Cape Town — The old South African flag which was outlawed by a court judgement this week was adopted two decades before the formal policy of apartheid was enforced. But the elements which go to make it up are embedded in centuries of colonial and settler oppression.
In a landmark case heard in Johannesburg, Judge Phineas Mojapelo, the deputy judge president of the region's High Court, found that the “gratuitous” display of the flag fell within the category of hate speech as defined in the country's Equality Act. The definition covers action which demonstrates a clear intention to “be hurtful”, to “be harmful or to incite harm” and to "promote or propagate hatred".
But the judge said he was not banning the use of the flag. It could still be used if displayed for purposes including “artistic creativity, academic and scientific inquiry [and] fair and accurate reporting in the public interest...”
The flag was adopted in 1928 to replace the British Union Jack as part of efforts to unite white South Africans of British and Afrikaner descent after they combined to form the Union of South Africa as part of the British empire in 1910. Before union, two independent Afrikaner republics had fought – and lost – wars of independence against London and its two British colonies. Black South Africans were excluded from the 1910 settlement.
The horizontal orange, white and blue stripes of the 1928 flag are those of the “Prince's Flag,” based on the flag of the Dutch prince, William of Orange-Nassau – reflecting the interests of the first European settlers in South Africa in the 17th century. (The flags of New York, N.Y. and Albany, New York – colonised by the Dutch earlier in the 17th century – are currently also based on the Prince's Flag.)
Superimposed over the centre of the Prince's flag in the 1928 flag are the Union Jack, the flag of the Orange Free State and that of the South African Republic, the latter two incorporating the Dutch national colours of red, white and blue.
South Africa joined Britain to fight Nazi Germany under the flag in World War II, and the Union Jack survived efforts to remove it after Afrikaner nationalists adopted apartheid and pulled out of the British Commonwealth and declared a republic in 1960.
The 1928 flag was replaced on the advent of democracy in 1994 by the current South African flag, which incorporates the black, green and yellow of the liberation movements as well as the colours of its Dutch and British predecessors.
The controversy which led to this week's court decision began in 2017, when some whites taking part in nationwide protests against the killing of farmers displayed the 1928 flag.
Sello Hatang, the chief executive officer of the Nelson Mandela Foundation – which brought the court case – told Judge Mojapelo that the display of the flag reminded him of “occasions... in my childhood... when I heard white children singing 'Daar kom a bobbejaan' (There comes a baboon) as my grandmother walked past them on her way to work... (and) she was powerless to do anything about her trauma and anguish.”
Hatang added: "The Old Flag represents nothing other than the inhumane system of racial segregation and subjugation that governed South Africa before 27 April 1994 (which manifested in various forms since the 1600s and became formally known as apartheid from 1948). It was that system, under that Old Flag, which licensed those white children who still haunt my memories to dehumanise me, my brother and my grandmother in the way that they did.”
Judge Mojapelo said in his findings that the display of the 1928 flag is "extremely hurtful and dehumanising to those who suffered under apartheid.
"The message generally communicated by displays of the Old Flag indicates a symbol of support for and promotion of the racist ideologies espoused under the apartheid regime. This communication, in turn, promotes hatred and harm towards those who suffered, and continue to suffer..."
He concluded: “Those who display the Old Flag choose deliberately not only to display the apartheid discriminatory, divisive and oppressive flag; they also consciously and deliberately choose not to display the new democratic all-uniting non-racial flag. They choose an oppression symbol over a liberation symbol...”
The group against which the Mandela Foundation brought the court case, AfriForum, proclaims on its website that it treasures Afrikaner culture and heritage, “taking into consideration mutual respect and recognition between communities.” But in response to Judge Mojapelo's findings, an AfriForum official defiantly tweeted the 1928 flag, writing: 'Did I just commit hate speech?' He now faces an urgent application from the foundation to declare him in contempt of court.