With a constitution that is enshrined against hate speech, is the old South African flag even legal?

As national retailers such as Wal-Mart, Amazon, Target, eBay and iTunes rush to strip the flag from their shelves, we are finally seeing progress – even if it came at the cost of nine innocent lives.

Dylan Roof, the racist who committed the murders, had photographs in which he wore the Rhodesian and old South African flags, burned the current US flag and proudly touted the Confederate flag. As a South African watching the Charleston tragedy unfold, it was dismaying to see that hideous old flag again, but at least it was keeping appropriate company.

The old South African flag, like the Confederate flag, is a flag that has entirely racist overtones. The former was flown proudly above the Union Buildings during apartheid, and the Confederate flag was flown in the battle to own slaves and to secede from the Union. As written in “A Declaration of the Immediate Causes which Induce and Justify the Secession of the State of Mississippi from the Federal Union”, Mississippi proudly declares: “Our position is thoroughly identified with the institution of slavery-- the greatest material interest of the world.” While some Americans may claim that it represents ‘Southern pride’, it still was the battle standard carried by the Southern army in their battle against the North, and the rest of the United States. To put it in context, it would be as if Orania hoisted their flag and tried to become an all-white country of their own by going to war against Gauteng. In the States, it is not only the symbol of institutionalised slavery and brutality, but it is also the symbol of treason. Besides, anything waved around by the Ku Klux Klan really has no further right to claim it is a harmless symbol of Southern history.

In the wake of the tragic murders of nine church-goers in Charleston by a white supremacist, the old ‘stars and bars’ Confederate flag is finally, thankfully, beginning to die the death it should have died decades centuries ago.

In 1924, a bill was introduced in the South African parliament for a new flag, as the British Red Ensign had been serving as a de facto flag since 1910. As with any change, chaos erupted in parliament because the British assumed the Afrikaners wanted to remove the imperial symbols. Natal Province threatened to secede (like a petulant child). It took three years before a design was agreed upon and the new flag was hoisted on the 31st of May, 1928. The base design of orange, white and blue was taken from the Van Riebeeck flag, and had been flown by the Dutch East India Company at the Cape from 1652 to 1795. It was used because it was the first flag to fly over the land (obviously, the narrative is exclusively Western) and since it no longer belonged to anyone, it was politically neutral. The South African addition to the flag was the addition of a tiny Union Jack (mirrored), the flag of the Orange Free State in the middle, and the Transvaal vier-kleur on the right. Ironically, there was huge pressure from the Afrikaans change the flag and remove the Union Jack from the flag after SA became a republic. Apparently, it wasn’t always clung to like a giant, nostalgic security blanket. The flag came down and was replaced with the new flag (which has a great history of its own) at midnight on the 26/27th of April 1994, just in time for elections. The old flag, which had represented the apartheid government and been worn by its officials, was relegated to the annals of history. Or, at least, we tried. But it still makes the occasional appearance, and never an appropriate one.

But that begs another question: with a constitution that is enshrined against hate speech, is the old South African flag even legal? Surely waving it around is tantamount to screaming racial slurs? Using the k-word is (and rightfully so) illegal, so it would follow that the old flag would be illegal too. Funnily enough, though, it isn’t. According to Marinus Wiechers, who was part of the team who compiled the Constitution, and Pierre de Vos, a  Constitution expert from the University of Cape Town, said the right to freedom of speech means people may still display the old flag. However, private companies can ban it from their workplaces.

With the recent removal of the Rhodes statue from UCT, and the discussions around changing the name of Rhodes University and removing apartheid-era statues, a conversation about the worthiness of this old flag is definitely worth having. Like the Confederate Flag, the Nazi banner and the Rhodesian flag, these are symbols of past injustices that are trotted out to defend things like ‘heritage, not hate’ (in the case of the Confederate flag) or the continued racial cleansing of Europe (oh, Neo-Nazis.) But to be honest, the only real value any of these flags have is serving as a useful shorthand for pointing out white supremacists to the rest of us.