A ruling that would limit the display of the apartheid flag to private spaces would be tantamount to allowing parents to raise their children to be racist.
Advocate Tembeka Ngcukaitobi SC made this submission yesterday at the Supreme Court of Appeal (SCA) to drive home the point that the apartheid flag has no place in either private or public spaces.
He argued on behalf of the Nelson Mandela Foundation, which together with the South African Human Rights Commission squared off against lobby group AfriForum.
AfriForum sought to overturn a 2019 Equality Court ruling that declared that the gratuitous display of the apartheid flag constituted hate speech, unfair discrimination and harassment.
Judge Phineas Mojapelo ruled at the Equality Court that the apartheid flag could not be displayed in either private or public spaces, except for “genuine journalistic, artistic or academic endeavour”.
The matter came before Judge Mojapelo after the flag was displayed at a protest march organised by AfriForum in 2017.
AfriForum sought to convince the SCA that Judge Mojapelo should have found that the display of the flag enjoyed protection as free speech under the Constitution.
Advocate Mark Oppenheimer, arguing for AfriForum, told the SCA the right to privacy further protected people who may have the flag displayed at their homes.
“You can imagine a situation where your private display becomes public in a sense that someone comes into your house and exposes it,” said Oppenheimer.
“That person can say, ‘Well, it’s a private display. I have a right to privacy, I have a right to keep it at my house.’
“The idea is that if we determine that all private displays amount to hate speech that you could imagine a situation where someone says, ‘I’ve heard so and so has a flag in their house, in their cupboard,’ and you could have an investigation.
“The police could arrive at someone’s house and say we’ve been told that you have such a display at your house,” Oppenheimer added.
Attacking this submission, Ngcukaitobi said limiting the display to private spaces would not end it.
“If the court finds that so-called private displays are acceptable and if it accepts the meaning we ascribe to the flag (that it promotes white supremacy), what this means is that there are certain people in this country who are allowed to raise their children to be racist,” he said.
“But that is completely against the ethos of the Constitution because the obligation of the courts is to eradicate racism, not to mollycoddle racists.
“The Constitution does not envisage a universe in which a parent can raise their child to be racist. It’s harmful to the child.”
But private spaces did not only mean homes, Ngcukaitobi said.
“It could be a school, it may be a private school. It could be a private church.
“There is therefore hardly any space which is private to one race to the exclusion of another, especially in modern South Africa.”
In his judgment, Judge Mojapelo had said displaying the old flag in private spaces like homes and schools was equally unacceptable because black people worked there.
The flag simply had no place in a post-1994 South Africa, Ngcukaitobi submitted.
“In contemporary South Africa, the flag continues to represent white domination over black bodies. But it’s worse than that, because in 1973 the UN declared apartheid to be a crime against humanity.”
Judgment was reserved.
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