As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Four people were arrested for public drunkenness at Brian’s Pub in Sea Point in Cape Town this weekend after they complained about the apartheid South African flag hanging on the wall. The response of some apologists for the pub provided another example of the tendency to turn arguments about what is right or wrong into arguments about human rights. This is done to avoid any discussion of the repugnant behaviour, to shield the wrongdoers from criticism, and to avoid any honest talk about the horrors of the apartheid past.
Brian’s Pub in Sea Point is around the corner from my flat. I often walk past it on my way to do my grocery shopping at the Spar, although I have never entered the bar to have a drink. From the outside, it looks a bit rough around the edges; the kind of place where somebody like me might look overdressed, snobbish, and (on most nights) suspiciously sober.
But I have often looked through the windows to see who was inside, recalling that a friend told me once that one evening during a late night drinking binge he met Miss Benoni of 1963 (or was it 1965?) in the Pub. (“Ek het mejuffrou Benoni in Brain’s Pub raakgedrink,” he said.) Miss Benoni – like many of the frequent punters at Brain’s Pub – had fallen on hard times, judging by the picture my friend posted later on Facebook.
When I saw that four people were arrested after complaining about some of the offensive memorabilia in the bar – particularly the old South African flag – I shared a colleague’s post on the matter:
We white South Africans need to confront the fact that apartheid was a crime against humanity. And this flag a symbol thereof. Burn it.
Now, most white South Africans will not explicitly express support for the old South African flag, just as most white South Africans of a certain generation will not admit that – either through our active and enthusiastic support or through our silence – almost all of us were complicit in perpetuating a crime against humanity: apartheid.
Most white South Africans will at least suspect that the old South African flag is a symbol of white supremacy and that it is not something one should defend in “polite company”. They might even know that white supremacists websites often prominently feature pictures of the old South African flag, along with other racist, white supremacist, statements.
In the nineteen seventies in apartheid South Africa the old South African flag was raised in an official ceremony every Monday and Friday at the racially segregated Afrikaans schools I attended (first Randhart Laerskool, then Alberton Hoёrskool, then Pietersburg Hoёrskool), while we all sang “Die Vlaglied”, a song that affirmed the symbolic link between the old flag and apartheid ideology; an ideology based on the notion that white people (but especially white Afrikaans people) had a God given right to rule South Africa and to own the land.
Even today, I can recite most of the words of this song; the words burnt into my memory by repetition; inscribed, so to speak, on my body. I look back with bewilderment (and with some empathy for the scared – but casually bigoted – boy that I was) at those flag raising ceremonies where we all enthusiastically sang “Die Vlaglied” without a care in the world for the white supremacist lyrics we were belting out: “Nooit hoef jou kinders wat trou is te vra:/ Wat beteken jou vlag dan Suid-Afrika?….”
This is how white supremacy works: it seeks to normalise oppression and exploitation and turns most white people (even white people who think that they are not white supremacists, who think that they are “good whites”) into accomplices.
Which brings me to some of the responses on social media to complaints about the display of the old South African flag at Brian’s Pub. Those who defended the display of the old South African flag did not do so directly. Instead they used rights-based arguments to defend the right of the owner to display the flag. They argued that one should not complain about the display of the old South African flag because it was displayed on private property, not in public. Or, as one person wrote on Twitter:
If you dont like it dont get yourself one dont go to places that show it go to places with ANC flags or whatever you like.
This is the same kind of argument often (wrongly) used when some or other business discriminates against somebody because of their race, or sexual orientation. The difference is that it is definitely illegal for a private company to discriminate against anyone on the basis of their race or sexual orientation, while it is arguably not illegal to display the old South African flag. (I say that it is arguably not illegal because one could develop an argument that displaying the flag – a symbol of white supremacy – in itself constitutes hate speech in contravention of the law.)
I am interested here not in the legalities of the matter, fascinating as these might be. Instead, I am interested in the techniques deployed by those who wish to end any discussion of white supremacy and its link to the old South African flag.
Only those who hold the most extreme views would defend the old South African flag explicitly. Although there are a few of those people lurking on the internet – the kind of people who believe Dan Roodt is an intellectual, and who use diminutives like “seuntjie” or “boetie” in a misguided attempt to bully those they do not agree with – they are not of any political consequence.
Most white South Africans would not be so explicit. Instead, some of them deploy a very specific version of human rights discourse in order not to have to talk about the fact that displaying the old South African flag is a celebration of apartheid.
Such individuals claim that the owner of Brian’s Pub has a right to display whatever he wishes on the walls of his pub because he is the owner of the space. They also deploy the language of choice (“if you don’t like it, don’t go”), which gestures towards a particular conception of rights; a conception of rights which used to be in fashion about 50 years ago.
These rights claims happen to be false. In South Africa the owner of a private business does not have the right to do what he or she wishes on the premises of the business. In fact, in South Africa the Promotion of Equality and Prevention of Unfair Discrimination Act (amongst others) curtails the rights of business owners in significant ways.
But even if these rights claims were not false, it is a logical mistake to invoke such rights claims to try and silence critics in an attempt to end all discussion of why the display of the old South African flag is morally reprehensible and why the pub should be pressured to remove the offensive flag.
As I have written before, just because you have a right to do something does not mean that it is right to do it. So, even if we assume that the owner of Brian’s Pub had a right to display the old South African flag and to celebrate white supremacy in this manner, this would not mean that displaying the old flag should not be subjected to severe criticism.
Having a right to do something is not the same thing as having a right not to be criticised for doing it. To hold otherwise would be to misuse rights discourse in an attempt to shut up opponents and to end debate – the very opposite of what a rights-based constitutional democracy is supposed to achieve. In the case of the old flag displayed at Brian’s Pub it would be an attempt at a soft form of censorship in the service of white supremacy.
Instead, I would argue an incident like the one over the weekend at Brian’s Pub should force us to ask serious questions about the way in which we have dealt with the apartheid past and its symbols in South Africa. Because the transition to democracy required compromises, it largely let white South Africans off the hook.
The result is that many white South Africans have not confronted and owned up to the full horror of apartheid and its ideological underpinnings. Although we and/or our parents are implicated in apartheid and although we all still benefit from it, many white South Africans are rather allergic to any talk of the recent apartheid past. (Ironically, right wing Afrikaners who keep on telling us that we should get “over it”, often incessantly talk about the injustices of the Anglo-Boer war.)
It is in this context that some people who say they will never themselves display the old South African flag, can nevertheless treat a disagreement about its display as if it is a perfectly normal disagreement, no different than a disagreement about whether one should become a vegetarian or whether the Bulls or the Stormers is the better team.
To use an extreme example to make the point: if the owner of Brian’s Pub had plastered the walls of his pub with pictures of the rotting corpses of maimed (white) children killed during bombing raids in the second world war, I would be surprised if many people would argue that this is a rights issue; just another normal disagreement between reasonable people. Most of us would be outraged by such an action, most notably because of the callousness displayed by the owner.
So, it’s time to take down that old South African flag, to ditch “Die Stem” from the National Anthem, to move all statues glorifying apartheid and colonialism to a graveyard where tourists can visit, much like people visit concentration camps in Germany (maybe at the Voortrekker Monument?), to get rid of the colonial trappings in Parliament; in short, to begin the work of symbolically reimagining South Africa.BACK TO TOP