South African court bars display of apartheid-era flag as racist hate speech

A Johannesburg court on Wednesday barred the unjustified display of South Africa’s apartheid-era national flag in a landmark ruling that Afrikaans groups said they would oppose. 

Judge Phineas Mojapelo said in Johannesburg that flying the old blue, white and orange flag for reasons other than educational, artistic, or other purposes in the national interest amounted to "hate speech" and "harassment".

"It demonstrates a clear intention to be hurtful, to be harmful and incite harm and it in fact promotes and propagates hatred against black people… it constitutes hate speech," he said before making the ruling. 

Those who breach it may be punished with a fine or community service. 

The decision came after the Nelson Mandela Foundation Trust petitioned the court over the public display of the flag at a protest against the murders of white farmers in 2017.

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Sello Hatang, CEO of the Trust, welcomed the ruling as a "building block" for reconciliation. The organisation said it "affirms our rights not to suffer hate speech, our rights to dignity and to a meaningful freedom of speech." 

AfriForum, a largely Afrikaans lobby group that organised the 2017 protest where the flag was displayed and which opposed the Trust’s petition, said it would study the text of the ruling before deciding on further action. 

Ernst Roets, a senior executive for the group, said: “Our concern with this case from the outset has been that a judgment in favour of the Nelson Mandela Foundation would not serve the intended purpose, as state regulation with regard to freedom of speech in most instances results in bigger problems.”

The old flag of South Africa was flown from 1928 until it was replaced by the present design before the first post-Apartheid election in 1994. 

It consisted of three horizontal blue, white and orange stripes with three small flags of Great Britain and Northern Ireland, the Orange Free State, and the Transvaal in the middle. 

Although it was adopted two decades before the National Party’s victory in the 1948 election that ushered in Apartheid, critics say it is just as indelibly linked to white nationalism as the Confederacy or the Nazi swastika, and should be treated as such. 

Afrikaans groups say the flag is a part of their national heritage. It is sometimes displayed by Right-wing groups and at rugby matches.