Old flag case: What happened to the free speech defenders? (III)

Marie-Louise Antoni on the strange response of our intelligentsia to the Equality Court judgment

On folk devils, flags and freedoms (III)

“Make no laws whatever concerning speech, and speech will be free; so soon as you make a declaration on paper that speech shall be free, you will have a hundred lawyers proving that ‘freedom does not mean abuse, nor liberty licence’; and they will define and define freedom out of existence.” – Voltaire de Cleyre

The year is 1983 and Mathews Tshabane Nitshwa has been sentenced to three years in prison. The 23-year-old factory worker is a first offender, has lost his job, and by now already spent four months behind bars. The Krugersdorp magistrate suspends eighteen months in an act of judicial benevolence.

Nitshwa’s crime was a mug engraved with ANC slogans. He told the court a co-worker had etched the markings and he hadn’t thought they would “lead to such seriousness”. The magistrate dismissed his claims. An ANC expert had testified the proper place for the dangerous domestic utensil was behind key in a cupboard – and the accused was guilty because co-workers had seen it. Journalist Allister Sparks reported this story about the metal cup “with faint, crude scratchings on it” for the The Washington Post. He said Nitshwa “sounded baffled” when he exclaimed, “I only used to drink tea out of it.”

The 1980s were not good years for freedom of expression. Men and women, black and white, from reggae singers to teachers, nuns and nurses, received jail terms for the audacious crimes of playing struggle songs in bars, owning tape recordings of political speeches, distributing pamphlets, or reading naughty books[1]. Handing out mourning ribbons or wearing ANC green, black and gold were similarly outlawed, and the organisation’s flag was banned until 1988.

Sometimes sentences could be overturned on appeal. At the time, organisations – like the South African Council of Churches who posted Nitshwa’s $2,500 bail – as well as the media, activists and lawyers, rallied around such infringements on civil liberties.

For a number of years after the transition, the spectre of this oppressive authoritarianism still hung like a pall, and freedom of expression was staunchly defended. Steadily, however, the historical import of this right disappeared down a memory hole, along with, it would seem, some of our principles.


A 2006 report written by Victoria Bronstein, associate professor at the University of Witwatersrand, describes the incremental slide[2]:

“Over the last decade the right to freedom of speech has been rigorously upheld by the higher courts but in lower courts and tribunals freedom of expression invariably loses out to dignity and equality. It seems that although there is symbolic deference to free speech, there is a growing quasi-legal tendency to erode its importance. Underlying the idea that free speech is not actually that important appears to be the belief that South Africa is still fragile and that individual South Africans cannot be relied upon to exercise any type of discernment.

Thirty-three hate speech cases had been heard by 2005 and this led to charges the equality courts were being “underutilised”. Bronstein however saw this as a “good sign”. South Africans were “getting on with things” without the courts.

She criticised the Equality Act of 2000’s “flabby” hate speech provisions that were “extremely constitutionally vulnerable”. The relevant section was “disturbingly wide” and in effect sought to “protect citizens form speech which may offend them”.

Bronstein was particularly concerned about attacks on political speech and warned South Africans to be “extremely cautious” about censoring it. She said, “The expression may be offensive and primitive but attempts to ban it really encroach upon the core of freedom of expression.”

She cited a South African Human Rights Commission (SAHRC) case involving the United Cricket Board and a fan who wanted to take an old flag to a match. Bronstein said:

“The case was decided on the basis that the rules printed on the ticket did not allow for old South African memorabilia. This seems to be a cop-out on the part of the Human Rights Commission. Waving the South African flag is a bona-fide form of political expression and it is not clear that the cricketing authorities can ban expression of this type in the very public forum of a cricket match. It should also be considered that the condition on the ticket is mere censorship which aims to create a certain convenient image of South Africa. In a genuinely confident and harmonious country it would be possible to shrug off the sentiment […].”

Until quite recently, then, the old flag was deemed a legitimate form of political expression and openly defended as such by lawyers and academics.

“The old South African flag was never banned, and the display of it is protected under the right to freedom of expression,” a 2009 News24 article reads. This was said to be the “reaction of Constitutional experts” after chief of police Bheki Cele instructed a Metrorail manager to get rid of a small flag in her office.

The journalist interviewed constitutional law experts Pierre de Vos and Marinus Wiechers. Both said displaying the old flag was protected under freedom of speech. “The old flag was never forbidden by any law and even if someone wanted to do so, it would be unconstitutional,” they said.

The article furthermore states that Wiechers, who helped draft the interim constitution, considered the order given without consulting the woman a “gross and insensitive abuse of power”[3]. He said only hate speech and defamation were not protected by the constitution.

De Vos then made the case that while workplaces could have their own internal staff rules, these nevertheless had to be properly set out. “In your personal capacity you are free to hoist the old South African flag in front of your own house,” he said.

“Many people would say it (the old flag) is an eyesore,” De Vos said. “But freedom of speech also means that we must accept points of view we find appalling.”


If anything the display of the old flag became rarer over the following several years. Indeed so rare that when the Nelson Mandela Foundation (NMF) approached the equality court to have “gratuitous displays” declared “hate speech”, it could not produce a respondent who had actually waved it about in public.

This was a “hate speech” case then without an agitator, a potential mob, or a threatened group or individual. The court however duly declared the “apartheid flag” hate speech, unfair discrimination and harassment on 21 August 2019.

Attitudes to freedom of expression had clearly evolved from the early 2000s and the outcome was widely celebrated by many leading lawyers, academics and journalists.





Later that day, AfriForum’s Ernst Roets also posted a graphic representation of the old flag but with the question: “Did I just commit hate speech?” The question was provocative, but also legitimate. Does tweeting a graphic image of the old flag, moreover while asking a legal question, amount to hate speech?

The tweet prompted a vitriolic response in the days that followed. Some of the comments on social media included:

“What a twat you are. Perhaps it is time for you to retire from public life to Orania. There is a nice caravan park where you can set up your laager.” – Tony Beamish, legal journalist.

“When you think hate speech is a droll joke. Must be nice. Is dickhead privilege a subset of white privilege, or the other way around? (I turned the flag into monochrome- which we should do with all retweets). – Chris Roper, journalist.

“If you were wondering about the perfect definition for ‘douche-faced wankpuffin’, look no further.” Richard Poplak, author and journalist.

“What an absolute idiot!!!” – Katy Katopodis, SANEF Deputy Chair.

“You are not a civil rights activist @ErnstRoets. What you do is not in the interest of right (sic) of all people but racial supremacy.” – Nomboniso Gasa, UCT adjunct professor in law responding to Roets after he announced the NMF explicitly sought jail time for posting the tweet.

“Fokken simpel mannetjie! Dink hy’s dapper, maar hy’s eintlik kinderagtig.” – Charles Leonard, journalist.

“Roets’s infantile tweet defiantly flying the apartheid flag is a glaring display of his and his organisation’s insistence on normalising apartheid.” ­– Gareth Newham, head of justice and violence prevention at the Institute for Security Studies.

“The thing about Ernst Roets is you know he’s a racist. The worst ones are those nice polite ones who are now “classical liberals” and free marketeers who imagine that all humanity’s evils began in 1994. They are out there, smiling, smug and self-righteous.” – Ismail Lagardien, columnist.

“How a racist asshole confirms he is a racist asshole – academically speaking, that is…” – Henning Melber, German-Namibian Africanist and political activist.

“Those who fly this flag are hankering for a return of the nightmare. No.” – Justine Limpitlaw, visiting adjunct professor and legal expert in media and communications law.

“You should be committed to an institution.” – Saul Musker, Rhodes scholar and writer.

“Someone must punch this guy in the throat!” – Siv Ngesi, comedian and TV personality.

“Posting the old SA flag is stupid and illiterate.”Stuart Theobald, BusinessLive columnist.

“’Infantile’, ‘tone deaf’ and ‘uncaring’ are about the politest words you can use to describe Ernst Roets and @Afrifroum.” – Herman Wasserman, UCT professor of media studies.

Roets was in addition declared “Mampara of the Week” by TimesLive, and Daniel Friedman, online editor of The Citizen, ran a story under the headline “Ernst Roets earns his PhD in being a complete and total doos”.

In yet a further evolution of attitudes to freedom of speech, many of these same leading intellectuals publicly either aided or abetted the NMF’s efforts to have Roets incarcerated for his Tweet.

During a recent interview with Helen Zille on her Tea with Helen podcast, Ferial Haffajee acknowledged the thorny problem of media engagement on social platforms. She said there was often a blurring of lines between the expression of personal opinions and reporting in the public interest.

Many journalists have enormous social media followings, partly due to their work on prominent or internationally relevant stories like the Oscar Pistorius trial. This reach is not insignificant. Haffajee, for example, has just under half a million followers. She said:

“Why is it that journalists can sometimes play along with those viral crowds? I do think that the era of social media has both been kind to journalism and it has been enormously destructive of it. In my opinion, as an older journalist, there’s far too much opinion going on and far too many journalists who are exercising those opinions, because it’s far, far easier to do it. You just need [a smartphone] in your hand and you become an actor. And often journalists are influencers in society. […] [T]hey, I think, enjoy the power of having people go along with [them].

She then said she prefaced her own tweets with the word “comment” to differentiate between those which were journalistic, and those that reflected her own views, as a way of integrating ethical media codes into her social media practice.

Haffajee responded to Roets’ tweet as follows: “What a poephol!” she said, before calling on NMF CEO Sello Hatang, who was tagged in the message, to “haul his ass back to court”.

Other postings made on the same day were marked as commentary, although laden with rhetoric and clearly misinformed about the nature of the case:


In the same vein, Karyn Maughan, who is a legal journalist with 340 000 followers, similarly tagged the relevant protagonists when she tweeted the following:

Two days later, Maughan reverted to her role as journalist and announced new developments as “BREAKING”:

When the court then however found in Roets’ favour, and decided not to throw the AfriForum leader in prison, disappointment was expressed all round. Maughan meaningfully informed her followers that the judge, Colin Lamont, had “also ruled in AfriForum’s favour in its complaint against Julius Malema for singing ‘Dubula Ibhunu’”:

This notion then spread on Twitter:




One of the flag case’s central issues, and of hate speech cases more broadly, is however the problem of a conjunctive or disjunctive interpretation of the Equality Act’s relevant provision. In other words, the need for a call to action or element of incitement for restricting speech to pass constitutional muster. While in certain cases an argument could be made that flag displays might be hate speech – perhaps when accompanied by inciteful utterances – not all would, meaning that hate speech claims for flag displays should require a case-by-case analysis (see Part II).

To illustrate, the following is the English translation of Dubul' ibhunu. The portions with a call to action have been redacted. While phrases like “the cowards are scared” and “these dogs are raping” may be hurtful and offensive, particularly directed at a minority group in the modern South African context, they do not contain an element of incitement. The rest, however, do[4][5].

The lack of support for the principle of freedom of expression when it comes to the old flag may be due to a number of reasons. One of the main ones is likely a failure to grasp the legal implications of the case. Those who do understand it – and some are extremely well-placed to do so – might further be silent based on an emotive or politically correct response. Others, however, might feel the case does not concern them, and it will have no impact on their lives, because the order refers to gratuitous displays.

Under the order, displays of the flag would be deemed protected if they amount to “bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest” (Emphasis added). At first glance, editors, journalists, academics, and artists would seemingly have nothing to fear.

In a News24 article (The old flag case and the unbearable whiteness of being AfriForum), assistant editor Pieter du Toit criticised Roets for his impertinent tweet and “depiction of the flag”. Du Toit himself had however also tweeted several “depiction(s) of the flag”.


Du Toit no doubt felt entirely within his rights, while deeming Roets was not, and this view was supported:



The relevant section nevertheless presents its own problems, and it is unclear what board will be deciding who is a real editor, journalist, writer, academic or artist – never mind what constitutes real art, or even whether museums will need to be government-approved. Where the rubber really hits the road, however, is when it comes to the phrase “fair and accurate reporting in the public interest”.

After the ruling, many news outlets published images or footage of the flag. eNCA, for example, broadcast an interview with the Freedom of Expression Institute (FXI). Despite the host’s persistent and manifest incredulity, the organisation’s executive director, Samkelo Mokhine, agreed with AfriForum’s position that the flag did not amount to hate speech. About halfway through the insert, flag after flag beamed onto screens.

The footage was clearly historical (taken during the apartheid era), along with one photograph of unknown origin, and another of a flag belonging to a coloured couple on the Cape Flats (se Part II). If the over-arching justification for excising the flag from society is to spare feelings of hurt and offense, it is not certain such outlets, and eNCA was by far not alone, have been acting in a fair and accurate manner in the public interest.

More importantly, what then of the myriad publications and broadcasters who disseminated fake images on and after Black Monday (see here and here)? Could their reporting be deemed fair and accurate and in the public interest? The matter is one of retrospectivity. If the order deemed all flag displays amounted to hate speech, harassment and unfair discrimination, in effect declaring these had always been so, and if society or the courts then further deem a tweet with an image would fall foul of the ruling, then there is likely a strong case to be made that eNCA journalist Nickolaus Bauer similarly committed hate speech on Black Monday.

Because the images were fake, and ultimately inflammatory, the postings were neither fair, accurate or in the public interest, particularly if one considers the outcome.

Nevertheless, in the following tweet, Bauer responds to Roets’ announcement the NMF was seeking to have him imprisoned:

When the court then later found in Roets’ favour, Bauer responded:


Intellectuals who support the flag ruling may feel this restriction to freedom of expression can be contained to the specific symbol alone. This belief is however misguided.

In October 2018, the eThekwini department of parks, recreation and culture toppled a sculptural mural at the Durban Botanic Gardens. The artwork featured both the old and new South African flags painted onto slatted slabs of black and white granite. Each flag came into focus depending on the position in which viewers stood, and the work was intended to represent the country’s transition[6]. IOL reported the sculpture had been in the garden for twenty years.

The head of the department ordered the felling after members of the public complained the work was “offensive and provocative”. The ANC Youth League demanded a public apology and its removal within 48 hours, or the organisation would “mobilise young people to take it down”. The quasi-Soviet era photograph of its demounting is perhaps the saddest indictment of the trajectory freedom of expression is on.

In any society, academics and the media contribute to the tone of national debate, and the positions they take seep into the social fabric. South Africa’s intellectual class nevertheless appears to be lending its full-throated support to the curtailment of this fundamental right.

In an editorial headlined Apartheid flag has no place in new SA, Business Day announced its support for the case and said the judgment was set out with “cogent legal clarity” and a “touch of Nelson Mandela’s idealism”.

The publication was therefore “in full support” of the ruling and agreed the flag should be “confined to public interest displays in museums, classrooms and art studios. Nothing more.”

Business Day then further accused Roets of being “not the first to feel nostalgic about apartheid SA”, and alleged he had posted his tweet because he knew taking him to court would require “effort and money”. From the outset, however, AfriForum was against the court action, and the documents show the organisation explicitly invited the NMF to discussions instead. It was the NMF that turned the offer down and the cost of the case likely runs into millions of rands – much of it taxpayer-funded.


In recent years, the progressive movement has steadily worked to create the impression that free speech is a “right-wing” concern, but this is simply not true[7].

In the 1980s, for example, Noam Chomsky got entangled in an intercontinental spat with (mainly) French intellectuals. The “Faurisson affair” was so scandaleuse that it prompted him to write two essays – and both are worth reading as a reminder of what a proper defence of free speech on the Left used to look like.

He said although ideas may be “offensive, even horrendous”, this did not mean people should be denied their civil rights. “[It] is precisely in the case of horrendous ideas that the right of free expression must be most vigorously defended; it is easy enough to defend free expression for those who require no such defence,” he said.

Chomsky noted the “fanaticism” and “deep totalitarian strains” among some intellectuals who were furthermore “rather selective” in defending free speech.

He then reiterated his position in an interview held in Leiden in 2011. He said:

“I don’t think the way to deal with neo-fascist groups is to try to shut them up forcefully. You should try to win the argument. It’s quite remarkable to see how it works. So take, say, holocaust denial. In a lot of Europe, holocaust denial is a crime. In France, there are laws against it, you can’t do it. In the United States, it’s not a crime. The consequence is that, in the United States, holocaust denial is unknown. There’s plenty of it. You know, there’s professors at universities who publish books denying the holocaust. Nobody pays any attention to them. […] In France, and a lot of Europe, it’s all over the front pages. A ton of publicity. […] some guy somewhere does some marginal thing, and everybody knows about it. It’s a way of giving publicity to holocaust denial. […] I just don’t think it’s even tactically the right way to deal with, say, neo-fascist groups. And it does give them an argument […]. They can claim freedom of speech, which is a value we all uphold. So we should uphold it and then win the argument”.

Journalist Glenn Greenwald seems to concur. In a 2017 Al Jazeera debate, he said, “There’s no such thing as banning ideas. It has never worked.” He believed that in a perfect world one could perhaps outlaw bigoted ideas. “The opposite is true, though,” he said. “When you try and do it, you turn them into martyrs. You actually make them stronger.”

This is not to say the handful of people who displayed the flag among tens of thousands of Black Monday protesters were “neo-fascist” white supremacists. The truth is we may never know, because none were asked. Not a single “flag-waver” was taken to court. The more likely explanation is that they were protesting crime, just like those of other races who have used the old flag in this manner (see Part II).


The proponents of broad hate speech laws argue that too much freedom of expression is dangerous. By limiting it, people would be free to conduct their lives unmolested – without having to endure obscene, offensive or hurtful views. This then leads to peacable and civilised societies, and hateful groups can be restrained.

The problem is that censorship tends to backfire. Not only does it make people suspicious of one another, but it also sometimes turns them into opportunists, while the state only consolidates its power.

Consider the example of Rwanda. After its own painful past, the country passed numerous laws to try and deter hate speech and “foster unity”. These laws, many of which were criminal in nature, dealt with “genocide ideology” and “sectarianism” (or “divisionism”).

Amnesty International published two reports – Safer to stay silent (2010) and Unsafe to speak out (2011) – that describe how these laws stifled freedom of expression[8][9].

“The vague wording of the laws is deliberately exploited to violate human rights,” one report reads. These were then used to “criminalise criticism of government and legitimate dissent.”

Human rights activists, journalists and opposition politicians started getting prosecuted under these laws and “denunciation became part of everyday life”. Citizens, even neighbours, used them to settle personal scores – “including to discredit teachers, for local political capital, to acquire land and in the context of personal disputes.”

Many prosecutions were politically motivated and proceedings often dealt mainly with the accused’s “alleged underlying philosophy”, instead of by proper legal analysis. As such the laws were having a “corrosive effect on mutual trust” and the organisation said it hoped amendments would be passed to only prohibit expression when it contained an element of incitement.

In the South African literature, some academics argue the Equality Act only aims to prohibit “low-value” expression, and moreover provides for “lenient” restorative measures. However, several fines of R150 000 have already been handed down. Claims can furthermore be referred for prosecution, and the Hate Crimes and Hate Speech Bill is still looming[10].


Many intellectuals like to harangue the public about class, privilege and power, but often appear not to believe ‘the people’ are good or capable enough to manage their own fundamental rights – as this case illustrates. Their ardent support for only allowing certain displays of the flag – in other words, by themselves – is not unlike the kind of free speech enjoyed by some in China.

In China, freedom of expression is a “privilege, not a right”. The authorities have reportedly softened towards accepting criticism, but only from “certain categories of people” – the “free speech elite”. A report from the United States Congressional Commission on China explains how Chinese society is profoundly hierarchical, despite the country’s compassionate socialist constitution.

The Chinese intellectual and professional elite comprises mainly senior government officials, with academics and journalists slotting in beneath and yet among their ranks. Academics and editors can therefore criticise the government to some extent, depending on their “ideological credentials”. The authorities will not however accept the same from private individuals, and there is “no freedom of political expression for ordinary citizens”. Exercising this freedom carries the risk of prosecution for subversion.

Controversial issues inevitably provoke a range of responses in any democratic society, and it is important for these to be expressed. What is disconcerting however is the clearly enthusiastic enjoyment of this freedom in the abandonment of its defence. It is especially concerning when one considers that for many opponents this right is the lifeblood of their professional existence. And despite the many strident opinions, the ensuing debate made it clear that few had any notion of the case, nor its implications, nor even of AfriForum’s role in it. The lack of freedom of expression under apartheid led to many profoundly unjust absurdities. It would be a shame to repeat the mistake.

Follow MLA on Twitter @MLAntoni


[1] Fiona McCleod (Compiled by) & Felicity Kaganas (Compiled by) (1985) Statement on Sentencing, South African Journal on Human Rights, 1:2, 106-110, DOI: 10.1080/02587203.1985.11827671

[2] Bronstein, Victoria. (2006). WHAT YOU CAN AND CAN'T SAY IN SOUTH AFRICA Freedom of Expression.

[3] Marinus Wiechers died in 2018. Chris Barron penned his obituary for Timeslive detailing his extensive legal achievements and commitment to human rights. See Timeslive, 16 September 2018. Marinus Wiechers: Far-sighted doyen of constitutional law - Helped draft SA and Namibia's founding principles, including that of judicial review   (Available online)

[4] See News24 article for the full English translation of Aw Dubul'ibhunu

[5] The image is purposely reminiscent of apartheid-era censorship. Writer and musician Koos Kombuis wrote a poem that in more recent times flummoxed British students who struggled to analyse its contents during an exam. The poem, Tipp Ex Sonate, consisted only of punctuation marks and was written as a protest against censorship.

[6] The artwork was created by Camille Cronje-Honiball who said the sculpture “took six months to plan, weld and paint. It took another week to assemble it at the Botanic Gardens”. IOL reported: “[S]he had been delighted to learn that, over the years, it was used to teach schoolchildren about the country’s history”. The artist was disappointed to find the meaning of the work had been misrepresented in such a manner since it was “meant to portray positive racial interaction”. She nevertheless said the old flag could possibly be painted over, in white for example, before the work was ultimately pulled down.

[7] Online magazine Quillette published an extensive article on the subject headlined Free Speech Leftists Still Exist.

[8] Amnesty International. (2010). Safer to stay silent: the chilling effect of Rwanda’s laws on ‘genocide ideology’ and ‘sectarianism’. (Available online:)

[9] Amnesty International. (2011) Unsafe to speak out: restrictions on freedom of expression in Rwanda. (Available online)

[10] ME Marais and JL Pretorius. (2015). “A contextual analysis of the hate speech provisions of the equality act”. Volume 18 No.4. ISSN 1727-3781.