In a tweet following a landmark ruling late on Wednesday, AfriForum deputy leader Ernst Roets shared an image of the old South African flag, and wondered if he had just committed hate speech.
He appeared to have missed the point of a detailed court judgment earlier that day that indeed clarified that any gratuitous display of the flag can be considered hate speech, despite AfriForum’s impassioned attempt to oppose such a judgment.
Did I just commit hate speech? pic.twitter.com/mlXsF8OBN1
— Ernst Roets (@ErnstRoets) August 21, 2019
Many on Twitter were quick to answer his question for him.
— Charl du Plessis (@CharlduPlessc) August 21, 2019
The Equality Court ruled on Wednesday morning that badly intentioned public displays of the old South African flag, which its detractors often refer to as the “apartheid flag”, should be limited, since “gratuitous display” constitutes not only hate speech but also harassment, and could be interpreted as an expression of white superiority, divisiveness, and severe racial prejudice.
Judge President Phineas Mojapelo summarised the arguments in the case, pointing out that the case essentially rested on whether displays of the flag should be considered hate speech, or whether these displays should be permitted due to the constitution’s strong protections on freedom of speech.
Judge Mojapelo rejected the narrow definition of hate speech only as literal words, saying it should be given a wider interpretation and extend to symbols like the flag as well.
The judge argued that displaying the flag “does much more than merely cause emotional pain and stress to black people”, and that “it makes no difference” to his finding that “an isolated person somewhere” would not fully understand the meaning of the flag, which was dehumanising to black people. Those who displayed the flag were consciously choosing “oppression over liberation symbols, with the intent to incite and awaken white supremacist” ideologies, he said.
He said displays of the flag were offensive not only to black people but to members of the LGBTQ+ community.
Mojapelo added that the flag could be seen as “representative of apartheid” and remained divisive. Its display could fairly be seen as a message propagating hatred and hurtfulness and therefore constituted hate speech. He believed the display of the flag was an “affront to ubuntu (humanity)”.
He then summarised some of the key human rights violations during the apartheid era, which were enabled by numerous discriminatory laws and intended to entrench white minority rule, segregation and supremacy over the black majority in what the United Nations had condemned as a crime against humanity.
“The old apartheid flag, as it is sometimes called, was a vivid symbol of white supremacy and black disenfranchisement and suppression. It combined four flags: the British Union Jack, and [those of] the old Boer Republics. It gave expression to European heritage and heraldry and excluded black people entirely,” he said, quoting one argument from the Nelson Mandela Foundation (NMF) in the case, which he agreed with.
“It is unfortunately still divisive,” he said, which was why a new flag and identity was needed in 1994.
Mojapelo said the post-apartheid government had had the task of redressing historical imbalances. He said the right to display the flag needed to be balanced against protecting human dignity and human rights, particularly those of the formerly oppressed black majority. This would be particularly relevant if the flag was being displayed by the white minority.
The case saw lobby group AfriForum square off against the NMF, with the former arguing only words, not symbols and images, constituted hate speech according to the Equality Court’s definition.
AfriForum essentially took the view that banning the display of the flag would be a blow to freedom of speech. They also said the flag could be displayed in ways not intended to be divisive and hateful.
Judge Mojapelo criticised AfriForum’s “literal interpretation” of the law by trying to limit the understanding of expression of ideas to that conveyed by “words” alone. He said the reference to “words” should be understood as communication beyond verbal or written language alone, but that symbols, too, could be covered.
A flag could, therefore, be considered a form of speech.
“Speech must be widely interpreted to mean all forms of expression of ideas … the essence of speech is communication.
“Words in Section 10.1 [in the Equality Act] should not be interpreted literally … it should consider all hate speech, however, expressed.
“Nobody may advocate, propagate or communicate, hateful, harmful, words…” he said, saying it was important to realise that it was the propagation of hateful “ideas”, not “words” that should be limited. “It is about the meaning conveyed. Words are a medium [to convey meaning], but not the only one…
“Meaning can be conveyed by verbal and nonverbal communication.”
He said such a wider meaning was the only reasonable and sensible one.
Academic work, reportage in the public interest, and works of art could be viewed differently.
AfriForum leader Kallie Kriel, however, still rejected the ruling, and said that if being “deeply hurt” meant something qualified as hate speech towards you, then he felt that way about the communist flag. However, he wouldn’t want it to be banned, since he supposedly despised censorship.
Several mass killings occurred under 20th-century communist regimes. Death estimates are as high as 100 million. I am deeply hurt when I see a communist flag. Yet before today I never thought that it should be banned, because I despise #censorship. #ApartheidFlag pic.twitter.com/JkqhyARz7Z
— Kallie Kriel (@kalliekriel) August 21, 2019
(Edited by Charles Cilliers)