In a previous article in Daily Maverick titled, “Yes, Mr Roets, you did just commit hate speech”, I took issue with the academic freedom claim by AfriForum deputy CEO Ernst Roets for his gratuitous tweet of the old South African flag. He wanted to know if he had committed hate speech, and I thought so then and still hold a view that he committed hate speech.

I was careful not to address the issue from the perspective of contempt of court because of its possible deficit in meeting the requirements of the common law crime of contempt. This has been confirmed by the Equality Court sitting in the Gauteng High Court in Johannesburg on Tuesday 17 September 2019 when Judge Colin Lamont found no commission of contempt of court. Clearly the second round was won by Roets.

But it is, in my view, a superficial win that should not be celebrated, particularly after the judge said Roets may in due course be held to have breached the provisions of the Equality Court Act. Of course, the judge was following the litany of judicial authority that an order must be ad factum praestandum – that is, an order which called upon a person to perform a certain act or refrain from specified action – for a case of contempt to be made.

Renowned US legal neutralist Professor Frank Easterbrook once expressed a view that there is nothing wrong with criticising things like the “thick-headedness” of the justices, but that such criticism must be done with a lot of thinking and not just for the purposes of mounting a criticism.

At the risk of being accused of unfairly criticising Judge Lamont, I found his outcome very interesting and equally disappointing in part. Interesting because it leaves hanging questions: What did Judge Lamont mean by breach in due course? Did I hear the learned judge implicitly admitting that a hate crime was committed by Mr Roets, but that it will have to be addressed later because the issue before him was not hate crime but contempt of court?

I view it disappointing because the court missed the opportunity to display transformative decision-making when it mattered most. The late former chief justice of the Constitutional Court, Justice Pius Langa, once said that, “Under a transformative Constitution, judges bear the ultimate responsibility to justify their decisions not only by reference to authority, but by reference to ideas and values.”

The so-called Rainbow Nation value was sullied by the uncontextualised and tongue-in-cheek tweet of the apartheid flag by Roets. I found it instructive, for the purpose of this opinion, to cite the late Justice Chukwudifu Oputa of Nigeria. In what resembles the scholarship of transformative constitutionalism by the late Chief Justice Langa of South Africa, Justice Oputa in Aliu Bello V.A.G Oyo State [Aliu Bello V.A.G Oyo State (1986) 5 NWLR (pt. 45)] said that “The spirit of justice does not reside in forms and formalities nor in technicalities nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality.”

For it to be successful in helping South Africa combat racism and associated crimes, the Equality Court, in my view, must be transformative in its adjudication of cases. It would seem that the Equality Court felt constrained by pure interpretative originalism as espoused and supported by neutralists, orientalists and textualists.

To borrow from the late Nigerian, Justice Kayode Eso, in Trans Bridge Co. Ltd V. Survey mt. Ltd [(1986) NWLR (pt. 37) 576], “It would be tragic to reduce judges to a sterile role and make an automation of them. It is the function of judges to keep the law alive, in motion, and to make it progressive for the purpose of arriving at the end of justice.”

The decision of the Equality Court in favour of Roets, particularly with Judge Lamont admitting that Roets may in the future be found to have violated the equality legislation, reflected the common law offence of contempt of court as unprogressively maintained. The danger is that we will see more similar old apartheid tweets under the guise of academic freedom, and not long after, counter-tweets will sprout.

National cohesion and academic freedom were not done a favour by the Equality Court. DM