Apartheid-era flag represents white domination over black bodies, argues Ngcukaitobi

The Supreme Court of Appeal (SCA) has heard that the apartheid-era flag in contemporary South Africa, “continues to represent white domination over black bodies”.

This was the argument from the Nelson Mandela Foundation (NMF) on Wednesday, during the lobby group AfriForum’s bid to overturn the Equality Court’s judgment in 2019 that declared the “gratuitous displays” of the flag hate speech.

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The court had ruled in favour of the NMF and the SA Human Rights Commission after they approached it, asking that the exhibition of the flag in public and private spaces be stopped.

This followed the Black Monday protests in 2017 against farm murders in which the old apartheid flag was displayed.

‘Affront to the dignity of Africans’

Advocate Tembeka Ngcukaitobi, acting on behalf of the NMF, told the SCA AfriForum’s appeal should be dismissed with costs because the flag continued to be an affront to the dignity of Africans.

“It is also an affront to people of any race who support humanity because this is a reminder of the crime of apartheid…

“The contemporary meaning, I’m afraid, has not changed. It is still the domination of white racists over black bodies. It is still yearning for the return of a past that is gone,” he said.

Ngcukaitobi was responding to AfriForum’s lawyer, advocate Mark Oppenheimer, who had earlier argued that courts cannot ban a flag or any other symbol “in the abstract” without knowing the context of the particular circumstances that informed an individual’s motivations.

He said the flag in post-apartheid South Africa could be used for “illustrative purposes” by demonstrators, but this did not mean it had anything to do with race.

“There is an enormous difference between using a word to undermine someone’s dignity and denigrate them versus using the word for illustrative purposes,” Oppenheimer said.

He argued that just because the apartheid-era flag had a particular dominant meaning in the past, its display in contemporary South Africa did not mean that it endorsed the old meaning.

“A community that’s engaged in a service delivery protest [and] waves the South African flag, it’s not a communication about race; it’s a communication about the present government failing to deliver services.”

‘Symbol of racism’

Ngcukaitobi said the display of the apartheid flag during the Black Monday protests had no connection between the old flag and the killing of white farmers.

“It continues then this role of being an affront to humanity,” he said.

Ngcukaitobi added that the old flag was a symbol of racism and had not been transformed in the contemporary age.

“Anyone who continues to display the flag today, endorses the crime against humanity, the attack on black dignity and the supremacy of whiteness.”

In his 2019 judgment, Judge President Phineas Mojapelo ruled that, while he did not entirely ban the use of the flag, he declared its “gratuitous displays” hate speech.

He ruled that the exhibition of the flag not done for journalistic, artistic, and academic purposes amounted to hate speech, unfair discrimination and harassment.

The NMF asked for a costs order should AfriForum’s appeal bid fail.

Judgment in the matter was reserved.

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