Forget the flag, case was really about the culture war waged by the ruling elite
Legal commentators who analyse court judgments often run the risk of getting entangled in technical arguments to such an extent that they appear oblivious to the underlying dynamics of the case at hand. This is particularly true for political issues, and even more so when group dynamics are at play. However, the phenomenon is not limited to legal analyses, but also occurs in political commentary in general — especially in a diverse country such as SA. As a result, the reader misunderstands the real issues at hand.
I have heard that Dario Milo is an excellent lawyer, but I couldn’t help but be reminded of this phenomenon while reading his and Lavanya Pillay’s criticism of AfriForum’s view on the 1928 South African flag. I was under the impression that at least Milo was a longstanding advocate of free expression. However, I was disappointed to learn that he has now also succumbed to the new notion that freedom of expression is worth eroding.
Despite all the analyses of and discussions about the flag case, the untouched elephant in the room remains that the case was not
about the flag — neither for the Nelson Mandela Foundation (NMF), nor for AfriForum. Both parties explicitly stated so. AfriForum repeatedly described itself as a “reluctant respondent” in the matter, given that AfriForum does not believe that the flag should be displayed. The NMF also argued that it was not really about the flag. Both parties made many public comments to this effect, while the NMF even invented the hashtag #MoreThanAFlag. But I will get to that later …
Milo and Pillay point out that the gratuitous display of the flag was declared hate speech. They then define “gratuitous” merely as any displays that do not serve any genuine academic, scientific, artistic or journalistic purpose. This may be technically correct, but it is a bit naïve to believe that the ruling elite would interpret the judgment as simplistically as this.
For the NMF, the ANC (supporting their case) and its alliance partners, the only exception in which the display of the flag would be permissible is when it promotes the ideological predispositions of the ruling elite. Displaying the flag as an artwork to ridicule white people would therefore be OK. However, displaying the flag as an artwork that can be even remotely interpreted as romanticising anything with which the flag is associated would be regarded as gratuitous and hate speech.
Milo and Pillay selectively point to only one of many arguments put forth by AfriForum, namely that the Equality Act particularly prohibits words that may reasonably be construed as hate speech — and displaying a flag does not constitute words. They then conclude that “[it] is obvious that hate speech can extend beyond words” and that the dismissal of that particular argument by the court should be welcomed. What the authors seem to forget, however, is that this was the exact same argument put forth by Milo’s own client — the South African Human Rights Commission — in the very same case! To publicly criticise AfriForum for this, while the same argument was your own client’s position, appears very odd indeed.
The truth of the matter is that the number of people who actually display the flag or who associate themselves with what it represents is negligibly small — even in the Afrikaner community. When people do display the flag, they are confronted, boycotted or publicly ridiculed. People have moved on — including the Afrikaners.
The underlying issue here is the culture war waged by the ruling elite of this country, who struggle to cope with the fact that its government’s dismal failures are there for the world to see — to such an extent that it is now threatening the legacy of Mandela. So, to keep the struggle alive, they must publicly display and shoot down scapegoats; and these acts can then be branded as victories for the struggle. The added bonus is totalitarianism — more government control over various aspects of people’s private lives. And in this case, more control over speech and expression, even in the privacy of your bedroom, as per the judgment.
What the NMF has brilliantly achieved was to revive the old flag and present it as a significant force that must be destroyed. The deeper dynamic here is that it has succeeded in broadly associating Afrikaners — an easily identifiable minority community and one of which the ruling elite has a particular dislike — with the evils associated with the flag. It has then succeeded in arguing that the flag must be dealt with in the same manner as Nazi symbols are dealt with; and by implication succeeded in presenting Afrikaners as a community that should be treated like Nazis.
Celebrating the judgment, its supporters are already speculating about what should be banned next.
But while all this is happening, our well-meaning friends in the world of political analysis still think that the case was about the flag.