Concourt dismisses Mandela Foundation’s appeal to jail Ernst Roets over old flag tweet

Ernst Roets, AfriForum Head of Policy and Action, speaks to the media after Judge President Phineas Mojapelo delivered judgment in the Nelson Mandela Foundation’s so-called “apartheid flag” case in the Equality Court sitting in the High Court in Johannesburg. 21 August 2019. Picture: Tracy Lee Stark

The AfriForum head of policy and action had earlier won his case against the foundation’s attempt to have him found guilty of contempt of court.

On Tuesday afternoon, AfriForum’s Ernst Roets said that the Nelson Mandela Foundation’s (NMF’s) application to appeal a ruling by the Equality Court in favour of Roets and his display of the old South African flag had been dismissed by the Constitutional Court.

In an order dated November 13, the court found that it would not be in the interests of justice to have AfriForum’s head of policy and action jailed for a tweet.

Their application for leave to appeal had included an application for direct access to the Constitutional Court, NMF spokesperson Luzuko Koti said in September.

In that month, the Equality Court, sitting in the Gauteng High Court in Johannesburg, had ruled that while Roets might in due course be held to have breached the provisions of the Equality Court Act, he had not been in contempt of court when tweeting a picture of the old flag.

While handing down judgment, Judge Colin Lamont had said: “This, in my view, is precisely why the order does not contain a directive prohibiting the display of the flag. There is no order ad factum praestandum. ”

The NMF in its application argued that the court “fail[ed] to consider that contempt of court consists in ‘the commission of any act or statement that displays disrespect for the authority of the court’ … or in ‘violating the dignity, repute or authority of the court’.”

In August, Roets had tweeted his picture of the apartheid flag just hours after the same court had declared the gratuitous display of the flag hate speech. AfriForum had been arguing in favour of not having the flag’s display declared hate speech.

His tweet caused outrage on social media.

The court ruled: “Gratuitous displays of the old flag express a desire for black people to be relegated to labour reserves, a pining for the killing, the torture, the abductions, a melancholia for the discrimination, the death squads, the curfews and the horrific atrocities committed under the flag.”

Judge President Phineas Mojapelo added: “The right to freedom of expression is widely protected in our law. However, it does not protect the right to hate speech and does not trump the right to human dignity. That is so because of our history – which is a painful one.”

In a statement AfriForum welcomed the Constitutional Court’s decision.

“This is a confirmation that the NMF is busy with its own political agenda, which comes down to nothing more than a witch-hunt – a witch-hunt that cannot be justified on the basis of law,” said Roets.

(Background reporting, News24 Wire)

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