state that humiliated black people in every aspect of life – that is the state we yearn for. A state in which white people were celebrated, [and] black people were humiliated. […] They also choose not to wave the flag of democratic South Africa. […] the flag that is symbolic of democratic South Africa, of non-racist South Africa, of diverse South Africa.”

While there is no moral obligation on any person to signal their democratic commitment, the new flag was indeed flown on Black Monday, the old flag barely at all (see Part I). Such rhetoric may be effective in garnering media or judicial support on emotive issues, but this view about individual motivations is too simplistic, and belied by actual examples of the way in which the old flag has been used. Consider the following cases:

In March 2015, a story appeared on IOL about a coloured couple flying the old flag above their home on the Cape Flats. The pair said they had “very good reasons” for doing so. “We believe nothing has changed from the apartheid days,” the wife said. “We don’t have water or electricity here and nothing seems to be better in our lives.” The Human Rights Commission at the time said it would investigate the matter of the flag.

Similarly, in August 2016, a coloured voter arrived at the booths wearing a jacket with two small patches depicting both the old and new South African flags. Pointing at each, he said, “This is my country, and this is my country.” But while each was his country, one represented a “white” country, and the other a “black” country. He then circled an empty spot near the centre of his chest and explained to News24 that he was still waiting for a third flag: one that could also represent coloured people.

In February 2017, Netwerk24 published an article about anti-immigrant violence in Pretoria. Two black protesters arrived to demonstrate with an old flag flapping out of their car window. “It was better for us under the old South Africa compared to now under the ANC,” one said. He claimed the country had less drugs and crime.

Then, in May 2019, an Indian dentist posted an image of the old flag with a photograph of Komani, formerly Queenstown, on Facebook. He claimed the town had become a “shithole”. He was branded a racist, but said he rejected the atrocities committed under the old regime. “I believe that whoever did something wrong should be punished. I don’t support the flag based on race but on the work that was done under apartheid. There were services, people were working and our borders were tight.” He also did not believe government “should censor what people think about the flag or which flag to use”. An ANCYL official said the organisation would “mobilise all the victims and everyone who was offended”. An ANC official called the postings “most hurtful and degrading”, before adding, “I would like to remind you that your well-being depends on the black communities.”

Desecrating the new South African flag is in addition deemed an unpatriotic and near-treasonous act when performed by whites. Perhaps that is why an old photograph of pale protesters burning the new national flag re-surfaced on Black Monday. Taken outside a Delmas court in 2012, the group was protesting violence against women and children, more specifically the murder of a day-mother in her sixties and a 5-month old baby.

But burning the new flag is not a race-specific pastime. TimesLive in 2012 reported that black protesters burned the new flag. The group was unhappy because a Human Rights Day commemoration venue had been changed. One protester explained: "It is a tradition that, when you hold a ceremony of the ancestors, it should be held at home and not at a neighbour's yard.”

Not all displays of the flag are however outwardly political. In 2010, culture mag Mahala published a story about an enterprising street hawker in Norwood. This black trader donned a t-shirt with a huge old flag blazoned across the chest. Mahala thought this advertising trick was clever and disruptive, and pronounced the idea “kif”.

Similarly, in November 2017, a photograph surfaced on Facebook of a white man and black woman posing together at a party. The woman was decked out from head to toe in the old flag; her frock and headdress with a certain je-ne-sais-Tannie-Evita. Netwerk24 reported the event was an advertising industry year-end function.

Going through old news reports from around the late 1990s onwards, it is plainly clear what a profoundly rare occurrence displays of the old flag have been over the years. Those who have done so constitute a small minority and, as has been shown, their reasons for doing so are diverse. It could be a reflection of nostalgia, but also an ironic statement, or a critique of the current state of the nation.

Representing AfriForum, advocate Mark Oppenheimer said the applicants were seeking a “strained reading” of the equality act that would have a “knock-on effect” for other rights.

“Those who want to protest under the flag would have those rights taken away from them and this would be an infringement of not only a free speech right, but of an assembly right,” he said.

Ngcukaitobi nevertheless argued that those who opposed the NMF’s case were merely trying to “prohibit racists from assaulting the dignity of black people”. With a court order there would be “no debate” – the only legitimate displays would be those under the four listed categories in the equality act.

“Everyone will know that I may not expose my gardener to racism,” Ngcukaitobi said. “I should keep my racism for my children.”

Mojapelo found that a “gratuitous” display clearly communicated “the belief in or support of racism, white supremacy and the subjugation of the black population.” He questioned AfriForum’s decision not to support the action and claimed the organisation had chosen to “pose as a champion of freedom of expression”.

“Why would they not support the curbing of its hateful, hurtful, harmful and inciteful effect towards black people (their fellow men and women)?” he asked.

Mojapelo held that the old flag “does much more than merely cause offence and emotional distress to black people”. He said:

“Those who display the Old Flag choose deliberately not only to display the apartheid discriminatory, divisive and oppressive flag; they also consciously and deliberately choose not to display the new democratic all-uniting non-racial flag. They choose an oppression symbol over a liberation symbol. What then is their objective intention? They intend to incite and awaken feelings of white supremacy against black people.

They know or ought to know that other oppression prone white people will be incited to recall and long for days when white people exercised oppressive power over black people – with the sanction of an oppressive and unjust legal system. They wish to remind black people of the oppression, humiliation, indignity and dehumanisation that they moved away from and do not wish to relive or return to. They are therefore correctly described as demonstrating ‘total rejection of tolerance, reconciliation and all values underlying the Constitution’.

They deliberately chose to reject reconciliation and embrace hatred and oppression because they incite polarised feelings. As Mr Trengove for the SAHRC puts it: “the message publicly conveyed by those who wave the apartheid flag is a hurtful message. It is also a harmful message. It incites harm on racist grounds. And it propagates hatred, because it propagates the superiority of the white race over the black race.”

He found there could be “no other decent intentions” behind displays of the flag. “No one gratuitously waves the apartheid flag in front of black people without intending to cause harm, hurt or causing hatefulness,” he said.

II

AfriForum warned against setting a precedent that could lead to other flags being banned. It used the examples of the Union Jack, the SACP flag, the ANC flag, and the Gay Pride flag. At the time, the press derided the organisation for even making this suggestion, but the argument is perfectly sound in law.

The point is that by reducing the threshold for finding hate speech to that of offensiveness, it would threaten not only other symbols, but also other forms of expression. This is because the list of prohibited grounds in the equality act includes race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, conscience, belief, culture, language and birth. The organisation argued that atrocities had been committed on precisely these grounds in communist regimes around world. The British committed a genocide against the Boers, and thousands were killed during the ANC’s people’s war.

Nevertheless, the example of the Gay Pride flag impelled Johannesburg Pride to act as amicus curiae. The organisation said the old flag and the Pride flag were in no way comparable, and it provided extensive information on its significance. Designed by an artist, each of the original eight stripes were assigned meaning: hot pink for sex; red for life; orange for healing; yellow for sunlight; green for nature; turquoise for magic and art; indigo for serenity; and violet for spirit. The Pride flag symbolised “freedom, equality and acceptance” and it was “deliberately developed as a symbol of gay pride” and “respect for diversity”. The interpretation of the old flag had to be objective and, as such, the “subjective views of the people FAK represents are irrelevant and inadmissible”.

 AfriForum said, “The national flags of 74 countries that have homophobic laws which criminalise homosexual conduct with imprisonment, whipping, exile, public stoning and death could be associated with hatred on the grounds of sexual orientation”. The organisation therefore argued that displays of flags – including the old South African flag – need to be evaluated in context and on a case-by-case basis. It therefore opposed the blanket prohibition on so-called “gratuitous” displays.

III

Freedom of expression is a broad and generous constitutional right, but it comes with limitations. These are listed under section 16(2) of the constitution: The right does not extend to – (a) propaganda for war; (b) incitement of imminent violence; [or] (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. (Emphasis added.)

Oppenheimer argued that this did not mean the constitution prohibits certain kinds of speech, but rather that Parliament has the power to regulate expression up to that limit. Laws that exceed the threshold infringe on the constitutional right of freedom of expression.

Over the past few years, however, hate speech rulings have been remarkably inconsistent. This is partly because of the poor formulation of the legislation itself.

Expression must include an element of incitement – or call to action – for it to fall outside constitutional protection. This is indicated by the phrase “and that constitutes incitement to cause harm”. However, the equality act’s hate speech clause is not well drafted. Section 10(1) prohibits words based on one or more of the prohibited grounds – like race or gender – that “could reasonably be construed to demonstrate a clear intention to – (a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred.”

As previously described on Politicsweb, this has created the legal confusion:

“[The legislator] omitted the words “and” or “or” between the various factors, and so it has been unclear whether prohibited speech need only be hurtful or harmful or incites harm or that promotes or propagates hatred – in other words requiring a disjunctive (or separate) reading of the various elements. A conjunctive (or joint) reading would however mean that all those elements need to be present for speech to be declared hate speech.

This distinction becomes important when deciding whether or not words, such as racial insults that might be deeply offensive and hurtful, can be declared hate speech.”

The NMF argued that courts had declared hate speech “without finding (or even considering)” incitement. The organisation used examples of racial epithets that had no call to action being declared hate speech. Ngcukaitobi therefore argued for a disjunctive reading of the hate speech clause. “It is enough that we’ve come to court to say that a particular conduct is hurtful,” he said. “We do not have to subsequently prove that it also incites harm, or it also promotes or propagates hatred.”

He added, “We simply insist that on a correct interpretation of the law, the phrases are disjunctive, and hurtfulness is sufficient.”

AfriForum however said the threshold for finding hate speech was “set at the high-water mark of imminent violence and harm”. The organisation cited the authors of Constitutional Law of South Africa who state that “the use of the word ‘incitement’ indicates that the speech must instigate or actively persuade others to cause harm.”

“It must be conjunctive,” Oppenheimer argued. “The reason why it must be conjunctive – in other words, all three must be present – is that it is the only way to interpret the legislation to be constitutional.” He said if the section were not read conjunctively, hurtfulness alone would be sufficient for finding hate speech.

“If we think about the range of speech that can be hurtful that doesn’t incite harm or propagate hatred, it’s immense,” Oppenheimer said. “There are all sorts of words and expressions and books that hurt people’s feelings, or that they feel offended by.”

He said a number of prominent court actions, such as the Herselman case, had created a misunderstanding in the public’s mind about the nature of the law.

“The complainant was described as a baboon,” Oppenheimer said. “Now this is clearly hurtful speech, which the court finds.” The speech did not however meet the other requirements, and he said the only way for the court to make a finding of hate speech was to adopt a disjunctive approach, which it did. This decision was then relied on to declare Penny Sparrow’s utterances hate speech. Oppenheimer nevertheless said a distinction had to be drawn between real hate speech and hateful speech.

In the Velaphi Khumalo case, the court in addition held that a conjunctive approach had to be adopted. Justice Sutherland found:

“Plainly, section 10 of the Equality Act must be read consistently with section 16 of the Constitution. In order to achieve that result, all parties are agreed, that all three subsections of section 10(1) must be read conjunctively rather than disjunctively to achieve the alignment that produces that consistency. As a result the factor of ‘incitement’ must be present in the prohibited utterances.”

Trengove called the issue an “interesting debate”, but said it was not “necessary” for the flag case.

“The message publicly conveyed by those who wave the apartheid flag is a hurtful message. It is also a harmful message. It incites harm on racist grounds, and it propagates hatred, because it propagates the superiority of the white race over the black,” he said. He added that even if the court used the conjunctive approach, the display of the old flag was “manifestly in contravention of the section”.

Acting for Johannesburg Pride, Isabel Goodman argued the old flag was much more than just offensive. She said, “It’s not an offensive meaning. It’s a hateful meaning. It’s a hateful, harmful meaning and it is a meaning that is therefore unlawful under section 10.”

In his judgment, Mojapelo cited three dictionary definitions for the meaning of the term “hate speech”. He concluded it could be described as “speech that expresses hatred towards a person or his or her group based on race or other attributes such as religion, sex, ethnicity, sexual orientation and the like. It may even, but does not necessarily, encourage violence towards the group or a member of such group.” (Emphasis added.)

An additional footnote reads: “A dictionary definition of hate speech is hard to come by in old printed versions of dictionaries. However, the internet / website versions of some dictionaries do shed some light […].”

The judgement then sets out the relevant legislation and legal interpretive framework, but nowhere does it appear to explicitly deal with the problem of a conjunctive or disjunctive approach, nor does it extrapolate on the element of incitement. Out of an 80 page judgment, two pages expressly deal with freedom of expression. Mojapelo however held that AfriForum’s reliance on this right was “illogical and misplaced” and it was therefore dismissed.

IV

The hate speech provision in the equality act furthermore states that it regulates “words”, and AfriForum made the case that it does not prohibit images or symbols.

The NMF however said a plain interpretation of the word “words” would lead to an “absurdity”. This was because someone would be prohibited from calling a black person a “baboon”, but not from super-imposing a black person’s face onto the body of a baboon. The organisation said the court should therefore interpret the section to be “consistent (or more consistent) with the Constitution”.

Trengove argued that the word “words” in the section did not mean “words”. However, should the word “words” indeed be found to mean “words”, the commission would push for the section to be declared unconstitutional. He said hate speech implied “hatefulness conveyed by any means”.

“We know that in our society there are any manner of insults that can be conveyed by pictures or hand gestures or by conduct,” he said. “The section ought to be interpreted to prohibit any hateful expression of ideas and not merely if done by words.”

AfriForum said interpreting the word to include symbols would “radically distort the ordinary meaning of the term”. The organisation argued that while the legislature had the power to prohibit expression in the broad sense – over and above “words” – it was under no obligation to do so. 

The fundamental issue was instead about separation of powers. “The proper function of a court is to reasonably interpret the legislation that was drafted by parliament, not to supplant the legislative powers that parliament has,” Oppenheimer said. “It is not the role of this court to pass legislation that it would prefer to be the case. It is the job to interpret the legislation that has been delivered.”

What is curious is that both the SAHRC and the Department initially supported the notion that “words” meant “words”. Oppenheimer said both had done an “about-face” in their arguments, because in their original affidavits, the organisations stated as follows:

The SAHRC said the section “restricts the type of expression to words only” and that “symbols, pictures, and other non-verbal forms of communication, such as the display of the flag, can never be considered hate speech under PEPUDA”. (Emphasis added.) The Minister agreed. “The commission is correct in noting that […] hate speech is a prohibition that pertains only to words […]” (Emphasis added.).

In his judgement, Mojapelo found the term “words” must be given “a generous and wide meaning” that could include “speech, ideas, ideologies, beliefs, meanings, instructions (etc)”.

He said the equality act had to “give effect to ‘the letter and spirit of the constitution’”, and the constitution did not protect “advocacy of hatred, based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”. The term “words” could therefore not bear a literal interpretation. The act had to be read as prohibiting “any ‘advocacy of hatred’”, which meant “any expression of ideas.” The judgment does not however elaborate on the second part of the injunction, which is the need for an element of incitement or call to action.

Mojapelo therefore found that hate speech meant “advocacy of hatred by any means, whether by word or conduct”. The judgment cites the Islamic Unity constitutional court case that stated:

“[…] What is not protected by the Constitution is expression or speech that amounts to ‘advocacy of hatred’ that is based on one or other of the listed grounds, namely race, ethnicity, gender or religion and which amounts to ‘incitement to cause harm’.

The judgment again emphasised the phrase “expression or speech”, but not the sentence regarding that which “amounts to incitement to cause harm’.”

Mojapelo ultimately held that limiting hate speech to words only was “irrational, clearly unlawful and must be rejected.”

VI

Freedom of expression is not the only civil liberty eroded by this precedent. Another fundamental right – the right to privacy – is similarly affected.

The NMF argued the old flag in “all-white homes, suburbs and schools” was not “necessarily ‘hurtful’”, but that these displays still amount to hate speech because they objectively demonstrate “an intention to ‘be harmful or to incite harm’” and to “promote hatred”, because children come into contact with it and then later express racist views. The organisation therefore argued any gratuitous display showed a “clear intention” to be hurtful, harmful, and to promote hatred against black people – and this applied “even if no black people are exposed to it.”

Ngcukaitobi said:

“In South Africa, white people, although they dominate black people, but they live alongside black people, there is no home that does not have a domestic worker. No home that does not have a gardener, and no home that does not have visitors. And the idea that you can somehow insulate this flag, by displaying it in your bathroom, does not answer the question of the gratuitous display. So ultimately, so long as there is a potential, [a] possibility, a probability, that black people who are offended by the display of the flag will come into contact with it, it is permissible for the court to effectively declare those displays as unconstitutional. So the distinction that’s drawn between private and public is an illusory distinction in the context of this case.”

He added, “You are grooming your children to become white supremacists, but you are also causing offense to African people that work in the most instances as domestic services or sometimes as gardeners”. A declaratory order was therefore needed because of this “asymmetry of power” that “ultimately leads to domination”.

AfriForum said the relief sought by the NMF was a “clear contravention” of the right to privacy. “Everyone has the right to privacy, which includes the right not to have their personal home searched, their property searched, their possession’s seized, or the privacy of their communications infringed,” Oppenheimer said. “The right to privacy embraces the right to be free from intrusion – interference by the state and others – into one’s personal life”.

Mojapelo however held that “any” gratuitous display of the flag was hate speech, including those in private spaces. “Despite years of apartheid rule, the lives of various races in South Africa have never been compartmentalised,” he said. “There is therefore hardly any space which is private to the one race to the exclusion of the other.” Private displays were therefore “equally unacceptably offensive and ‘hurtful’”. He said this was because “black people are invariably employed and exposed in other ways to such spaces.”

VII

The case centred on a dispute of law and, at the heart of the matter for the applicants, was the need to strike a balance between freedom of expression and the right to dignity and equality. It was however never predicated on AfriForum having waved any flags. As Oppenheimer said, “There is no flag-waver in this court”. Intimations to the contrary were however repeatedly made during the proceedings.

Ngcukaitobi argued the court should not accept the organisation’s “denial attitude”. He claimed, “Television does not lie. The pictures do not lie. This was there for everybody to see.” He then added that AfriForum’s intentions seemed unclear, and so it was necessary to “read between the lines”. He said, “Not only do they yearn for the good old days, what they yearn for is the idea of the white man being master. The baas ideology.”

“We have not come to ask AfriForum and its supporters to stop racism and to stop their own racism,” he said. “We have not even come to ask that they should stop grooming their children to become racists and white supremacists.”

Instead, what the NMF sought was to stop “speech that dehumanises” black people on the grounds of race and group identity. “We’ve come to assert black people’s dignity. We’ve come to assert black people’s right to equality. We have come to assert black people’s right to freedom,” Ngcukaitobi said. The declaratory order was therefore “not a ban”. Rather, it was “an assertion, and affirmation, that black people count!” 

Conclusion

Defending freedom of expression under the banner of the old flag is not about encouraging its display, nor a defence of apartheid. South Africans rejected both of these a long time ago. Instead, it is about the totalitarian implications of the kinds of legal precedent that some organisations seem intent on setting.

As has been shown, not all so-called “gratuitous” displays fall foul of the hate speech provision. South Africans of all races who choose to display the flag, either as a form of carefree expression or to mark their political discontent, have been robbed of this freedom. The danger of limiting civil freedoms is that, in time, it will no longer be restricted to an old flag. Not only has the threshold for finding hate speech been lowered, but the realm of prohibited expression has also been expanded to include more than “words”, even in the privacy of individuals’ homes. This would mean, for example, that hurtful drawings – of whatever nature – lying crumpled up in sock drawers could in future suffice for making hate speech claims.

Apartheid was plainly a racist and authoritarian regime, but the threats it posed were due to the statist might it wielded, coupled with its profound social conservatism. A better approach would be to reject what the old flag represented, and instead choose to embrace the values that underpin a free society. This will be the subject of Part III in this series.

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