The Johannesburg high court on Tuesday dismissed an application by the Nelson Mandela Foundation that the Afrikaaner lobby group, and its deputy chief executive Ernst Roets, be held in contempt after tweeting an image of the apartheid flag.
The Nelson Mandela Foundation’s Sello Hatang said in urgent court papers filed last month that the “unmistakable intent” of the tweet was to “mock and provoke all those South Africans — black and white — who were celebrating the judgment, and felt vindicated and protected by the judgment.”
Judge Colin Lamont said Roets could not be held in contempt because Deputy Judge President Phineas Mojapelo’s order was “declaratory” — he declared that the gratuitous display of the flag was hate speech.
To be in breach of a court order, the order had to require a person to do, or not do, something.
Lamont quoted from Mojapelo’s judgment, where the deputy judge president said: “Contrary to the protestations of Afriforum, the relief sought by the applicants in this matter is not a banning order against the old flag.”
Lamont said that by declaring, instead of banning, Mojapelo’s order “sets the standard of morality expected to be adhered to by society”.
Roets may still be held to have breached the Equality Act, said Lamont, but the Equality Court was the right place to deal with it.
Lamont also said that Roets’s tweet was not authorised by AfriForum and he was not acting on his organisation’s behalf when he tweeted.
Roets tweet was posted a few hours after Mojapelo’s judgment. Posting a picture of the apartheid flag, Roets asked: “Did I just commit hate speech?”
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 and that he was “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.
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.”