We should treat the old SA flag the same way we treat a penis

In case you missed it, the Supreme Court of Appeal last week declared that the definition of hate speech that’s been used in numerous recent court cases is not constitutional.

The Constitutional Court will have to confirm the ruling, and then it will become law in 18 months whether parliament can be bothered to amend its Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) or not.

ALSO READ: An explainer on the hate speech vs freedom of expression judgment

I’m no legal expert, but the ruling makes sense. The primary problem with Pepuda was that it allowed things that some of us might consider “hurtful” to be considered hate speech, which is a concept you won’t find in the Constitution itself.

Thanks to Pepuda, we ended up with a broad and fuzzy definition of hate speech, to the point that even slurs and insults started being called hate speech.

Over the past year or two I nearly came to accept that I no longer understood what hate speech is, and should stay out of debates about it, especially after “gratuitous displays” of the old South African flag were adjudged by the high court to be hate speech.

That ruling was only possible because Pepuda had expanded the grounds of hate speech to include just about anything: language, convictions, disability, pregnancy, colour, culture, and much more – as long as someone felt “hurt”.

The legislators who created this law no doubt meant well, and some might think it would be great to live in a world in which you can encounter no comments or symbols that might offend you or hurt your feelings. But the idea that all of us will need to police our opinions and ideas, or have them policed by others, on the basis that someone else might feel pained, is not a progression in the fight for human rights and dignity. It’s repression.

When the public radio station in Rwanda called for people who already had machetes in their hands to go and “kill the cockroaches”, then obviously that was hate speech, and nearly a million people ended up being slaughtered. Similarly, if one of our politicians with a loyal following incites followers to go and harm a perceived enemy, that’ll be hate speech.

People whose words have the power to cause harm need to be aware they have a responsibility to wield that power carefully. We should always come down hard on real examples of hate speech and punish it accordingly, instead of watering the concept down by expanding it to include things that are “just” offensive, even if they are shockingly offensive to some.

Basically, there should be a clear distinction, for example, between someone saying they don’t like a certain group of people and find them disgusting, and someone saying that anyone from that group should be beaten up or killed at any available opportunity.

We still have crimen injuria laws to cover people’s right to dignity if someone’s words have harmed them. As Public Enterprises Minister Pravin Gordhan recently discovered in his attempted hate speech case against EFF leader Julius Malema, the comments that called him a “dog” were hateful, but not hate speech.

And as for the old flag, the new ruling will probably reverse the finding that its display is hate speech, even though last week’s judgment is not meant to be retrospective. AfriForum are continuing their appeal and will have a press conference about it tomorrow. They’re probably feeling triumphant.

Does all this mean we should accept we are stuck with this noxious old flag and that people will in future once again get away with displaying it?

I once argued that we should let the racists fly their flag, even though I was also, mostly, supportive of a ban. I’m now entirely for a ban. It’s too appalling that anyone would think it’s still a cool idea to display the flag, and we should not be so permissive of free expression that we look the other way. It’s a bad look for both sides.

I’m not sure if we could find a way to ban the old flag that is consistent with the Constitution, but why not? We could even treat it in the same way we do the laws that prohibit public indecency.

In Germany, their legislation considers swastikas “symbols of anti-constitutional organisations”. They banned the swastika not because their courts felt it was “hate speech”. They banned it because it was the right thing to do, and it’s now written into their laws. If you want to be a German citizen and live in that country, that’s one of the conditions, and if you don’t like it, you can leave.

In the same way, we could make it a rule for anyone still wanting to live in this by now not-so-new South Africa that you can’t just go around waving that despicable thing in another person’s face.

It’s high time for us to treat the apartheid flag in the same way we treat penises. Even if you have one, and even if you’re very proud of it, most of us really don’t want to see it and we should throw you in prison if you whip it out in public or, at the very least, book you into an institution for some psychiatric help.

Citizen digital editor Charles Cilliers

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