In the first of a series of articles Marie-Louise Antoni writes on the background to the old SA flag court case
Goebbels was in favour of free speech for views he liked. So was Stalin. If you’re really in favour of free speech, then you’re in favour of speech for precisely views you despise. Otherwise, you’re not in favour of free speech. – Noam Chomsky
Making a case for freedom of expression when it comes to the old national flag is no easy sell. For many or most South Africans even raising the subject is likely to provoke an angry or pained response. Others might feel ambivalence, or perhaps shame.
Thousands upon thousands of words, freely written and spoken, have confounded defending a right with shoring up an authoritarian regime. This muddling of free speech advocacy with a supposed hankering after a racist past has meant that, for some citizens, excising a symbol has started to seem like a sound proposition – a trifling concession, even, for the greater good of social cohesion.
But civil liberties are fragile. History has shown they tend to erode slowly, even imperceptibly, and then quite suddenly. Those who opposed the Nelson Mandela Foundation’s (NMF) hate speech case did not do so out of any desire to hoist an old flag. Instead, they fought a lonely battle – one marked by the craven absence of organisations who had the power to act – against the widening dragnet of prohibited expression.
The application drew heavy state support. The South African Human Rights Commission (SAHRC), as well as the minister and department of justice, all backed the action. Johannesburg Pride, an organisation championing an important cause that has benefited greatly from the advancement of civil freedoms, joined them in their efforts. These protagonists received enthusiastic media endorsement, while AfriForum stepped up as a reluctant respondent and the Federasie van Afrikaanse Kultuurvereniginge (FAK) provided historical and cultural context.
The matter was heard in April this year and, on the morning of 21 August, Judge Phineas Mojapelo handed down judgment. He ruled not only that alleged displays of the old flag at the Black Monday protests, on 30 October 2017, amounted to hate speech, harassment and unfair discrimination, but also that any “gratuitous” display – and here the order does not appear to make a distinction between public and private displays – amounts to same.
The case posed a number of important questions, mainly concerning the grounds for the proceedings (Part I); the interpretation of both the meaning of the flag and the law (Part II); and what the ruling might mean for the pursuit of a free society (Part III).
Farm murders have been an issue in South Africa since the 1980s, when the liberation movements started directly targeting farmers for armed attack, and inciting their supporters to do the same. The epidemic really took off in early 1990, with the then South African Agricultural Union (now Agri SA) documenting the incidents of this type of crime from 1991 onwards. According to the SAPS the number of recorded farm murders reached their peak under the presidency of Nelson Mandela, when 153 people were murdered in farm attacks in 1997/1998, with 148 people killed the following year.
Over the following two decades, the number of farm murders gradually declined. However, politicians, such as the EFF leader Julius Malema – a protégé of the late ANC Youth League leader Peter Mokaba, who had publicly agitated for the murder of farmers in the early 1990s – continue to play word games of racial incitement. On 6 November 2016, he told a crowd outside the Newcastle Magistrates Court:
“We, the rightful owners, our peace was disturbed by white man’s arrival here. They committed a black genocide. They killed our people during land dispossession. Today, we are told don’t disturb them, even when they disturbed our peace. They found peaceful Africans here. They killed them! They slaughtered them, like animals! We are not calling for the slaughtering of white people, at least for now.
He added, for good measure:
“Victory will only be victory if the land is restored in the hands of rightful owners. And rightful owners unashamedly is black people. No white person is a rightful owner of the land here in South Africa and the whole of the African continent. This is our continent. It belongs to us.”
On 26 October 2017, it was reported that the SAPS had recorded 74 farm killings in 2016/17, a significant increase from the 58 counted the year before. Early that same day, the beloved Klapmuts farmer, Joubert Conradie, was shot dead by intruders. Chris Loubser’s anguished plea on social media in response to his friend’s brutal death led to a protest being organised in the Western Cape under the slogan “Genoeg is genoeg”.
Early that morning, News24 published a report quoting the organisers of the Klapmuts/Cape Town protest as saying no apartheid memorabilia would be welcomed at the gathering: "We are against everything that is a part of the old South Africa. We won't be singing Die Stem, we won't be carrying the apartheid flag and we won't allow any hate speech."This protest involved a convoy of an estimated ten thousand people, which departed from Klapmuts at around 8am that morning, eventually arriving at Cape Town stadium from around 1pm onwards.
A number of other protests were held in support of this cause elsewhere in the country. Through the course of the day, images of the old flag allegedly being displayed by protesters were wildly circulated on social media, set against the new flag being burnt. This provoked widespread outrage. Early that evening the eNCA journalist Nickolaus Bauer summarised the prevailing sentiment with the following tweet:
In a statement the ANC condemned “the despicable and racist behaviour by some who took part in the so-called #BlackMonday campaign by groupings representing the farming community today”. The EFF meanwhile denounced the protests, claiming they “proudly promoted anti-back racism by a tiny white minority which seeks to gain public sympathy using apartheid symbols like the apartheid government flag.” On Twitter the DA said the “use of the apartheid flag at #BlackMondayprotests is disgusting. There is no place for that flag in South Africa #ApartheidFlagMustFall”. On the 1st of November, Cabinet also issued a statement condemning “the blocking of public roads, displaying of symbols of past oppression and destruction of national symbols which are a reflection of our hard-earned democracy.”
It was soon pointed out to Bauer however that the two images in his Tweet, which had been widely circulated through the day, were old pictures.
On the 3rd of November, Bauer apologised on Twitter for his “severe error” in using “old, rather than contemporaneous photographs. I acknowledge now, and should have done so then, that even if the photographs were from the day of the protest, they did not represent the majority of those who had gone on those protests.”
Despite a number of the most emotive images underpinning the Black-Monday-apartheid-flag narrative having already been debunked, the Nelson Mandela Foundation issued a press statement on the matter on the 5th of November 2017. This stated that the Foundation had been “deeply concerned by much of what had unfolded”:
“All expressions of ‘us’ and ‘them’ in the contexts of a country like South Africa in 2017 are worrisome. When they come with a belligerence manifested in burning of the national flag, displaying of the old South African flag, and disrespecting of histories, then they become deeply problematic.”
The organisation furthermore stated that displaying the old flag “represent[ed] support” for a “crime against humanity”; the most likely victims of murder are “poor, young and black”; and the fact that the police had failed to act violently against the blocking of highways by the protestors was proof that “whiteness has power. Structurally, black lives matter less.” It concluded by posing a number of rhetorical questions, including:
“Is it time to criminalize displays of the old flag? Is there a connection between the hubris of the Black Monday protests and the deep well of rage which underlies individual cases of murder on white-owned farms?”
At this point in the story, the stage had clearly been set, but the show had not yet started. The NMF’s CEO, Sello Hatang, then took part in two debates with AfriForum’s CEO, Kallie Kriel.
The first, a television interview for SABC2 Morning Live, took place on 8 November. The show’s theme was “Should the old South African flag be banned?”
Hatang said the NMF could not understand why some people might disavow the flag, but still believe people could own one. “We believe that it is about time that we then say, ‘Maybe it should be banned’.”
Kriel pointed out the problem of fake news, but also emphasised that AfriForum actively tells its supporters not to bring old flags to their meetings.
He then said, “I believe it should not be unlawful, but it’s unwise to do so. And if we allow the banning of the flag, even people that dislike the previous flag extremely, they must remember they [are] opening the door for government to now start banning things that they dislike, [which] they might like, so it is a dangerous route to go”.
Kriel added that a hundred million people died under communist regimes. “Should we ban communist symbols? I say no. It’s part of history, and you cannot ban history,” he said.
Hatang however replied that Kriel’s views on communism were his “personal opinion”, while apartheid had been declared a crime against humanity by the United Nations. He then claimed the Institute for Justice and Reconciliation (IJR) had done a survey that found that “over 50% of white South Africans have forgotten that apartheid was a crime against humanity”.
“It’s that kind of a thing that we should be fighting against. That forgetting,” Hatang said. This seems to have been a mangled reference to an old 2013 survey finding by the IJR, widely reported in 2014, that 53% of white respondents agreed with the statement that apartheid was a crime against humanity. By the time Hatang made his remarks this had been superseded by more recent survey findings. The IJR’s 2017 survey found that 68% of white respondents were in agreement with this statement, along with 79% of black African respondents, 71% of coloured respondents, and 87% of Indian/Asian respondents.
Hatang furthermore took issue with the private ownership of flags. “You’re then taking racism and racist behaviours and attitudes into a private space, which should also not be allowed,” he said. “Because we always wonder: how come that the young people – young white Afrikaners – would harbour such racist tendencies. It’s what they find at home!”
He also argued that Black Monday should have been about murder in general, and not just a “racialized” or “sectoral issue”.
“To say there’s a white genocide for example,” he said. “We know that’s not true. And we shouldn’t be allowing such stories to then be pushed forward.”
In the background, during the debate, SABC2 broadcast a number of fake, historical and stock images of the flag.
The second, a radio interview for SAFM Weekend AM Live, took place three days later, on 11 November.
In this interview, Hatang again confirmed the NMF had started asking itself whether maybe it was time to “ban the flag”. The host pointed out the flag was part of the country’s heritage for some South Africans, and that it “shouldn’t just be banned completely”.
Hatang however said, “For something that was declared by the UN as a crime against humanity, it must be treated as such.” He again falsely claimed that “over 50% of our white South Africans” had forgotten apartheid was a crime against humanity. He said it was this “forgetfulness” that “continues to ensure that the levels of inequality – the racial inequality that we have in our country – continues to oppress the majority in our country”.
Kriel then brought up the issue of false reporting and said Hatang was not acknowledging the problem. “If it was something that was widespread, why then were fake photographs used?” he said.
He added, “If we’re going to start allowing government to ban everything that is disliked, then we are treading on very dangerous ground, because you are going to create the kind of police state where government legislates what people should think and what they should do.”
Hatang eventually conceded it was “possible that [the flag] was not waved [at] the Black Monday event”, but that the protests were nevertheless “skewed towards ensuring that you fight murder of a particular sector”.
He said the “most vulnerable to dying” were young black adults in townships. “Shouldn’t we be talking about murder? Not just about white farmers’ murder,” he asked.
He again brought up the private ownership of flags. “This is when you take what is wrong and you move it to the private home, and then we are surprised when those who are born in democracy can call black people kaffirs,” he said.
Hatang then announced the NMF would be “convening some dialogues” about whether the old flag “should be banned”. He added the organisation had been “approached by many law firms” who were ready to “take action against those [who] are promoting for the flag to even be held at home, because private offence is just as bad as public offence.”
At this point in the interview, Kriel chuckled – with the host joining in a few seconds later – and said, “No, I think now we [are] going into a police state. That’s exactly what communism was: trying to legislate people’s views.”
He added that AfriForum would be willing to defend such a case because banning “any symbol would be against the country’s constitution, and we are ready to protect the constitution against those that want to take on free speech, and want to turn this country into a police state”.
The court documents list these two interviews as the basis for the dispute of law that arose between the parties. In other words, it was not because AfriForum waved flags at the protests (it did not), but rather because there was a disagreement about whether displays of the flag were constitutionally protected.
The NMF in its papers acknowledged that “some social media users” had published images that were not of the protests, but that it was “disingenuous and disrespectful” of AfriForum to claim they were all fake. It was moreover “callous” to “downplay the seriousness” of displaying the old flag – and this by describing the act as “unwise”, rather than an “unlawful celebration of a crime against humanity”. Hatang also complained that Kriel had “laughed at” him.
The NMF argued the old flag was “undeniably a part of our history, but that is where it belongs: in documentaries, museums and cathartic creative works”. And while the equality act provides for remedies – such as “apologies, community service, and sensitivity training” – the protests and dispute with AfriForum “revealed the need” for a declaratory order.
On the day of the protests, according to the court papers, Sello Hatang was taking visitors on a guided tour of Robben Island. This was when he received “reports of the displays” of the old flag, which brought up distressing memories of growing up under apartheid.Flag displays had been “widely reported” and “many” social media accounts confirmed the same. The NMF also received “many media enquiries” in the days that followed, prompting it to spend some time thinking about the matter.
“What emerged was a deep discomfort,” Hatang said. This disquietude stemmed not only from the alleged “overt displays” of the flag, but also the “unspoken subtext” of the protests. According to the NMF, these undertones included, among others, that:
“Farm murders” are crimes committed against white people by black people, who are racially motivated or mobilised;
“Food security” requires that special priority be given to the safety and wellbeing of (white) farm owners, managers and their families, but not necessarily the safety and wellbeing of (black) farmworkers and their families, who are apparently deemed dispensable or replaceable.
The organisation claimed the protests had “clearly fostered an enabling environment” for these kinds of “attitudes” to “flourish”: people who held such views were not only “comfortable” bringing the old flag, but also “brandishing” it – and this apparently without “any fear of ostracism by other demonstrators”.
These claims are worth exploring. The first point to make is that Hatang did not attend the protests. Rather, he was upset by what he’d read or heard being broadcast.
In November 2017, on the same day the NMF released its statement, Politicsweb published an extensive report on the manner in which the press mishandled the issue. It pointed out that apart from disseminating fake, historical or stock images, the repeated claim of the burning flag was a complete fabrication. Journalists present on the day corroborated these findings. Earlier this year, Groundup reported that two of its journalists “did not witness conspicuous displays of the old flag”. Freelance journalist Kathy Malherbe also wrote a guest column (Black Monday: What I saw and heard) for News24.
“I saw humility in the face of deep, deep grief,” she wrote. “A wave of palpable forgiveness. People of all colours uniting in a spiritual war against violence. Collectively calling for peace and unity.”
Malherbe’s account confirms the organisers had made it clear the protests were not solely about violence on farms. They emphasised the crime statistics in general; said that no apartheid memorabilia would be condoned or accepted; that farmworkers were included; and, mostly, the values expressed were one’s of unity, love, peace, hope, reconciliation, and forgiveness.
The problem of false reporting made its way into the 2017 State of the Newsroom report. It was a bumper year for fake news, as evidenced by the “Fakers and Makers” theme of that edition. The relevant section reads:
“Finally, in late October the media was again caught with its pants down when several photos of white people waving the old South African flag were circulated, purportedly representing participants in the #BlackMonday protests against farm murders. A number of these photographs were later shown to be from past protests – with one even taken in London – but were never-the-less published on news sites and circulated on journalist Twitter feeds as an unfolding record of the #BlackMonday marches. At least one journalist later apologised for his oversight.”
Despite all this, the NMF submitted copies of a number of news reports to bolster its application. These included journalistic gems from the now defunct Huffington Post SA, with the headline Black Monday Marred by Some Protesters Waving Old SA Flags – And Twitter Goes Ballistic. The article showcases a pastiche of screenshots taken from social media accounts. An editorial note claims the story had been updated to remove “incorrect images (not taken on ‘Black Monday’)”. However, stock, historical and fake images still remained, including the one taken in London.
An old flag photograph used in an eNCA article, also attached by the NMF, was completely unrelated to the protests and actually belonged to a coloured couple living on the Cape Flats. The outlet subsequently changed its online caption, but not before the NMF had printed hard copies to submit in its application.
Another article contained in the papers is a News24 report quoting Communications Minister Mmamoloko Kubayi-Ngubane as saying, in a cabinet briefing, that "There were images that circulated on social media that reflected a burning of a South African flag".
And so while the NMF accused AfriForum of “downplaying” displays of the flag, the reality was that false reporting had made it seem like waves of unrepentant racists had spilled out on the streets to “brandish” old flags like tiki-torches, and this without fear of being ostracised. The Foundation similarly claimed the demonstrations had excluded the plight of farmworkers, and that if the protesters had been black, the police would’ve reacted differently.
However, these accusations are simply not reasonable. Hundreds if not thousands of images appear online, mainly on Facebook community groups from across the country, but also on some news sites. There is also footage – including aerial drone footage – of the protests.
These prove there was indeed a veritable outpouring: calm processions of people dressed in black made their way to assembly points. Many carried small crosses; some waved the new flag. Farmworkers joined in, and farmers made clear statements about workers similarly being attacked. Multiple clips show people kneeling in prayer before coloured pastors.
Timeslive reported its photographer saw “one person” wearing a shirt with an old flag in Cape Town. The wearer was reportedly “chastised by other protesters” and “told to turn his shirt inside out”, proving the claim that flag-bearers would not be ostracised was false.
Protest venues were in addition left clean and tidy after the events. Some roads were blocked and there were indeed delays, as well as an accident in Mpumalanga, but police response could hardly be said to have differed compared to the weekly, if not daily, often violent popular protests it has to deal with.
In a protest that involved tens of thousands of people – and which was the subject of intense media and social media scrutiny – there is a visual record of a grand total of four actual cases of the old flag being worn or displayed. At dawn a photograph was taken in the parking lot of a mall in the Pretoria area of an old man posing with one on the back of his pickup truck (A). Two images, taken a couple of hours later, show a man with a flag on the back of his t-shirt (B), as well as a flag hanging over the side railings of a bridge (C). Both these last two were taken at the same bridge over the R59 in Reden, near Vereeniging, which had been blocked by protestors. Finally, News24 interviewed a female biker who was wearing a leather waistcoat with a patch of the old flag embroidered onto it (D). This was then posted mid-morning.
In each of these four cases the person who picked upon, and then sent these images viral, was the EFF supporter and prominent social media influencer, Tumi Sole.
His purpose was to attack and discredit the protests as a whole. The effect, as is evidenced by the responses to his Tweets, was to provoke virulent and often murderous racial hatred. Since no further images emerged of the protesters displaying the old flag, social media users simply started mixing in old images from the past (E, F, G, H).
The only verified images the NMF itself was able to produce in its complaint were the flag hanging over the R59; and the video of the biker.Advocate Tembeka Ngcukaitobi, who represented the NMF, excoriated AfriForum in court for this latter “display”. He claimed farm murders were of concern, but that the issue was “very manipulative and exploitative”, and he blamed the organisation for not asking the woman why she had “spoiled” their event. He was outraged she could claim she felt safer in the old South Africa.
The problem, however, is that the woman in question had attended the Klapmuts/Cape Town protest, which was not organised by AfriForum. James de Villiers interviewed her for News24, and posted this clip on Twitter just before noon that day. On her black leather vest one can see a patch of the old flag, roughly the size of a centenary postage stamp. After a few opening questions, De Villiers asked her why she was wearing it, given the organisers had made it very clear that apartheid memorabilia and flags would not be allowed at the gathering. She responded that it was “on my biker’s jacket, so it wasn’t meant for today, but I ain’t going to pull it off, just to attend a meeting.”
He then asked her why she still had it. “Under this flag we were protected,” she said. “This isn’t a black and white issue. It’s about the right to live. And the right to protect yourself.” She then added: “I’m proud of this flag, I’m proud of my new flag.”
That evening, at just after 7pm, an article by De Villiers appeared on News24under the headline Cape Town organiser says there were no apartheid flags at #BlackMonday. This summarised the day’s events and reported to readers that this woman had “raised the ire of Twitter users”. Below an embedded video of her remarks, it misquoted her as saying, "I am proud of this flag, I am not proud of my new flag." (Emphasis added). The article did however add that Van Rensburg was “one of the few people seen at the protest with apartheid memorabilia”.
The day after the protests, Timeslive interviewed Chris Loubser, the man whose emotional plea had set off the protests. The journalist claimed “social media posts from other parts of the country showed some people waving apartheid-era flags and wearing shirts depicting a racial agenda”. Loubser “decried” these displays. Another organiser similarly denounced flag displays and said she was “angered” by what she had seen “on social media”.
The primary symbols worn and carried by protestors at Black Monday were thus black clothes and white crosses. In a protest of tens of thousands of people, there were no more than a handful of actual cases of people wearing clothing with images of, or displaying, the old flag. Any potential displays were furthermore actively discouraged by the organisers of the Klapmuts/Cape Town protest, by AfriForum in the north of the country, and by other protestors.
Given the nature of the protest, this was actually compelling evidence of how rare such displays had become, and how they are frowned upon within Afrikaner and broader white society. South Africans en masse had long ago not only rejected the old flag, but also embraced the new one.
In 2013, Gareth van Onselen looked into South Africa’s racist “lunatic fringe” by peeping into the internet’s darkest corners, where questionable displays of the old flag sometimes lurk. He argued the “power of overt racism [had] been destroyed” and described such people as “marginal” and “operating on the very outskirts” of society. “Every society has them,” he wrote. “South Africa is by no means unique in that way.”
In 2015, Gwede Mantashe commented on news of mass shooter Dylann Roof in an article headlined Old South African flag dead, but not buried. Mantashe however acknowledged the old flag was “not something that is socially widespread here”.
Society effectively dealt with the problem in its own way, without state interference, and mainly by public disapprobation and mockery. The few who pitched up at sporting events with an old flag would receive a small write-up in the news and earn the title of “plonker”.
Earlier condemnations were therefore marked by a certain levity – or as Oscar Wilde said, “I may not agree with you, but I will defend to the death your right to make an ass of yourself”. This is not to imply that people were dismissive. Rather, there was a certain irreverent spirit. Many South Africans were still filled with that “thing with feathers”, and understood not only the magnitude of the miracle that had befallen them, but also that a real chance at freedom was within grasp.
But politics have become a lot more grave since then. The ascent of the grievance era has blasted a veritable poison rocket into our society, offering a handy tool to be wielded by assorted racial nationalists to once again rob the public of their civil liberties.
In the initial response to the Black Monday protests, the old flag was cynically weaponised to demean and belittle the protestors and their concerns, and to further whip up racial hatred. Mixed up with the NMF’s objection to the alleged display of the flag, too, is a moral objection to the protestors’ cause – their desperate appeal for the ANC government to finally do something to halt the decades-long epidemic of farm attacks and farm murders in South Africa.
Stanley Cohen’s 1972 book, Folk Devils and Moral Panics, is instructive for understanding our current malaise. “Societies appear to be subject, every now and then, to periods of moral panic,” the professor of sociology wrote. “A condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests”. These events or groups are then portrayed “in a stylized and stereotypical fashion by the mass media”, with the setting up of “moral barricades manned by editors, bishops, politicians and other right-thinking people”.
Outrage is then directed at these “folk devils”, who serve the constructed societal function of being “visible reminders of what we should not be”. In this case, a minority group protesting against violence, among which a submicroscopic handful displayed old apartheid insignia.
These panics are characterised by disproportionality and distortion. The media and others, like today’s social media influencers, exaggerate “the number or strength of the cases”, as well as “the damage caused, moral offensiveness, [or] potential risk if ignored”.
“Some trivial and harmless forms of rule-breaking can indeed be ‘blown out of all proportion’,” noted Cohen. By contrast, “some very serious, significant and horrible events – even genocide, political massacres, atrocities and massive suffering – can be denied, ignored or played down.”
Over the past few years, dishonest reporting on problems of racism, including the current example of the old flag, has meant a media-inspired panic has swept across the body politic, spawning a small army of moral entrepreneurs. Cohen however points out that such crises of indignation can often lead to changes in national policy, or even the enactment of legislation.
In this instance, the panic culminated in a legal precedent that poses a significant threat to fundamental rights - the threshold for finding hate speech has been substantially lowered. This will be the subject of Part II in this series.