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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It is unclear what expertise Indian dairy producer Paras brought to the Vrede dairy project.

Testifying at the state capture commission of inquiry, the former head of the Free State department of agriculture, Peter Thabethe, said he was not sure what exactly the company had brought with them from India.

“There was a stage when they indicated that there was a vet on site, but I am not really sure exactly what expertise overall,” Thabethe told the commission.

He added: “I think Dr [Tskisi] Mastieng would have maybe known exactly what expertise was on site.”

This is despite Thabethe’s previous testimony that the department had brought Paras on board because they possessed the required expertise which the project needed in dairy production.

Commission head Deputy Chief Justice Raymond Zondo was quick to point this out.

“Part of my concern is that the size of this project and the money that the department was going to put into it were such that I would have thought that, as head of department, you would have wanted to establish whether the expertise that you so much wanted to have from Paras, was the expertise that came.”

He added: “At a certain stage I would have thought that you would want to go inspect and see how everything was like, and see that everything was as contemplated in the plan…”

Zondo said this was something deserving of a head of department’s attention who had placed himself as one of the project leaders.

Previous evidence from Vrede businessman Willie Basson indicated he was unhappy with what Paras had to offer.

Basson said he was disappointed with the three Indian nationals who had not brought any equipment with them to do their job.

He added the quality of the materials brought from India were second hand, of bad quality and rusted.

Thabethe, however, said he had not heard anything about substandard materials.

“Myself personally, I did not go verify each and every stage when people were coming to say, ‘is it indeed the people we expected that were coming’.

“Maybe because I had confidence in the team I was working with, because I understood that if there was any problem [they would say so],” Thabethe explained.

Despite his leadership role within the project, Thabethe seemingly had little idea of what was happening on the farm.

When the Free State development corporation took over as implementing agent from Estina, the commission heard, there was still little due diligence done beforehand, and afterwards, little oversight over its work.

Thabethe, however, maintained this was untrue because they were provided with reports from the implementing agent, which would then be used for verification purposes.

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A detective who in recent years solved three of Stellenbosch’s most high-profile murders on Monday found himself in the dock of the Franschhoek Magistrate’s Court on a culpable homicide charge.

Sergeant Marlon Appollis, now of the Anti-Gang Unit, allegedly shot and killed Sergeant David Hoffman while at Hoffman’s relatives’ home on Saturday night.

READ | Manhunt launched after cop shot dead in Cape Town

Appollis objected to an application for him to be photographed in the dock, saying he had “lost a friend” and did not want what happened to be turned into a “media frenzy”.

He said the cases he handled were sensitive and high profile and could result in his family and his own life being endangered.

Hoffman’s wife Ashley Carmelita also opposed the application, tearfully saying that she wouldn’t want to put Appollis’ family at risk.

“I know his children. I don’t want to be the reason his and their lives are in danger.”

Appollis wept in the dock.

The application by Netwerk24 was allowed.

READ | Cop killed, two others seriously injured in Cape Town shooting

The court heard that the senior State prosecutor had found that the evidence in the docket showed that a charge of culpable homicide was deemed appropriate after the docket contents were considered.

Social braai

The matter was postponed to September 26 for the director of public prosecutions to make a final decision on whether Appollis should face further charges.

According to the Independent Police Investigative Directorate (IPID), which is probing a case of death as a result of police action, a 41-year-old suspect fatally shot his colleague, who police have identified as Sergeant David Hoffman, at a house in Franschhoek on Saturday at about 22:40.

“It is alleged that there was a social braai on a private premises, which was attended by both the deceased and the suspect,” IPID spokesperson Sontaga Seisa said.

“The two police officials were off duty.”

At the braai, Seisa said it was alleged that the suspect “pulled his service firearm and shot dead colleague”.

The bullet is understood to have hit Hoffman in the head.

Van Breda, Cornelius and Rohde investigations

“The motive of the killing is still unclear. The IPID investigation is continuing.”

Appollis was one of Stellenbosch’s top detectives before he was transferred to the Anti-Gang Unit.

In July 2018, the court sentenced Henri van Breda to three life sentences for using an axe to murder his mother, father, and brother at De Zalze Estate in 2015. The motive for the murder is still unknown.

Later that year, three men were sent to jail for the murder of Hannah Cornelius, whose body was found in May 2017 at Groenhof farm, roughly 20 minutes outside of Stellenbosch, where she had been raped and stabbed.

He was also the investigating officer in the case of Jason Rohde, who was sentenced to 20 years in prison for murdering his wife of 22 years, Susan Rohde, in a hotel just outside Stellenbosch in July 2016.

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Two murdered homeless men – who are among five suspected victims of the so-called nocturnal prowler – have finally been laid to rest, almost two months after the discovery of the fifth body in Muckleneuk, Pretoria.

The bodies of the five men were discovered in different parts of the suburb in June this year.

Police have not confirmed that they suspect the killings were the work of a serial killer, but they have dubbed the perpetrator the “nocturnal prowler”.

To date, only three of the victims have been positively identified.

Brigadier Mathapelo Peters confirmed to News24 on Tuesday that police have managed to locate the families of two of the three victims and notified them.

They have been buried and “police still need to locate next of kin of the third victim”, Peters said.

Peters said police would not be disclosing the identities of the victims because the matter was still under investigation.

Developments

Peters also confirmed that there were no further killings which formed part of the investigation.

Although a suspect has not been identified for the five murders, police arrested a man in June who has been accused of stabbing a homeless man in Sunnyside in May.

The man was initially arrested in connection with the attempted murder of another homeless man in February, in Muckleneuk. The National Prosecuting Authority (NPA) declined to prosecute this matter and referred it back to police for further investigation.

The police and the NPA said the man was not connected to the murders of the five men in Muckleneuk.

Five bodies found

According to police, the first body was found in a veld near the Mears Park train station on June 1. Two more bodies were found in Magnolia Park on June 8 and 9.

A fourth body was found on a pavement on the corner of Justice Mohammed and Troye streets on June 18, and a fifth body was discovered a day later, on June 19, at a bus stop about 400m from Unisa’s main campus, also in Muckleneuk.

READ: ‘I am scared’ – homeless man in Tshwane fears attacker’s return

Police said the five victims were homeless, middle-aged males. They were all killed at night.

News24 also understands that victims were either stabbed, suffered blunt force trauma or injuries inflicted in both manners.

Survivors

News24 also previously confirmed that two homeless men, who might have been attacked by the nocturnal prowler, were interviewed by the police.

Peters previously told News24 the task team had established that the two had survived similar attacks in the area.

They had not approached the police about the attacks until recently.

READ: EXCLUSIVE | Homeless Killings – Nocturnal prowler a balaclava-wearing lone wolf

The men reported that their attacker had worn a balaclava, attacked them during the evening while they were sleeping, and acted alone.

News24 also spoke to one man who believed he might have been the first victim of the nocturnal prowler when he was attacked in May.

The man, recounting his ordeal, said the attack happened at around 03:00 and his attacker was wearing a black hooded jacket and wielding a large knife.

“I was the first to be stabbed,” he claimed. “I was sleeping, he was silent and just started stabbing me. He didn’t say anything.”

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A baby abandoned in a blue carry bag near Johannesburg’s busy MTN taxi rank was saved by the quick thinking of two Johannesburg Metro Police Department officers on Thursday night. 

JMPD spokesperson Xolani Fihla said on Friday that officers Nathi Mkhabela and Richard Makhuvele of the recovery unit were patrolling the inner city when they noticed a group of street children huddled together, staring at something.

Mkhabela went over and when he got closer, he heard a baby crying. 

The infant had been abandoned in the bag on the corner of Plein and Quartz streets. 

He brought the recovery truck closer to protect the scene and called emergency services for help. 

“The baby was crying profusely so officer Mkhabela picked the baby up and at that moment, the baby stopped crying,” said Fihla. 

The officers took the baby out of the cold night air and turned up the heater in their truck to keep the little girl warm until the ambulance arrived for her.

Paramedics checked the little girl and estimated that she was three to five days old. 

She was taken to Charlotte Maxeke Johannesburg Academic Hospital for observation and social workers will decide what to do next. 

Messages of appreciation for the officers were posted on the Facebook profile of JMPD chief David Tembe.

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