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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
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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