It seems most South Africans are in support of a decision to officially declare the gratuitous display of the old South African flag as hate speech, harassment and unfair discrimination. On Wednesday, the Equality Court in Johannesburg ruled that the public display of the apartheid flag is now illegal and there would be serious penalties for offenders.

The case went to court after a complaint by the Nelson Mandela Foundation over the display of the flag during Black Monday protests against farm murders in 2017. On Wednesday, Judge Phineas Mojapelo said the display of the old flag gratuitously demeans and dehumanises on the basis of race and “impairs dignity”. Afrikaaner advocacy group Afriforum, who support the use of the flag on the basis of freedom of speech, expressed their unhappiness with the judgement.

The old flag has now been confined to academic, artistic and journalistic purposes. The presiding judge specified that the ruling was not a banning order against the old flag, but rather a “confining” thereof.

ANC spokesperson Pule Mabe said the judgment was a positive step towards the consolidation of a united South Africa.

“We believe that demonstrating any allegiance to apartheid symbols serves to undermine all efforts aimed at building a new democratic society that is based on the values of justice, equality and freedom.

In a statement, the Democratic Alliance agreed with the court’s decision that the apartheid flag be utilised to educate and inform.

“The total ban of the flag from our society would have deprived future generations of the full account of the country’s history – a history that we can never forget nor repeat; therefore the limitation on its use for academic research and journalistic purposes is a critical point of the judgement,” the party said.

But Ernst Roets, head of policy and structures at AfriForum, said clear definitions are needed to understand what constitutes hate speech and what are limits of freedom of speech.

“Our concern with this case from the outset has been that a judgment in favour of the NMF would not serve the purpose they intended, because state regulation with regard to freedom of speech in most instances results in bigger problems,” he said.

Head of Sustained Dialogues at the Institute for Justice and Reconciliation, Felicity Harrison says that the decision reflects a positive step forward toward taking reconciliation and justice seriously in South African society.

“The significance of the decision shows that as a society we are rejecting the values that the old flag symbolises and that we’re moving away from symbols that divide us, to having things which promote inclusivity and fairness,” said Harrison.

“The symbols of Apartheid continue to wound many sections of our society and these conversations are the ones we need to be having…This is a very important symbolic step for the country – we’re starting to take reconciliation very seriously.”

Harrison explained that while she cannot speak to the legality of displaying the flag in private settings, the flag must be understood within its broader context.

“I must admit that I’m not sure what this means for people who want to display the flag in private – I would suggest the Equality Court didn’t rule on the private display of the flag, they only ruled on the public display…[However] the flag is a violent symbol and it still manages to inflict trauma on those who were wounded by Apartheid.”

On the topic of the possible destruction and removal of other Apartheid symbols and statues, or the classification of such symbols being displayed as forms of “hate speech”, Harrison indicated that context is always an important factor.

“It was correctly pointed out that we need to have context for these old symbols [i.e. when they are displayed]. There are spaces in which context is recognised, including academic spaces, journalistic spaces and in artistic spaces.”

She advised that statues and other symbols associated with Apartheid could be transformed from symbols of pain and oppression into symbols of learning through appropriate contextualisation.
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