The Equality Court must accept AfriForum deputy CEO Ernst Roets' version stating why he tweeted a picture of the apartheid flag - after a court ruling banning its gratuitous display, his lawyer has argued.
Senior counsel Cedric Puckrin submitted that Roets was not being sarcastic when he tweeted the picture along with the question: "Did I just commit hate speech? ".
"The question [posted on Twitter], is not a rhetorical question. Here's a tiny little flag. Is that hate speech? And he gets feedback," Puckrin asked.
He was arguing in the Equality Court, sitting in the Gauteng High Court in Johannesburg, on Wednesday, in an urgent contempt of court application the Nelson Mandela Foundation had lodged against Roets.
The tweet was made just hours after a judgment in August in which the gratuitous display of the flag was declared 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.
Deputy Judge President Phineas Mojapelo said those who displayed the flag aimed to insult others, and were expressing feelings of white supremacy.
On Wednesday, the lobby group and Roets argued that in order for contempt to be proven, it must be shown that there was an interdict granted against them. They argued that an interdict was not specifically granted against them.
Puckrin argued that the matter had nothing to do with AfriForum because Roets tweeted in his personal capacity.
Representing the foundation, advocate Tembeka Ngcukaitobi said Roets' arguments contained technicalities to shift attention away from the issue that he was disrespectful.
30 days imprisonment
When Judge Colin Lamont asked Ngcukaitobi what sanction he would suggest, should the court find against Roets, he replied: "We haven't said what the period of imprisonment is… 30 days would be appropriate..."
"For now, Your Lordship simply has to say that he (Roets) must explain why he shouldn't go to jail."
Speaking outside court, Roets said he was hopeful for a win.
The foundation's Sello Hatang said it presented a strong case in terms of its belief that no one was above the law.
He said if there was a ruling banning the gratuitous display of the flag, it applies to everyone, including AfriForum and Roets.
"The sanction that we have asked for, is for the court to make a determination on what it wants to do. The judge believes for contempt, one should be taken seriously, and if he finds against Mr Roets, then it would be a custodial sentence as it were," he said.
He maintained that they were willing to work with AfriForum to ensure that its supporters understood the pain of black South Africans.
Judgment in the matter has been reserved.
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