AfriForum was on Friday denied leave to appeal Deputy Judge President Phineas Mojapelo’s ruling that the gratuitous display of the apartheid-era flag amounts to hate speech.
The Nelson Mandela Foundation (NMF) and South African Human Rights Commission (SAHRC) took the case to court, asking that the gratuitous display of the flag be stopped.
The application seeking leave to appeal was heard in the Equality Court, sitting in the Gauteng High Court in Johannesburg on Friday.
Advocate Mark Oppenheimer, appearing for AfriForum, argued that there was a reasonable prospect of success that a different court will come to a different decision, based on a number of reasons, including the right to privacy.
He added the fact that the ruling was binding on all South Africans meant there was a compelling reason why the matter should be heard by a different court.
Advocate Ben Winks, for NMF, argued they did not believe that there was any reason another court would come to a different decision, but said leave to appeal should be granted if there were “compelling reasons”.
One of the compelling reasons held was that the finding was not necessarily binding in provinces other than Gauteng, where the ruling was made. A declaratory order in terms of what constituted hate speech was needed, it was argued.
Mojapelo did not agree with either party, saying an order made by the court applied nationally.
The NMF agreed with the judge, saying it had been persuaded by Mojapelo’s reasoning.
It argued, however, that the case was of national importance and should go on appeal.
The SAHRC’s representative, advocate Itumeleng Phalane, said she would oppose the application for leave to appeal the court’s decision.
The NMF also filed an application this week to appeal the ruling by the Equality Court in favour of AfriForum’s Ernst Roets and his display of the old South African flag.
The leave to appeal includes an application for direct access to the Constitutional Court, NMF spokesperson Luzuko Koti said in a statement on Tuesday.
“Gratuitous displays of the old flag express a desire for black people to be relegated to labour reserves, a pining for the killing, the torture, the abductions, a melancholia for the discrimination, the death squads, the curfews and the horrific atrocities committed under the flag.”
He added: “The right to freedom of expression is widely protected in our law. However, it does not protect the right to hate speech and does not trump the right to human dignity. That is so because of our history – which is a painful one.”
Earlier, the Equality Court, sitting in the Gauteng High Court in Johannesburg, ruled that while Roets might in due course be held to have breached the provisions of the Equality Court Act, he was not in contempt of court, News24 reported.
While handing down judgment, Judge Colin Lamont said: “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. ”
Last month, Roets tweeted a picture of the apartheid flag hours after the same court had declared the gratuitous display of the flag was hate speech.
His tweet caused outrage on the social media platform, and prompted the NMF to take him to court for contempt of court.
More to follow.