Eastern Cape artist claiming to be rightful designer of SA’s flag, takes matter to court

A Makhanda based artist who claims to be the original designer of the South African flag is taking the matter to court to fight for recognition. Vuyolwethu Sangotsha reports.

Thembani Hastings Mqhayi, 56, has filed papers in the Pretoria high court against sport, arts, & culture minister Nathi Mthethwa and the State Herald, cited as the first and second respondents respectively.

Mqhayi, who is originally from Fort Beaufort, is based in Makhanda, where he works for the department of sport, arts & culture.

The recognised designer of SA’s postapartheid flag, Fred Brownell, to whom Mqhayi claims his work was credited, died in 2019, aged 79.

Mqhayi’s spokesperson, Bandile Magibili, told DispatchLIVE that Mqhayi had resorted to the legal route after trying in vain to convince the government “to protect his intellectual property rights”.

“Minister Nathi Mthethwa, the State Herald including the state attorney were served with a notice of motion — an application to compel Mthethwa to disclose pertinent information regarding the developmental design process [in 1993-4] of the democratic national flag of SA,” Magibili said.

“In July of 2021, Thembani Hastings Mqhayi through his attorneys, Baepi Attorneys Inc, invoked the Promotion of Access to Information Act 2 of 2000 [PAIA”] to the first respondent with no success in receiving the requested information.”

The requested information included:

  • The name and capacity of each member who made up the Heraldry Committee who chose the design of the flag for recommendation to the president;
  • Minutes of all meetings of the committee where the designs were approved;
  • Names and contact details of everyone who submitted designs;
  • The design approved by the committee or the second respondent;
  • The selection process;
  • The final recommendation by the committee of the design submitted to the president for approval.

Magibili said the minister did not respond to the request.

“An application to compel [a year later] was submitted and minister Mthethwa has 15 days to file an opposing affidavit,” Magibili said.

In his founding affidavit, seen by DispatchLIVE, Mqhayi said he had heeded former president Nelson Mandela’s call for artists to submit designs for the new flag.

“I submitted five different original designs and one of my designs was later adopted and used to create the flag as we know it.

“I submitted my designs early in 1994 by sending it through the main branch of the East London post office.

“I did not keep any copy of any of the designs I sent to the office of the first respondent.”

Mqhayi alleged in the court papers that he did not receive all his original designs from the Heraldry office in 2021 after “repeated requests” to the ministry of sport, arts & culture.

“It is my belief the office of the first respondent refuses or has failed to provide me with all the designs I submitted as those will show I have a claim for credit of the design of our country’s flag,” Mqhayi said in the papers.

“I did not get any confirmation of receipt of my designs from the office of the second respondent after I submitted them in 1994, nor did I hear from them.

“To date, the design of the flag has been credited to the State Herald and the late Fredericks Brownell who was also part of the panel that chose and was said to have recommended the chosen design of the new [flag],”

In his correspondence to Mqhayi, dated April 27 2021, seen by DispatchLIVE, Mthethwa confirmed Mqhayi’s original design submissions were received, but denied his designs formed part of the flag.

“According to the design submissions bearing your name, there are no design elements consistent with those of the South African flag.

“Therefore, the department refutes the claim that your designs were used in the development of the South African flag,” Mthethwa wrote.