EUSEBIUS MCKAISER | Kallie, what harm do you suffer by not waving the old SA flag gratuitously?

Only white supremacists with nostalgia for apartheid desperately want to publicly wave the old South African flag. This is why anyone committed to anti-racism should welcome Friday’s unanimous Supreme Court judgment in Bloemfontein. The court held that the gratuitous public display of the old South African flag amounts to hate speech, unfair racial discrimination and harassment. 

The flag may only be displayed for sincere academic, artistic, scientific or journalistic purposes. 

The crux of the court’s reasoning is that the old South African flag, by its very design, is an explicit white supremacist symbol. It can only be interpreted as an expression of anti-black hatred, racist exclusion of black people from all facets of productive life, and an assertion of white supremacist ideology. The old South African flag is therefore intrinsically linked to coloniality and apartheid. It is necessarily divisive and runs contrary to every democratic value we had opted into in 1994. 

It does not promote nor does it express non-racialism and substantive equality. It does the exact opposite. It embodies the message that black South Africans are, not just lesser citizens in social stature than their white counterparts, but subhuman and do not have inherent dignity. 

The gratuitous display of the old South African flag reinscribes the crime against humanity called apartheid into the public life of our nascent democracy. For that reason, it can only be interpreted as a symbol of racism. There is no other meaning that can be ascribed to it. Such symbolic violence falls outside the bounds of constitutionally protected speech. The free speech defence doesn’t get AfriForum as far as they dream it would. 

There are very few rights in South Africa that can never be limited. That’s not to say rights are not important in general. They matter profoundly in their general formulation. Limitations should always be the exception rather than the rule. Limitations should always be justified by the standards developed over time, in our case law, based on express reference to the limitations clause within the Bill of Rights. 

In a liberal democracy like ours, more freedom rather than less should be agitated for, and the burden of proof should be particularly strongly felt by the person wishing to ask for permission that a general freedom be limited at all. Such a limitation must be justified in light of the values underpinning an open and democratic society, including human dignity, freedom and equality. It is only a right such as the right to dignity, for example, or that can never be limited, even during a state of emergency.

What does all this have to do with the old South African flag case? Well, unsurprisingly, AfriForum asserted that there are certain rights that are implicated — compromised, in effect — in this case. That is step one in constitutional analysis. Step two is to convince the court that you have not only correctly identified these rights that are implicated, but to then go on and explain the general importance of those rights, showing factually that they are infringed upon in the case at hand. Then we can get on, finally, to the important business of explaining why the standards for determining whether a limitation of the identified, implicated right is reasonable and justifiable, based on section 36(1) of the Bill of Rights. 

The lawyers for AfriForum did not do a very good job in support of the claim that white supremacists are entitled to hate speech. They were all over the place, hermeneutically, desperately hoping something will stick. For example, they claimed that the right to assembly and the right to dignity are implicated in this case, but they never made argument to that effect. They simply asserted that to be the case, which allowed the Supreme Court of Appeal to effectively say: “We don’t have to spend any adjudication time on assertions because they haven’t even explained. There is no connection drawn, neither on paper nor orally, between the right to dignity and AfriForum’s desire to publicly display the old South African flag gratuitously. The same goes for the right to assembly. They haven’t told us what the connection is between the general right to assembly and the old South African flag not being allowed to be displayed in public gratuitously.” That was shoddy lawyering from AfriForum.

How would anyone succeed in justifying the claim that the inherent self-worth of a person is trampled on if they cannot perform hate speech?

Not that they could have discharged such a burden. How would anyone succeed in justifying the claim that the inherent self-worth of a person is trampled on if they cannot perform hate speech? My dignity does not find expression in being able to trample on your dignity. Similarly, I can assemble with others, and even protest and convey political messaging, without having in my toolkit of potential flags, posters, T-shirts, music, and other paraphernalia, symbols of a crime against humanity. The right to assembly is not fatally undercut by barring me from trampling on another group’s dignity when I assemble with my mates in public. 

After that we get to the more obvious AfriForum argument that, as a matter of free speech, you should be allowed to express your political beliefs, and that if the display of the old South African flag is an instance of an expression of political thought, then it should not be restricted. This argument, in a liberal constitutional democracy like ours, is very weak. No-one has absolute free speech. Rightly so. We don’t live in a libertarian society. We live in a country in which it is recognised that not all speech is protected. 

This is why, for example, speech that incites violence is ring-fenced as speech that is not constitutionally protected. Our constitution’s founding parents recognised the importance of balancing a general right to free speech, with society’s legitimate moral interest in preventing mayhem, if anyone was to be able to say whatever they want at any time. In this particular instance, for all the reasons I discussed before, given what this flag symbolises, expresses and communicates, it is an example of hate speech and therefore it is speech that is not constitutionally protected. 

Ultimately, this judgment is also the court’s reminder that when it comes to conveying ideas — for purposes of applying the Equality Act and animating the Bill of Rights — we cannot restrict ourselves to words that are physically spoken. We have to ask ourselves what ideas are behind any of our spoken words. We need to recognise that speech can be communicated in symbols, and do not just emanate from our vocal cords. 

There must be consequences for harming other people. That can only happen, as a first step, if we are clear that the old South African flag harms victims and survivors of apartheid when it is gratuitously displayed. It is not good enough to feel nostalgic about the past and to live unreflectively. You cannot just express your views about the past, in any way you want to, without taking cognisance of the impact of your behaviour on others. If you want to be part of the moral community, which you necessarily are a part of simply in virtue of living in society, then you have a social and constitutional duty to think of how you relate to other people. That, in turn, requires you to think about how your words and actions impact society-at-large. 

That is not a reduction in your freedom. You are still free to give expression to your deepest values, desires principles, projects and your sense of who you are, and who you want to be. But your general freedom ends at the point at which exercising it harms other people. 

This judgment is rational. It distinguishes between gratuitous public displays that are intrinsically a celebration of white supremacy and legitimate displays serving purposes that are not an expression of hatred, discrimination and harassment, these being academic, scientific, artistic and journalistic ones. The judgment also does not extend to the private sphere. 

Kallie is free to wrap his apartheid self in the old South African flag in the privacy of his home, mampoer in hand, and making love to it. He just mustn’t test the scope of the court order by streaming his self-love live on the internet. Asseblief, swaer. 

If you are saddened, angry, or even furious, about this judgment, then I have two questions. Knowing how much hurt you will predictably cause large numbers of black people by triggering memory of a crime against humanity when you display this flag in the street, at a market or at the rugby stadium, do you really feel absolutely nothing about the violent impact of your symbol of hatred? And, if you don’t get to gratuitously display the old South African flag publicly, what harm and loss do you personally suffer?