The Nelson Mandela Foundation has filed an application to appeal the Equality Court's ruling which found Ernst Roets not guilty of hate speech. File picture: Ayanda Ndamane/African News Agency (ANA)

Johannesburg - The Nelson Mandela Foundation has filed an application to appeal the Equality Court's ruling which found AfriForum's chief executive Ernst Roets not guilty of hate speech for tweeting an image of the apartheid flag. 

Last month, Roets tweeted the old apartheid flag mere hours after the equality sitting at the South Gauteng High court had declared that the gratuitous display of the flag amounts to hate speech. 

In its papers, the Mandela foundation said the court erred in its decision of not finding Roets and AfriForum in contempt of court. 

"The court should have found that the applicant presented prima facie proof that the respondent had committed contempt of court, sufficient to find that they had a case to answer, and should consequently have issued a rule nisi to enable that case to be answered appropriately," read the papers. 

The dispute between the foundation and lobby group, arose after the foundation brought an application to the Equality Court seeking an order declaring that gratuitous displays of the old flag constitutes hate speech and discrimination based on race. 

During his ruling, deputy Judge President Phineas Mojapelo declared that the gratuitous display of the flag constituted hate speech, is unfair discrimination and is equal to harassment. 

Mojapelo said the flag could be used for artistic, academic and journalistic expression in the public interest. 

After tweeting the flag, the foundation said Roets had insulted the courts and was acting in provocation with his actions. 

Roets dismissed suggestions that he disrespected the judgment, insisting that the court said that the flag could be used for artistic, journalistic and academic purposes. 

On Tuesday, Judge Colin Lamont said, while he was of the view that Roets may in due course be held to have breached the provisions of the Equality Court Act, he was not in contempt of court. 

He said Roet's actions don't constitute contempt of court, because for contempt, there must be a court order instructing someone to do something. 

Lamont said judge Mojapelo made a declaratory order. 

African News Agency (ANA)