Representing the Nelson Mandela Foundation (NMF), advocate Tembeka Ngcukaitobi argued in the Equality Court on Wednesday that Afrikaner lobby group AfriForum’s Ernst Roets should be jailed for 30 days for being in contempt of court for tweeting a picture of the old South African flag hours after “gratuitous” displays of it were ruled to be hate speech.

According to Ngcukaitobi, a proper reading of the recent ruling shows that Roets was clearly prohibited from displaying the flag.

His doing so amounts to a deliberate undermining of the courts for which he should be appropriately punished, Ngcukaitobi further argued.

Ngcukaitobi also questioned whether Roets needed to include a picture of the flag in his tweet, which he claimed was an “academic question” and therefore legal according to the new ruling.

An urgent application brought by the Nelson Mandela Foundation (NMF) seeking to hold Afrikaner lobby group AfriForum in contempt of court over Roets’ tweet continues to be heard at the Equality Court in Johannesburg on Wednesday, with advocate Cedric Puckrin acting for AfriForum. Judge Colin Lamont is presiding.

Roets tweeted the flag on August 21 along with the question “Did I just commit hate speech?”.

In another tweet, he argued that his use of the flag was legal as it was for “academic purposes”. He is also arguing that he tweeted it in his personal capacity and not on behalf of the organisation.

The Equality Act does not protect academic displays of the flag that were made in bad faith, a statement released by the foundation said at the time.

On Wednesday morning, Ngcukaitobi argued that anyone who read Roets’ tweet would interpret it as being from AfriForum, as it came from one of its leaders only hours after the judgment.

He further argued that the August 21 judgment must be enforced strictly, as it was a declaratory order which constituted more than just advice.

Ngcukaitobi said the absence of an interdict did not mean that AfriForum had not committed contempt of court.

Judge Lamont asked Ngcukaitobi if Roets’ actions could be considered contempt of court since the display of the flag was not prohibited but only declared hate speech by the ruling.

In response, Ngcukaitobi argued that this interpretation would be too technical and narrow, as Roets’ actions deliberately undermined the authority of the judiciary contempt and should therefore legally constitute contempt of court.

The application continues to be heard.

Judge President Phineas Mojapelo ruled that badly intentioned public displays of the old South African flag, which its detractors often referred to as the “apartheid flag”, should be limited, since “gratuitous display” constituted not only hate speech but also harassment, and could be interpreted as an expression of white superiority, divisiveness, and severe racial prejudice.

The flag was in use from 1928 to 1994 and was used by the Union of South Africa and its successor state, the Republic of South Africa, until 1994.

(Compiled by Daniel Friedman. Background reporting, ANA)