AfriForum and its deputy CEO, Ernst Roets, have won in a court case brought against them by the Nelson Mandela Foundation (NMF), after Roets tweeted the old South African flag hours after gratuitous displays of it were ruled to be hate speech.
The foundation believed the lobby group was in contempt of court following the hate speech ruling, but Judge Colin Lamont has dismissed the NMF’s application, ruling on Tuesday morning at the Equality Court sitting in the Gauteng High Court that Judge Phineas Mojapelo’s earlier ruling was a declaratory order, and contempt of court only applies to a court order where someone is instructed to do something.
This isn’t AfriForum’s first victory with Lamont presiding, with the judge having ruled in the lobby group’s favour when they argued that Julius Malema’s singing of struggle song Dubula iBhunu – often translated as “kill the boer” – was hate speech back in 2011, when the EFF leader was still president of the ANC Youth League (ANCYL).
The Nelson Mandela Foundation filed the application after Roets took to Twitter and posted the apartheid flag, asking: “Did I just commit hate speech?”, just hours after a scathing judgment banned its gratuitous display.
Arguing before Judge Colin Lamont on September 4, the foundation submitted that Roets had insulted the dignity of the courts and should be found in contempt.
Deputy Judge President Phineas Mojapelo declared that the “gratuitous display” of the flag constituted hate speech in terms of Section 10(1) of the Equality Act, unfair discrimination in terms of Section 7 of the act, and harassment in terms of Section 11 of the act.
Roets, however, claimed that he had posted the flag for academic purposes and in his own capacity and not that of AfriForum.
He also argued that he and AfriForum could not be held in contempt of court because no order was granted against them specifically and that his tweets fell under the proviso that the display of the flag must be confined to genuine artistic, academic, or journalistic expression in the public interest, in terms of Section 2 of the Equality Act.
Arguing on behalf of the foundation, advocate Tembeka Ngcukaitobi said there was no way that AfriForum and Roets were not aware that the judgment prohibited the gratuitous display of the flag.
He also argued that Roets’ argument in the matter had no academic context and questioned why it was necessary for Roets to have an academic enquiry.
“They commit contempt the moment they conduct themselves in a way calculated to bring about disrepute to this court,” Ngcukaitobi said.
Roets’ lawyer, senior counsel Cedric Puckrin, argued that his client’s version stating why he tweeted the picture of the apartheid flag after there was a judgment banning its gratuitous display should not be ignored, News24 previously reported.
He also argued that the matter had nothing to do with AfriForum because Roets tweeted in his personal capacity.
(Compiled by Daniel Friedman. Background reporting, News24 Wire)