Get more Mail & Guardian
Subscribe or Login

Mandela Foundation approaches ConCourt over apartheid flag tweet ruling

 

 

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.”

Subscribe to the M&G

Thanks for enjoying the Mail & Guardian, we’re proud of our 36 year history, throughout which we have delivered to readers the most important, unbiased stories in South Africa. Good journalism costs, though, and right from our very first edition we’ve relied on reader subscriptions to protect our independence.

Digital subscribers get access to all of our award-winning journalism, including premium features, as well as exclusive events, newsletters, webinars and the cryptic crossword. Click here to find out how to join them.

Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

Related stories

WELCOME TO YOUR M&G

If you’re reading this, you clearly have great taste

If you haven’t already, you can subscribe to the Mail & Guardian for less than the cost of a cup of coffee a week, and get more great reads.

Already a subscriber? Sign in here

Advertising

Subscribers only

R270m ‘housing heist’ bid deprives people of decent homes

After alleged attempts to loot Eastern Cape housing funds, 39 200 people in the province will continue to live in atrocious conditions

Cabinet reshuffle not on cards yet

There are calls for the president to act against ministers said to be responsible for the state’s slow response to the unrest, but his hands are tied

More top stories

R270m ‘housing heist’ bid deprives people of decent homes

After alleged attempts to loot Eastern Cape housing funds, 39 200 people in the province will continue to live in atrocious conditions

Stolen ammo poses security threat amid failure to protect high-risk...

A Durban depot container with 1.5-million rounds of ammunition may have been targeted, as others in the vicinity were left untouched, say security sources

Sierra Leoneans want a share of mining profits, or they...

The arrival of a Chinese gold mining company in Kono, a diamond-rich district in the east of Sierra Leone, had a devastating impact on the local community, cutting its water supply and threatening farmers’ livelihoods – and their attempts to seek justice have been frustrated at every turn

IEC to ask the courts to postpone local elections

The chairperson of the Electoral Commission of South Africa said the Moseneke inquiry found that the elections would not be free and fair if held in October
Advertising

press releases

Loading latest Press Releases…
×