'Constitution protects culture, not racism,' says advocate in old SA flag case
The pitch of advocate Tembeka Ngcukaitobi's voice changed when he uttered these words in the almost-packed Equality Court, sitting at the South Gauteng High Court, on Monday.
Ngcukaitobi was stating the case against the display of the apartheid flag. He was representing the Nelson Mandela Foundation (NMF) in the application it brought against Afrikaner rights group AfriForum.
The foundation wanted the court to rule in favour of effectively banning the display of the old South African flag, both publicly and privately.
AfriForum opposed the application, arguing that its banning would trample on the freedom of speech of a minority that liked the flag.
Ironically, the NMF was relying on more or less the same arguments AfriForum used when it obtained an order banning EFF leader Julius Malema from singing the song Dubul’ ibhunu.
The NMF decided to bring the application against AfriForum after some attendees of its Black Monday event hoisted the apartheid flag.
Ngcukaitobi told the court that the NMF believed the display of the flag was gratuitous, and constituted hate speech, harassment and unfair discrimination.
It was loved by those whites who yearned for the days when black people were oppressed, he said.
“The foundation is clear that those who want to display the flag are hankering towards a white-privileged past.”
He said the flag was degrading and dehumanising to black people “because it is a symbol of a system that was rightly described as a crime against humanity”.
“It's simply an assault to human dignity that is represented by the flag, and that's what AfriForum fails to grasp.
“AfriForum must tell us why white people in white events must continue displaying the apartheid flag,” Ngcukaitobi said, adding that whites could not cite the display of the flag as part of their culture because it wasn't a symbol of culture, but of racism.
“The constitution protects culture, yes, but not racism,” he said.
Wim Trengove SC, representing the SA Human Rights Commission, told the court that whites who waved the flag were expressing a humiliating statement against black people that they wished to live in an apartheid state again.
The old flag became an important symbol of the apartheid regime, he said.
“They express nostalgia for apartheid South Africa. They yearn for apartheid South Africa, a state of institutionalised racism. That is what they yearn for," Trengove said.
They were also making a statement against a democratic South Africa.
Mark Oppenheimer, for Afri- Forum, said the group did not intend to defend the flag, but rather to defend freedom of speech.
Oppenheimer said apartheid era symbols should not be removed from society merely because they were offensive.
Making an example of the Springbok symbol, he said it remained on the national team's jersey though it was previously a symbol of a racist team.
Nelson Mandela had worn the Springbok jersey in 1995 in "an incredible act of reconciliation", said Oppenheimer.
The matter was due to continue on Tuesday.