An Eastern Cape artist who claims to be the original designer of the South African flag is taking the matter to court to fight for recognition.
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.”
