As South Africa reckons with history, court restricts its ‘Old Flag’

Why We Wrote This

Can a symbol infringe on people’s rights? It may seem odd to debate whether a flag with no words counts as hate speech. But to many South Africans, the apartheid-era flag speaks volumes.

Denis Farrell/AP
Nelson Mandela Foundation's CEO Sello Hatang (center) speaks to the press on the steps of the Johannesburg High Court on Aug. 21, 2019. South Africa's Equality Court restricted the display of the old apartheid-era flag, ruling that its gratuitous use amounts to hate speech and racial discrimination.

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When South Africa’s “Old Flag” was first created, it was meant as a symbol of unity between British settlers and Dutch-descended Afrikaners. To most South Africans, though, that flag now represents the opposite: decades of segregation under apartheid.

The debate has more than a bit of resonance with U.S. discussions over the Confederate battle flag. But where U.S. law has generally erred toward protecting the freedoms of those who fly it, South Africa has taken a different direction. 

Last week, a court ruled that many displays of the flag constitute hate speech, discrimination, and harassment. The right to use it more widely had been supported by two Afrikaner groups, who argued it was a matter of free speech. “Not a single person is going to be more prosperous in this country because the flag is banned,” says Ernst Roets, of the advocacy group AfriForum.

But opponents claim the flag represents such a dehumanizing system that it threatens citizens’ dignity and equality. 

“There’s been a lot of posturing that we’re a rainbow nation where everyone wants the same things,” says recent university graduate Gugu Resha. “But this [flag issue] is showing the cracks in that story we tell ourselves.”

The flag meant cultural pride. Or it meant hate, pure and simple. It was the icon of a proud history, or a shameful one. It symbolized heritage. It symbolized racism.

Thousands of miles from the American South, the debate that has played out in recent months over whether to restrict the use of South Africa’s apartheid-era national flag has a familiar ring to it.

For the small group supporting the right to display the flag – once the banner of South Africa’s white minority state – the case was about freedom of speech, no matter how offensive. Ban the flag, they argued, and the country’s young democracy would risk limiting the very liberties that countless people had fought and died for in the struggle against apartheid.

For those who supported restrictions on the flag’s use, the banner provoked a violent, degrading history. It had no value in the new South Africa. Like Germany and other European countries that restricted icons associated with Nazism, they argued, the country should recognize some symbols as too hateful and demeaning to be considered free speech.

But if in the United States legal conversations around the Confederate battle flag have generally erred toward protecting the freedoms of those who fly it, in South Africa the same conversation has taken a different direction. Last week, a court here ruled that the flag was a “vivid symbol of white supremacy and black disenfranchisement” and should be banned from display in most contexts. (Educational purposes like museums and journalism, as well as artistic works, were exempted.)

The flag “is a symbol that immortalises the period of a system of racial segregation, racial oppression through apartheid, and of South Africa as an international pariah state that dehumanized the black population,” wrote Judge Phineas Mojapelo, the high court judge who ruled in the case on behalf of South Africa’s special equality courts. “Gratuitous display of the Old Flag constitutes prohibited hate speech, unfair discrimination, and harassment.” 

Reuters/File
Afrikaner children carry flags of the old Boer Republic (right) and the flag South Africa used from 1928 to 1994 (left) during commemoration ceremonies for the centenary of the Boer War. Earlier this month, a South African court ruled that many uses of the "Old Flag" constitute hate speech.

In many ways, the decision is part of wider reckoning in South Africa with symbols of its racist past. Dec. 16, a date that once celebrated colonial-era military conquest, has been replaced with a public holiday commemorating “reconciliation.” Towns have rechristened hundreds of roads named for apartheid and colonial leaders, and in some cases they’ve even changed their own names. Monuments – like the pensive statue of British Empire-maker Cecil Rhodes that sat for decades at the center of the University of Cape Town – have been removed from their perches after protests.

That conversation has rarely been easy. And in a country where people were deliberately and rigidly separated for generations, opinions on the country’s past can be equally distant from one another.

“We’re just not all on the same page when it comes to discussions of our past,” says Gugu Resha, a recent university graduate and the author of the op-ed “Old flag debate is a symptom of a deeper malaise.” 

“There’s been a lot of posturing that we’re a rainbow nation where everyone wants the same things – to have a peaceful country, to have a united country. But this [flag issue] is showing the cracks in that story we tell ourselves.” 

The “Old Flag,” as it was called in court filings, was the flag of a series of governments in South Africa directed by the country’s white minority – which has always made up less than 20% of the country’s total population. It was inaugurated in the late 1920s as a symbol of unity between South Africa’s British settlers and the Afrikaners, a community of mostly Dutch descent that had been living in the region since the 1600s. 

But it remained the flag throughout the apartheid era, the political system of extreme segregation in place between 1948 and 1994, becoming a prominent global symbol of the country’s violent white minority rule.

It has also proved an enduring one. White supremacist Dylann Roof, for example, who killed nine people in an African American church in Charleston, South Carolina, in 2015, posed for a Facebook profile picture in a jacket with the old South African flag stitched onto the breast.

When hundreds of white South Africans gathered in 2017 to protest the killings of white farmers, which some far-right figures have cast as part of a supposed threat of “genocide,” a number of protesters flew the old South African flag. (The notion that there is a campaign of violence against white farmers has been debunked by several sources.) 

The protests spurred the Nelson Mandela Foundation, the nonprofit started by the former South African president, to file a court challenge. It asked to severely restrict the flag’s use on the grounds that it was shorthand for supporting a system that deprived black South Africans of their fundamental rights, and thus threatened the dignity and equality of the majority of South Africa’s population. The flag, argued the foundation’s lawyer, Tembeka Ngcukaitobi, was the “most visible symbol of the dehumanising effect” of apartheid on black South Africans.

The flag’s use was supported by two groups representing the Afrikaner community, AfriForum – which often takes on court challenges related to “minority rights” in South Africa – and the Federation of Afrikaans Cultural Associations (FAK). (Afrikaans-speaking white South Africans constitute about 5% of the country’s population.) FAK argued that the flag had “culturally historic value,” while AfriForum contended the flag should be permitted on free speech grounds, and claimed attempts to limit its use were politically motivated.

“The ruling elites can see that their project is failing and they need to do something to show to people that they’re still fighting the revolution,” says Ernst Roets, head of policy and action for AfriForum. “Not a single person is going to be more prosperous in this country because the flag is banned.”

But the court “argued that symbols need to be regulated,” says Ottilia Anna Maunganidze, a legal analyst and head of special projects at the Institute for Security Studies in Pretoria. “Not that they don’t exist. Not that they aren’t a part of history. But that when they’re symbols of hate and oppression they ought to be viewed as such, and considered not as protected speech but as hate speech.”

For Ms. Resha, who was born after the end of apartheid, the continued debate over the flag is a reminder that the history she was taught to consider over and done with still lives in the present.

“History isn’t apolitical. History is made by people – people who can choose the symbols that are important to us,” she says. “We created a new [national] flag; we can create other new symbols of who we are as a nation, too.”

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