When AfriForum’s Ernst Roets tweeted an image of the apartheid flag, he was insulting the court and undermining its authority, the Nelson Mandela Foundation’s lawyers said in court on Wednesday.
The foundation has asked the court to set a date for Roets and AfriForum to explain why they should not be held in contempt of court for Roet’s conduct after Deputy Judge President Phineas Mojapelo declared that any gratuitous display of the apartheid flag amounted to hate speech.
It was only hours after the judgment that Roets tweeted the image of the flag asking: “Did I just commit hate speech?”
Did I just commit hate speech? pic.twitter.com/mlXsF8OBN1
— Ernst Roets (@ErnstRoets) August 21, 2019
The following day, Roets retweeted his earlier tweet, but this time accompanied by a comment saying that the reaction from people to his earlier tweet was “as expected”. He added that the judgment said the flag could be displayed 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,” Roets tweeted.
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
Then, in an interview with Radio 702, Roets said that while it was correct to respect the rule of law, courts were not always right. “We must remember that Nelson Mandela was illegal according to the laws of the time, that the apartheid system was legal according to the laws at the time and according to the courts at the time,” said Roets.
The foundation’s urgent application was heard by Johannesburg high court judge Colin Lamont. Lamont questioned the foundation’s counsel, Tembeka Ngcukaitobi, extensively about how Roets could be held in contempt when Mojapelo’s order did not prohibit or ban the display of the flag, it only declared that to do so would be hate speech. Lamont suggested that the right course of action would have been to go back to the equality court.
Ngcukaitobi argued that Lamont’s approach to the law of contempt was “a technicist and narrow” one.
The essence of contempt was lay in the violation of the dignity and authority of the court. This could take various forms; and there would be times where even if there is no prohibitory interdict, still the conduct in question “strikes at the heart of judicial authority”.
Referring to the interview on Radio 702, Ngcukaitobi said: “He compared your brother [Mojapelo] to an apartheid court. This is the worst insult to the deputy judge president”. He added that Roets had also compared himself to Nelson Mandela, invoking his name “in the most grotesque way”.
When asked by Lamont whether Roets was not just “stirring the pot”, Ngcukaitobi said that, in South Africa, one did not stir the pot on certain issues — these included race and the rule of law. “You don’t play with black pain,” he said. He said South Africa already had a problem with respect for the rule of law. The courts had to be strict in upholding their authority.
However Cedric Puckrin SC for Roets and AfriForum argued that Mojapelo’s order did not contain a prohibition so they could not be held in contempt. if Lamont found that the order was “absolutely clear, then that’s the end of it,” Puckrin said.
Puckrin said that, in the radio interview, all that Roets was really saying was that it is not disrespectful to a court to disagree with a judgment.
Puckrin added that if Lamont did not reject the contempt application outright, his clients still wanted an opportunity to argue their case as they were only given one day to respond.
Judgment was reserved.