Twenty-five years after the apartheid flag was abolished and replaced with the current one, which represents colours symbolising unity, the gratuitous display of the old flag has now been ruled to be hate speech. 

The apartheid flag was adopted in 1928 after the unionisation and reflected the flags of the Netherlands, Britain, the Orange Free State and South African Republic. From 1928, and throughout the apartheid years, the flag was widely displayed.

The Gauteng High Court in Johannesburg on Wednesday declared the “gratuitous display”of the flag as constituting hate speech in terms of Section 10(1) of the Equality Act, unfair discrimination in terms of Section 7, and harassment in terms of Section 11 of the act.

What does the word gratuitous mean?

The Oxford Dictionary explains the word to mean having “no justifiable reason or purpose”. This means that anyone who does not have a defendable reason to publish or display the flag may not do so, as it may be hurtful to South Africans who suffered greatly in the years of the apartheid regime. 

Section 10 of the Equality Act

Section 10 of the Equality Act states that “no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, 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”. 

When can one display the flag

The order handed down by Judge Phineas Mojapelo does not mean that the old flag has been entirely banned. It may still be used for purposes of genuine artistic, academic or journalistic expression that is in the public interest.

The court, however, 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 (in terms of Section 12 of the Equality Act). 

Can the flag be used in private spaces?

While some would question the display of the flag in people’s homes, the judgment suggests that there is hardly any space that is “private” to one race and to the exclusion of another, especially in a democratic South Africa.

It states that the display of the apartheid flag in private spaces, such as homes and schools, is therefore, equally unacceptable and 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,” Judge Mojapelo said.

The flag will, however, still be able to be used by journalists to illustrate a story, and in museums where the history of the country is displayed.

It can also still be used in history exhibitions where it is relevant. The whole point of its use is that it should be in a certain context.

All in all, the flag can be used as long as it is not displayed in a way that demeans, humiliates and creates a hostile intimidating environment for victims of apartheid and its legacy, as the Nelson Mandela Foundation had argued.

The main point of judgment

The judgment does emphasise that in no way is the flag being banned, but what it simply states is that it must not be forgotten that there are people, particularly black people, who have wounds because of the injustices of apartheid, and therefore the display of the flag for no purpose is hurtful to them.

It cannot be displayed gratuitously by people who hold certain opinions that may be racist.

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