Black South African “Equality Court” judge Phineas Mojapelo has ruled that the further “gratuitous” public display of the old South African flag constitutes “hate speech” in that country, and that anyone saying that displaying it will be prosecuted—even if it is inside their own private house.
Ruling in a case brought by the “Nelson Mandela Foundation” and the “Human Rights Commission”—both Communist Party front organizations—Judge Mojapelo dismissed a counter argument from agricultural union Afriforum, who argued that waving a flag fell under freedom of speech.
In a final submission before the court in April, the Nelson Mandela Foundation’s legal representative, advocate Tembeka Ngcukaitobi, said there were limits to freedom of speech, which should also apply to the display of the flag. Afriforum argued otherwise, saying although it condemned the use of the old flag, it should not be declared hate speech.
The old flag is made up of the three colors (orange, white, and blue) of the 17th Century Dutch “Prince’s Flag” used during the Dutch Revolt led by Prince William of Orange against Spanish Hapsburg rule in the Netherlands, with three smaller inset flags. The three smaller flags are those of Britain, and the two 19th Century Boer Republics of the Zuid Afrikaansche Republiek (ZAR, also known as the “Transvaal”) and the Oranje Vrijstaat (the “Orange Free State”). It was first introduced in 1928 to unify the “Boer and Brit” elements of the white population, and was abolished as the national flag when the ANC came to power in 1994.
The flag has however regularly been shown in public by protesting whites, achieving particular prominent during the nationwide “Black Monday” protests organized by Afriforum in October 2017 in an attempt to bring the racially-motivated black-on-white murder plague on South Africa’s remaining white farms to international public attention.
“Afriforum’s defence of freedom of speech is illogical and is therefore dismissed,” Mojapelo said, adding that the judgment was “not a banning order against the old flag.”
However, for all practical purposes, the order is a banning. Although the flag may still be used for purposes of genuine artistic, academic or journalistic expression that is in the public interest, Mojapelo ruled that any display beyond that may be brought before the Equality Court and an individual who displays it would have to prove that they were doing so for a “defendable reason.”
Mojapelo also ruled on the display of the flag in people’s private homes, saying that there is “hardly any space that is private to one race and to the exclusion of another, especially in a democratic South Africa.”
Therefore, he ruled, the display of the flag in private spaces, “such as homes and schools, is equally unacceptable, offensive and hurtful” because black people are invariably employed and exposed one way or another to the “private spaces.”
“The display in such spaces thus also constitutes hate speech under the Equality Act, as it ostensibly demonstrates an intention to be ‘harmful or to incite harm’ and ‘promote and propagates hatred’ (Section 10(1)(a)-(c), by propagating to others, including children that apartheid and how it treated black people was acceptable,” Mojapelo said.