New court ruling on old flag muddies water
Yesterday’s court ruling on displaying the old South African flag put the onus on individuals to argue whether it’s used to promote hate speech or not, a legal expert says.
AfriForum deputy chief extecutive officer Ernst Roets was not found in contempt of court for tweeting an image of the old flag after Judge Phineas Mojapelo ruled last month that gratuitous display of it constituted hate speech, unfair discrimination and harassment based on race.
Yesterday, Judge Colin Lamont dismissed the application by the Nelson Mandela Foundation accusing Roets of contempt of court.
Roets said: “This shows it was some form of witch-hunt from the Nelson Mandela Foundation to try to shut down the voices of people who disagree with the ideas of the ruling party and the ruling elite.”
Legal expert Andrew Boerner said Mojapelo’s ruling would have created difficulty in future rulings, as all the purposes would have to be defined. “In each case the parties would have to prove and define what is gratuitous and what is used for research and more.”
Each case would have to be assessed based on its merits, context and the judge’s interpretation, he added.
But political analyst Ralph Mathekga asked: “What is so defensible about the flag that people still want to use it? This is a question no court can deal with, that people have the right to offend on the basis of freedom of speech.”
But another analyst Andre Duvenhage said the ruling was the best decision the judge could have made as the initial judgment was not good for social cohesion.
The Nelson Mandela Foundation declined to comment.