I was initially impressed with the calm, collegiate way AfriForum’s Ernst Roets reacted to his lobby group’s defeat outside the Equality Court on Wednesday. He seemed a good loser.
The magnanimity was short-lived, as shortly afterwards Roets took to Twitter to post a picture of the flag – a move that exhibited the maturity level of a high school pupil smoking a cigarette in the middle of the quad simply because the rules say he’s not allowed to.
Roets then came up with the extremely disingenuous argument that, since he was an academic, and since his display of the flag was accompanied by the caption, “Did I just commit hate speech?”, his question on Twitter was, therefore, an “academic” one.
It’s a staggeringly weak line of reasoning, which assumes that if you are an academic, everything you do can be considered part of your academic research, simply if you say it is.
If taken to its logical conclusion it could lead to a biology professor, caught with his pants down at a brothel, arguing that he was doing field research for a paper on the copulative habits of sex workers. Which is not to say frequenting a brothel is even vaguely on the same level of deplorability as hiding behind “research” and freedom of speech defences as an excuse to indulge in a deeply insensitive fetish for apartheid nostalgia.
It’s easy to dismiss Roets as callous, or provocative, or just plain racist – because sharing an image hours after a judge has explained in great detail the hurt it causes and the oppression it symbolises to the majority of South Africans is surely all those things.
But, I had always begrudgingly respected what I assumed to be his intelligence. He seemed erudite, rational, and measured, particularly when standing next to AfriForum’s number one, naive troglodyte Kallie Kriel.
The past few months, however, have convinced me that Ernst’s attempts to portray himself as a beacon of rationality and an academic powerhouse cover up a lack of substance that is startling when you consider how much support the organisation enjoys.
Trying to pass off a hateful symbol tweeted from your personal account in full knowledge of how it would be received – Roets himself, after all, later tweeted that he had “expected” the reaction he got to his initial apartheid flag tweet – as part of an academic study as if this somehow absolved him of purposefully inciting hatred on a public platform is not only just silly, but a gambit I predict will not hold up in court.
As the Nelson Mandela Foundation has announced that it has filed an urgent application at the high court in a bid to take Roets to task over what it called “contempt of court”, the accuracy of my prediction will be tested in time.
The Equality Act does not protect academic displays of the flag that were made in bad faith, a statement released by the foundation said.
But recent arguments from Roets convince me that this type of paper-thin logic is to be expected. His primary argument for why the flag did not constitute hate speech was that the definition did not extend to symbols. In his ruling, Judge Phineas Mojapelo savaged this “literal interpretation” of the law by trying to limit the understanding of expression of ideas to that conveyed by “words” alone.
He said the reference to “words” should be understood as communication beyond verbal or written language alone, but that symbols, too, could be covered, and so a flag could be considered hate speech.
Despite his claim that he was a crusader for freedom of speech, Roets’ history in court shows he has only ever defended ideas advanced by himself and his followers. He has been involved in laying hate speech charges against multiple parties. This resulted in Julius Malema being stopped from singing songs including words often translated as “Kill the Boer” back in 2011, when Malema was still president of the ANC Youth League.
If Malema had argued that a song couldn’t constitute hate speech because singing was different to speaking, he would have been widely ridiculed for his stupidity. So too does Roets deserve to be for his attempt to convince a court of law that it should apply the law in such an absurdly literal fashion.
But the Dubula iBhunu case highlights not only the ridiculousness of Roets’ “symbols are not speech” argument, but the hypocrisy of his freedom of speech argument.
Roets claims hate speech must entail some kind of call to action. But while it is now taken for granted in media coverage that Dubula iBhunu means kill the boer, this is disputable. Some of those who have sung it have made the argument that this was a simplistic translation of the phrase.
It has been argued by some that the song has been misinterpreted, with Gwede Mantashe quoted by the University of Cape Town’s Joelien Pretorius in a research paper that “ibhunu” is a metaphor for the oppressor.
“When we talk [about] amabhunu, we were not talking [about] whites, we were talking about the system [of apartheid] … The biggest problem I have is when journalists interpret (Dubula Ibhunu) as ‘Kill the boer, kill the farmer’, which is a vulgarised interpretation of the song,” Mantashe said.
This argument was backed up legally when the Human Rights Commission (SAHRC) found earlier this year that the singing of the struggle song did not constitute hate speech, as the song was “figurative and political” and “does not call for the killing of Boers”.
So Roets, when it suits him, will argue as he did following the ruling that the flag on its own cannot be considered hate speech without it being accompanied by some kind of “call to action to inflict harm” , but is unable to see that a song sung at rallies may not be an incitement to violence on its own either, as it is symbolic, not literal in meaning.
The freedom of speech argument has always seemed strange from AfriForum, who spend a great deal of time attacking this freedom when it results in the expression of ideas they disagree with.
With his display of the apartheid flag hours after doing so “gratuitously” was outlawed, Roets has proven absolutely nothing, except that he is a doos. But since he’s such a principled freedom of speech absolutist, he has no choice but to recognise my right to say that.
WARNING: The tweet below includes offensive imagery:
The reaction to this tweet is as expected. The judgment said the flag may be used for academic purposes. I am a scholar of Constitutional Law, currently doing my doctorate. This is an academic question. It seems the NMF’s quest for apartheid style censorship & banning continues. https://t.co/qRvfFzd2RK
— Ernst Roets (@ErnstRoets) August 22, 2019