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Chicken ad not offensive, says lawyer

Chicken Licken fights ban of advert after a viewer's complaint that it mocked African people.
Chicken Licken fights ban of advert after a viewer's complaint that it mocked African people.

Even if the Chicken Licken advert was offensive, regulators should allow it to air in a democratic, open and tolerant society.

This is the latest argument in the protracted legal battle to have the controversial "colonialism" advert unbanned.

Advocate Phumlani Ngcobo argued this on behalf of Chicken Licken and its advertising agency, Joe Public, in their third bid on Friday to have the ban reversed.

In the advert, a Zulu man, Big Mjohnana, sets off in 1651 on a "fantastical" journey and lands in a new country with a man looking like Jan van Riebeeck. Big Mjohnana names the place Europe.

The Advertising Regulatory Board (ARB) withdrew the advert in December after a single complainant, Sandile Cele, said it made a mockery of the struggles of African people against colonialism.

The first appeal panel at the ARB upheld the ban.

Industry players said the restriction had ruffled feathers in the advertising sector and Joe Public founder Pepe Marais said too much restriction "will take the essence out of the ad industry".

Ngcobo argued in the second appeal before Judge Bernard Ngoepe and three industry experts that the advertisement is not offensive.

"Even if it is offensive, to borrow the language of the Constitutional Court, it is the kind of offence in an open and democratic society such as ours . that ought to be tolerated."

He said the advert did not cause harm, was clearly satirical, exaggerated and fictional.

The advertising self-regulatory legal code allows satire and exaggeration.

Ngoepe asked if certain horrific crimes in history could be the work of satire.

The advocate said even horrific crimes could be satirised if done in the appropriate manner, which did not emotionally "injure" people.

"What is important is the specific context and the way it is done."

He said when debating whether or not colonialism could be satirised, one had to take note of the tone and style of the Chicken Licken advert.

"What ought to hold sway are the particular facts of this case.

"It was done with sensitivity. It is intended to be humorous and is received by a body of diverse audiences... No reasonable person here ought to find events in the way they are satirised... off the table."

Ngcobo used market research, conducted on the 193 people after the ban, that showed most people found it funny or were indifferent to it.

He also quoted social media and radio interview comments to reveal many found the advert acceptable.

"I love this advert. I am black and it doesn't offend me," read one comment on social media. Cele, argued in writing that he was taught in school that SA only "began" in 1652 when colonisers landed.

"It is evidently impossible that any indigenous African or proudly South African will find this advertisement empowering and even humorous when taken in its context," the complainant said in his written argument to the appeal board.

Ngcobo said: "Mr Cele says that advertisement makes a mockery of the awfulness of colonialisation. He is wrong, the advertising does no such thing."

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