How the Court of Appeals is wrong in the old flag ruling


By Lehumo Sejaphala

In a clear display of the universally rejected phenomenon of ‘judicial activism’, the Supreme Court of Appeal (HHA) recently delivered a judgment in which the court effectively banned the so-called “of the old apartheid flag”.

For someone without any practical legal training or academic background, the decision of the HHA in this case can be seen as a progressive step in the direction of building a “non-racial society” and by extension the advancement of the “nation building project”.

Like prof. However, Motala in his 2021 Sunday Times-article argued, it is the task of legal scholars, and by extension legal commentators, not only to look at the result/outcome of a court decision, but even more importantly to analyze the quality and depth of the reasoning – even if they disagree along with the result itself.

This case concerned an appeal from the Equality Court, which found that the display of the old South African national flag at the Black Monday protests organized by AfriForum constituted hate speech, unfair discrimination and harassment, as understood within the meaning of the Equality Act.

Mr. Sello Hatang of the Nelson Mandela Foundation testified before the HHA that the display of the old flag recalled painful memories from his childhood, while giving tourists a guided tour of Robben Island. He further testified that the old flag represents nothing other than the inhumane system of racial segregation and subjugation that ruled South Africa before 27 April 1994. And that the unsolicited display of the old flag, more than a generation after the abolition of apartheid, reminds him that some South African citizens still see him and black people as “other” and will deny them the opportunity to be human.

When the HHA reached its decision, the court seemed to accept this evidence without any difficulty – reasoning that “the message conveyed by the unsolicited public display of the old flag is clearly one based on race, apartheid and white superiority”.

According to the court, the old flag is “a horrible reminder of the anguish that millions of people suffered under apartheid South Africa before the advent of democracy in 1994” and it “causes offense and emotional distress” and “symbolises, clearly and painfully, the policy and manifestation of apartheid”.

The problem with this new ban on hurtful speech is that it is subjective in the sense that what hurts one person does not necessarily hurt another. Even more important – speech can be offensive, hurtful, uncomfortable and hurt our feelings, but that is not what the Constitution prohibits. The threshold established by the Constitution requires that the speech must be harmful for it to no longer enjoy protection – this is indeed a much higher standard than the “hurtful” standard that the HHA seems to have put forward in this decision.

The Court of Appeal’s decision is also not in accordance with the Constitutional Court’s precedent set in the Qwelane case, where the court interpreted the Equality Act to prohibit only harmful speech and not hurtful speech. As the court found, “the expression of unpopular or even offensive beliefs is not hate speech”, because “a healthy democracy requires a degree of tolerance towards expression or speech that shocks or offends”.

Referring to the decision by the Supreme Court of Canada in the Whatcott case, the court further explained:

“Restricting expression because it may offend or hurt feelings does not give sufficient weight to the role expression plays in individual self-fulfilment, the search for truth, and unfettered political discourse. Prohibiting any representation which ‘ridicules, belittles or otherwise affronts the dignity of’ protected groups could capture a great deal of expression which, while offensive to most people, falls short of exposing its target group to the extreme detestation and vilification which risks provoking discriminatory activities against that group. Rather than being tailored to meet the particular requirements, such a broad prohibition would impair freedom of expression in a significant way.” (Whatcott, paragraph 109)

How the HHA overlooked all these things in its decision is beyond one’s mind.

By way of example, I generally find the continuous annual broadcasting of the Sarafina drama on our television screens by the SABC to be very hurtful, morally shocking and uncomfortable. It is indeed the closest reminder of the morally corrupt, evil and murderous apartheid regime, probably more so than the display of the apartheid flag, even for those of us who were born into a constitutional democracy. It invokes feelings of hatred towards white people and undermines the lofty constitutional ideal of building a non-racial society and encouraging national cohesion.

And since we live in a society of counterfactuals (counterfactuals) and what-of-isms live, one can simply ask why it is not also banned?

To answer my own rhetorical question. The reason for the continuous annual showing of that historical drama seems to be that it does not shock and offend the feelings of black people, but plays on them (I say this fully aware of the opposition that this statement can provoke).

If history does nothing but bring about painful memories and emotional anguish, we must ban it in all its manifestations. This could include banning even the Sarafina drama and similar television dramas that evoke painful memories and emotional anguish.

In fact, if the HHA’s decision is anything to go by, strong mention can also be made of a ban on the ANC flag. After all, the flag symbolizes corruption – it causes emotional (and even real) distress and pain for many of us.

  • Lehumo Sejaphala is a legal scholar and collaborator of the Free Market Foundation.