Defend Truth


Yes, Mr Roets, you did just commit hate speech


Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

The flimsy arguments of AfriForum and Ernst Roets following his tweeting of the old South African flag simply do not cut it. When are we going to accept that this flag is one of the most evocative symbols of apartheid?

Just hours after judgment was delivered declaring the gratuitous display of the old South African flag to be hate speech, AfriForum head Ernst Roets posted a tweet with the same apartheid flag with the question: “Did I just commit hate speech?”

He exploited a little crack in the judgment by claiming that it was not posted gratuitously, but for academic purposes. In doing so, in my view, he should not be condemned, but congratulated, for confirming that there is a need to question the use of divisive national symbols and for the reach and contours of free speech to be settled once and for all.

Otherwise, we are heading for a slippery slope that will take us back to the time when free speech was free only for white minority members of our population.

There was nothing academic about the tweets of Roets, the holder of an LLM in Public Law from the University of Pretoria and a doctoral candidate. If anything, he gratuitously displayed the apartheid flag. In the name of free speech, AfriForum and other like-minded groups are seeking constitutional protection of a horrible national symbol just as neo-Nazis did in the US to protect the swastika.

In 1978, the Illinois Supreme Court in Village of Skokie v. National Socialist Party of America was seized with a very difficult and public opinion-splitting issue of constitutionally protecting the public display of the swastika.

In that case, neo-Nazis – similar to what AfriForum tried to do in the apartheid flag case – argued that displaying the swastika during a protest march in the predominantly Jewish community of Skokie in Chicago was a constitutionally protected right under the First Amendment.

The Illinois Supreme Court at the time agreed that the First Amendment protected neo-Nazis, who had a protected freedom-of-speech right to display or brandish the swastika.

This was a turning-point decision because it overturned an earlier trial court ruling that issued a broad injunction prohibiting neo-Nazis from “marching, walking or parading or otherwise displaying…the swastika on or off their person; distributing pamphlets or displaying any materials which incite or promote hatred against persons of Jewish faith or ancestry or hatred against persons of any faith or ancestry, race or religion [within the village of Skokie]”.

The Illinois Supreme Court did not just stop there. The court left open the punishment of any criminal activity or conduct that may result consequent to exercising what I call “swastika speech”.

According to the court, “[I]f the speaker incites others to immediate unlawful action he may be punished – in a proper case, stopped when disorder actually impends; but this is not to be confused with unlawful action from others who seek unlawfully to suppress or punish the speaker.”

You may ask yourself: What do the swastika and Skokie have to do with AfriForum or South Africa? Perhaps before answering this question, I need to further state that the villagers of Skokie gave clear reasons for interdicting the display of the swastika in Skokie.

The villagers pointed to the “historical reality of genocide within recent memory” and the fact that there were many Jews and Holocaust survivors in Skokie. The villagers also argued that the display of the swastika is an “assault upon Jews by evoking the bitter memory of mother, father, children, brothers and sisters slaughtered under the swastika…[and] exceeds in degree anything…”

Interesting to note, and perhaps what many anti-apartheid South Africans would argue in support of the court action to outlaw what the Pretoria High Court has termed the “gratuitous display” of the apartheid flag, is the Illinois Supreme Court’s ruling that the swastika “is abhorrent to the Jewish citizens of Skokie, and that the survivors of the Nazi persecutions, tormented by their recollections, may have strong feelings regarding its display”.

AfriForum seems to be advocating for a more American-like expansive view of the display of the old South African flag, irrespective of the emotions it evokes.

Even Germany, a country that stretched the Hindu swastika (sauwastika) from a spiritual symbol to a national symbol of German superiority and subjugation of Jews, has outlawed Volksverhetzung (Nazi symbols). It has also gone as far as criminalising Holocaust denial. The Holocaust, like apartheid symbolised by the old flag, was a crime against humanity.

We should not forget that neo-Nazi paramilitary organisations like the Afrikaner Weerstandsbeweging (AWB) not only displayed the old flag to the agitation of black people, it also displayed it against the AWB’s swastika-like symbol.

It goes without saying what the old flag means to people who reject the new South African flag. Displaying the apartheid flag, as Roets did with his tweet, should be considered as an intention to reproduce and maintain the old discriminatory social order – and to connect the white remnants of separate and unequal South Africa with the Kruger and Smuts periods.

His gratuitous display of the old apartheid South African flag against the clear orders of a court of law is an indication that he nostalgically yearns for that period of collective whiteness with its history and its achievements – achievements that included committing crimes against black humanity with impunity and reducing black people to being “hewers of wood and drawers of water”.

The flimsy academic and pedantic arguments of AfriForum and Roets in trying to pacify concerned South Africans following his tweet do not cut it. When are we going to accept that this flag is one of the most evocative symbols of apartheid, designed to make anti-black white nationalists believe that whiteness is superior and that they belong to a group that deserves the title “Master” or “Baas”?

When are we going to accept that this apartheid- and colonially-influenced flag reflects a sense of superiority over other members of the South African population – a sense underpinned by prejudice, pugnaciousness and social dominance?

Arguing that displaying the flag does no harm is like saying it is okay to go around wearing a jacket with a swastika in the middle of a Jewish community as the neo-Nazis did in 1978 in Skokie.

Those who desperately want to be the rearguard of apartheid must do so without offending the civilised community of South Africa, blacks and whites. DM


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