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To a lay reader Judge Lamont's judgment in the Ernst Roets case may appear to be a move to duck a controversial question. However, the relief sought by the NMF was misconceived and the court's approach therefore correct, writes Serjeant at the Bar.
In August 2019, the Equality Court, sitting in Gauteng, issued the following order: "In terms of section 21 (1) of the Promotion of Equality and Prevention of Unfair Discrimination Act for of 2000 ('the Equality Act'), it is determined that the display of the old national flag of South Africa introduced from 31 May 1928, and used throughout apartheid until it was abolished on 27 April 1994 ('the Old Flag'), at the 'Black Monday'' demonstrations on 30 October 2017 constituted: a. hate speech, in terms of section 10 (1) of the Equality Act; b. unfair discrimination on the basis of race, in terms of section 7 of the Equality Act; c. harassment in terms of section 11 of the Equality Act."
The court went on to order that in terms of section 21 (2) of the Equality Act, it is declared that subject to the proviso in section 12 of the Equality Act any display of the Old Flag constitutes: a. hate speech, in term of section 10 (1) of the Equality Act; b. unfair discrimination on the basis of race, in terms of section 7 of the Equality Act; c. harassment in terms of section 11 of the Equality Act.
READ | Apartheid flag: 'This was a witch-hunt from the Nelson Mandela Foundation' - Roets
Following the issuing of this order Ernst Roets of AfriForum, which had been a party to the proceedings before the Equality Court, published a tweet on his personal Twitter account. Contained within the tweet was the image of the Old Flag and the words "Did I just commit hate speech?" The next day he again published a tweet on his Twitter account containing the first tweet in full underneath the words:
"The reaction to the 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 to the NMF's (Nelson Mandela Foundation which was also a party before the Equality Court) quest for apartheid style censorship and banning continues."
Following these tweets, the NMF approached the High Court for an order by which AfriForum and Roets should be compelled to show cause why they were not in contempt of the order of the Equality Court. There appeared to be no evidence that AfriForum had authorised Roets to tweet in this provocative manner and hence the case turned exclusively thereafter upon whether Roets, as an individual, should be held in contempt of the order.
Judge Colin Lamont based his decision on the manner in which the Equality Court had set out the rationale for its order: "Contrary to the protestations of AfriForum: the relief sought by the applicants in this matter is not a banning order against the Old Flag. The Mandela Foundation seeks only an order that will declare to all South Africans (including potential offenders and complainants) that the display of the impugned flag must be confined to genuine artistic, academic or journalistic expression in the public interest (i.e., it must qualify for the proviso in section 12 of the Equality Court Act). Any display beyond that may be brought before the Equality Court for the displayer to prove that the display was defensible (under the proviso) or to prevail on the Court to make an appropriate order."
Judge Lamont thus found that it was inappropriate to consider contempt proceedings when it was clear from the meaning of the order as divined from the manner in which the Equality Court had set out the scope thereof that it was for the Equality Court to determine whether Roets had breached its order, and if so, what sanction should be imposed. The judge went on to question the very purpose of the relief sought by NMF in the High Court, in particular the purpose of an order calling upon Roets to show cause why he should not be held in contempt. In other words, there seemed to be no purpose served to make such an order which would simply mean that the parties would have to return again to the High Court to argue whether a final order should be granted holding Roets in contempt.
In following this line of reasoning, the High Court seems to be correct. NMF is entitled to approach the Equality Court for a determination as to whether Roets has any defence, in particular whether his tweet can possibly be brought under the scope of genuine artistic, academic or journalistic expression in the public interest. To approach the matter in this way is not to diminish the importance of holding those who breach court orders to account nor to justify what was certainly, on the face of it, a defiant and provocative tweet against an order determined to move the country away from displays of our racist history.
To a lay reader Lamont's judgment may appear to be a judicial move to duck a controversial question. However, the relief sought in the forum approached by the NMF, being the High Court, was misconceived and for this reason the approach adopted by the court is correct. That should not however deter an application to the Equality Court to hold Roets accountable. It is important to assert the authority of courts over those who consider that they can act with impunity, particularly in the case of a judgment that has finally called a judicial halt to "bittereinders" who cannot accept the devastating consequences that apartheid as symbolised by the old flag has wrought on our country.
- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.
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