Mojapelo did not mince words in addressing the Old Flag’s discriminatory symbolism under apartheid South Africa, in which black Africans and other people of color were legally segregated from white people from 1948 until the early 1990s.
“The dominant meaning attributable to the Old Flag, both domestically and internationally, is that it is for the majority of the South African population a symbol that immortalizes the period of a system of racial segregation, racial oppression through apartheid, of a crime against humanity and of South Africa as an international pariah state that dehumanized the black population,” the judge wrote.
Gratuitous display, he wrote, “visually communicates a message of the belief in or support of racism, white supremacy and the subjugation of the black population.”
The Equality Court’s decision does not create a new law, but rather offers a specific interpretation of the preexisting Equality Act — a request brought by the Nelson Mandela Foundation Trust and backed by the South African Human Rights Commission and Johannesburg Pride.
The Mandela Foundation’s motion cites a demonstration in October 2017 in which some protesters displayed the Old Flag, including members of a group called AfriForum, a nonprofit that represents the interests of descendants of white European colonizers in South Africa.
AfriForum opposed the Mandela Foundation’s motion, claiming that the Equality Act expressly regulates only “words” and not symbols, and that it does not regulate displays of the Old Flag.
But the judge ruled against AfriForum’s argument, writing that it was “racist” and “discriminatory” and that it demonstrated a clear intention to “be hurtful,” to “promote and propagate hatred” and to be “harmful” and “incite harm.”
The judge acknowledged that the meaning of the flag was “unfortunately still divisive.”
To “those who did not suffer and benefited under the pre-democracy rule,” the Old Flag is a symbol of heritage. To the “victims” and those “genuinely opposed to the apartheid rule,” the flag is a reminder of an era of government-sponsored racism that took generations to overturn.
Apartheid ended and a new era of democracy was ushered into South Africa with the 1994 election of Nelson Mandela, the nation’s first black president. On Wednesday, the Mandela Foundation celebrated its victory.
“We have started a conversation about what matters to South Africans, how to remember the past and what the past means for us today,” the organization said in a statement. “Gratuitous displays of the old flag express a desire for black people to be relegated to labour reserves, a pining for the killing, the torture, the abductions, a melancholia for the discrimination, the death squads, the curfews and the horrific atrocities committed under the flag.”
AfriForum’s head of policy and action, Ernst Roets, said after the ruling that his organization disagreed with the judge’s interpretation of the Equality Act.
“Simply displaying it, in our view, is not sufficient for it to be hate speech,” Roets told reporters Wednesday. “For it to be hate speech, it has to be coupled with some form of a call to action to inflict harm or something to that effect.”
That more conservative interpretation of the Equality Act is similar to how justices of the U.S. Supreme Court have long viewed free-speech cases. Hateful speech, be it written, spoken or captured in a symbol, is not on its face a crime and is protected by the First Amendment, the court has said.
In the United States, a person is within their constitutional rights to use racial epithets, wear the Nazi swastika or wave a Confederate flag. Those activities do not constitute a hate crime unless they are accompanied by another illegal act, such as theft, assault or vandalism.
“Bottom line is, in the United States, possession of hateful material is not in and of itself punishable,” said Brian Levin, director of the Center for the Study of Hate and Extremism at California State University at San Bernardino.
Decades of Supreme Court precedent would make a move like South Africa’s unlikely in the United States, Levin said, even for something like the Confederate battle flag — which in recent years has been wiped from public places alongside statues of Confederate generals because of its racist history.
Though that reckoning has put pressure on elected officials to reevaluate the country’s relationship with that chapter of its history, the symbol itself is not illegal.
“Prosecutors can use evidence of racial hatred to prosecute a hate-crime case,” Levin said. “But in and of itself, the display of a Confederate flag is constitutionally protected.”