Jun 22, 2021

Mawazo Writing Africa

Writing about the main

‘We are ready to go to court’ — Fight looming over origin of SA flag

The artist who claims he designed the SA flag says he is ready to go to court to prove his case.

Thembani Hastings Mqhayi, 55, claims he was defrauded of his intellectual property rights in 1994 when then-president Nelson Mandela called for a design to unite the nation.

Mqhayi, from Fort Beaufort in the Eastern Cape, said credit for the flag went to Frederick Brownell, who died in May 2019. He said the final product, the current SA flag, was “plagiarised” from his original work.

Mqhayi argues that the design of the flag was erroneously credited to Brownell, former head of the department of arts & culture’s bureau of heraldry, who presided over the design of the flag.

Mqhayi said Brownell was not meant to do design work, but he was rather meant to co-ordinate and receive all submissions from artists. Mqhayi claims it was through his job as co-ordinator that he “defrauded me by using my flag design almost as is, but tweaked it by simply cutting out one side … the one with a black colour”.

He said his cry to the department of arts & culture to “restore this important part of our history” had fallen on deaf ears. Instead he had been subjected to delays and was ridiculed by the department, “which initially didn’t even recognise me as an artist and went on social media to tell people not to listen to me for trying to talk ill of the dead”.

TimesLIVE learnt this week that Mqhayi holds a managerial position in the department of arts & culture.

“I’ve been called names, had been accused of wanting to sully a great patriot’s name, and had been questioned on why I had to wait for Fred [Brownell] to die first before I came forward. But the reality is that the issue of plagiarism of my work had been in the public domain even before he died, and Fred never disputed my claims that I’m the one who designed the flag. But he went with the flow that he was a designer, even though he was the co-ordinator and was responsible for overseeing all submissions made towards the project,” Mqhayi said.

With the help of a fellow artist, author and social activist Bandile Magibili, whom he met 16 years ago, he was persuaded not to relent. Mqhayi said he was gaining strength to fight for his cause.

“We are ready to approach the courts. I have nothing to lose, after all. Our lawyers have done a lot of work already … They are just doing more research to make our case watertight.

“I’m not going to court because of money or wanting fame, as some would think, but it is rather to seek justice, to rectify history and to get redress of what I strongly believe I was defrauded of,” he said.

Magibili said he first met Mqhayi at an event he was hosting for artists. Mqhayi attended the event in his capacity as a manager in the department of arts, culture and recreation.

“As time went on, I got to know that he is the man who designed the SA Democratic Alliance Union logo and a lot of other symbols,” said Magibili.

“I went to search on the internet to verify and see if I could find the designer of the Sadtu [SA Democratic Teachers Union] logo but I got exposed to people like Frederick Brownell. I realised that you could find a lot of white people there but not any black people.”

He said he and Mqhayi became acquainted, and during a visit to Mqhayi’s house he learnt that he was in fact behind the design of the SA flag.

“I saw some paintings, paintings of war that he had created during apartheid. I got interested in documenting his work and that was when he told me he had also designed the SA flag. I said, ‘No way there is a guy who says he designed the flag.’”

Magibili eventually got permission from Mqhayi to publish his artwork in a book he was working on.

News about plagiarism of the flag first surfaced around 2012 after the publication of Magibili’s book titled 2 B BLACK, which contained some of his paintings and thoughts.

“Some people ask why did he not speak out back then, but it is because he was politically involved back then. It was not preferred for [comrades] to be known to have designed certain symbols and, on top of that, he did not want to speak against his very own comrades. He did not do this to be famous,” Magibili said in Mqhayi’s defence.

But the department of arts, culture and recreation is sticking to its guns that Mqhayi is not the designer of the flag.

Themba Mabaso, director of the bureau of heraldry, said an investigation had shown there was no substance to Mqhayi’s claim.

“We located the designs that he submitted for the flag design call. His designs are far removed from the current flag design,” said Mabaso.

“Since then, he changed his tune and requested us to investigate his claim of the Eastern Cape provincial coat of arms. We are now looking at [this] claim. We are working on providing him with the information before the end of the month.”

As an artist who worked under the apartheid regime, Mqhayi said: “I was familiar to many people from the race that perceived and propagated the notion that they are superior than others by taking credit for our work, hence I didn’t take necessary steps to rectify the intellectual property theft.”

Mqhayi also claims to have designed the logo of Democratic Nursing Organisation of SA (Denosa).

In a letter that Mqhayi and Magibili wrote to the parliamentary portfolio committee on sports and culture in November 2019, they bemoaned arts and culture minister Nathi Mthethwa’s conduct, describing it as “shameful and flawed” after he referred their complaint about the flag back to the heraldry office — “the very office which is responsible for the fraud to resolve and investigate itself on the maladministration that led to the flag design conflict”.

“It is with the above subject that we decided to approach the SA parliament to intervene as a matter of urgency. Minister [Nathi] Mthethwa has monumentally failed to resolve the matter of the SA flag conflict,” they said.

Mqhayi said that after initially refuting claims that he is a real artist and that there was no proof that he ever submitted work to the department, Mthethwa’s office has now come back to him, saying that they have seen some of his submissions, “except the one with a flag”.

He said being constantly asked to prove that he was the original artist “is like a mother who knows that she has given birth to a child, but asked to prove that with a DNA”.

“This journey feels like that to me. For too long I was just OK to see my ‘child’ grow as long as the child is alive … it didn’t matter who raised the child.

“I was OK to see the flag that I designed flying high in SA, but I’ve gathered so much strength over the years that I feel like this really needs to be rectified — that it is not enough just to see your child grow, but to take ownership of the child as the rightful mother,” he said.

Mqhayi wants the true symbolism of the flag to be known.

“The truth about what took place when one was designing the flag must be known. When I designed the flag I didn’t just design a nicely shaped flag with attractive colours. There is a deeper meaning behind each colour that is shown in that flag, and it is my desire that the meaning of this flag be documented, which is not the case currently.”

His lawyer, Joel Baepi, said they were hoping the department would co-operate so that the matter did not end up in court.

“I am told by my client that when the call [for the flag design was made] about 7,000 entries were received,” said Baepi, who added that it was a public process where records should have been kept.

They had pertinent questions they needed answered by the department. Among those is to find out whether Brownell was part of the panel that selected the final design of the flag, as this formed part of his job description at the time.

“It would be very strange that his own submission was then selected … But the fact is, we have to look at what the process agreed to was. If the process was that members of the committee were allowed to submit too out of their patriotic interest, then there is nothing wrong with that or being the one who is chosen,” he said.

“The next question would be, when there was a vote on which one it would be, did he excuse himself? So that is why it is important for us to get the agreed set of processes.”