The Nelson Mandela Foundation (NMF) will be seeking to appeal directly to the Constitutional Court against the refusal by the high court to hold AfriForum, and its deputy chief executive Ernst Roets, in contempt of court.
Hours after Johannesburg high court Deputy Judge President Phineas Mojapelo declared that gratuitous displays of the apartheid flag amounted to hate speech, Roets tweeted a picture of the flag asking, “Did I just commit hate speech?”.
The foundation then approached court urgently for a contempt order, saying 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.”
But on Tuesday morning, Judge Colin Lamont refused to hold them in contempt saying Mojapelo’s order was “declaratory” only — and to be held in contempt of a court order, the court order had to require a person to do, or not do, something.
Roets may still be held to have breached the Equality Act, Lamont said, 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.
In court papers, served on Tuesday afternoon by the foundation, they said Lamont had been mistaken in a number of respects.
He had gotten the test for contempt wrong, said the foundation. He was incorrect to say that, to be in contempt of a court order, the order had to require a person to do, or not do, something.
The foundation referred to a ConCourt judgment, which said contempt consisted of “the commission of any act or statement that displays disrespect for the authority of the court”. There was also case law to suggest that contempt may even be committed by a person who is not directly bound by an injunction, said the foundation.
Lamont was also wrong to have said that AfriForum did not authorise Roets to tweet as he did.
The foundation said it would go directly to the ConCourt but was also conditionally asking for leave to appeal from the high court, should the ConCourt refuse a direct appeal.
The day after Roets’ tweet, he retweeted the offending words, accompanied by a comment saying that the reaction from people to his earlier tweet was “as expected”. Roets 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.”