"This to us was a witch-hunt from the Nelson Mandela Foundation (NMF), to shut down voices of people who disagree with ideas of the ruling party and ruling elite. The broad ruling alliance."

These were the words of AfriForum head of policy and deputy chief, Ernst Roets, after walking out of the Equality Court sitting in the Gauteng High Court in Johannesburg, where he was found not to be in contempt of court on Tuesday. 

Roets said the issue for AfriForum and himself was not about the flag, adding that they discouraged people from displaying it. He said their issue was about protecting civil liberties and freedom of expression. 

"We expected the judgment would go this line. We would have been very surprised if it went any other way. What we are more concerned about was that the Nelson Mandela Foundation was prepared to take this step and push for people to be thrown in jail for tweeting a picture of a flag and asking a question about that picture.

"Obviously that cannot be a crime. If that is the case, then we should ask a question if this really is a democracy," Roets said. 

The Nelson Mandela Foundation (NMF) took Roets to the court, filing an urgent application that he be found in contempt of court, after he tweeted a picture of the apartheid flag, just hours after its gratuitous display was declared hate speech. 

Roets tweeted: "Did I just commit hate speech?", arguing that his tweet was for academic purposes. 

The foundation argued that Roets had insulted the courts and was acting in provocation when he tweeted the flag. Roets argued that he tweeted in his personal capacity and not as an AfriForum representative.

Handing down judgment, Judge Colin Lamont said that there was insufficient evidence to prove that AfriForum had authorised Roets to tweet on its behalf.

Declaratory order

In the hate speech judgment, Deputy Judge President Phineas Mojapelo declared that the "gratuitous display" of the flag constituted hate speech in terms of Section 10(1) of the Equality Act, unfair discrimination in terms of Section 7 of the act, and harassment in terms of Section 11 of the act.

Lamont said it was apparent from that order and it context that Mojapelo's intention was to issue a declarator. He said the order set the standard of morality expected to be adhered to by society. 

"It is apparent from the judgment that the court intended for the issue of display to be dealt with in the court, which deals with the enforcement of the prohibition, namely the Equality Court dealing with the matter. 

"That court would hear the matter and make appropriate rulings. This in my view is precisely why the order does not contain a directive prohibiting the display of the flag. There is no order ad factum praestandum," said Lamont.

Lamont made no order on costs, stating that the matter concerned the Equality Court and the constitutionality of the conduct of members of society. He gave the NMF, AfriForum and Roets seven days to make submissions on costs only.

Study judgment and pen way forward

He said the foundation was welcome to file a hate speech complaint in the Equality Court. 

NMF spokesperson Luzuko Koti said the foundation welcomed the judgment, and that the process was necessary and important for democracy and the rule of law. 

He added that they would, however, study the judgment and decide what to do next. 

"We would like to emphasise that we as a foundation respect the judiciary, abide by the law and support the work of the judges," Koti said.