Lawyer wants court to declare DA’s advert unlawful and unconstitutional

A human rights lawyer has lodged an urgent application to the North Gauteng High Court to declare the DA’s controversial advertisement of the burning of the South African flag unlawful and unconstitutional.

This after lawyer for Black People, Zuko Madikane, dragged the DA to the high court over its election campaign advertisement depicting, in a graphic form, the country’s national flag being consumed by flames.

Madikane also wants the court to declare this as an incitement of violence.

Madikane said it should be declared a gross violation of sections 10(1) and 7 of the Promotion Equality and Prevention of Unfair Discrimination Act 4 of 2000.

He said it disseminates hate speech and unfairly discriminates against ANC, EFF and black people, particularly those who associate their votes with such political parties mentioned in the advertisement.

Madikane said the advert should be banned from all public media platforms including television, radio, Twitter and other related means of communication from the date of the grant of the court order, unless amended.

Asked if the party was aware of the application, DA leader John Steenhuisen spokesperson, Charity McCord, referred questions to deputy national campaign manager Ashor Sarupen who did not respond to the issue at hand. Sarupen said Madikane was not a recognised lawyer and was declared bogus.

In response Madikane said the DA failed to understand that the case is before the court and will be adjudicated on Tuesday. He added that the cases they are referring to are before the South Gauteng High Court for appeal.

“They have not filed papers and it is ok the case will proceed unopposed,” he said.

The advert, which was launched last week, sparked anger among South African citizens and leaders who accused the party of desecrating the flag to highlight the challenges faced by the country.

Others called on the party to withdraw the advert, saying the DA had responsibility beyond winning elections.

President Cyril Ramaphosa also joined the fray, describing the advert as treasonous and said it was unacceptable.

Sport, Arts and Culture Minister Zizi Kodwa said he was considering taking action against the DA over the advert.

Kodwa, who called the advert “abhorrent and unpatriotic”, said he had also instructed his advisors and the department’s legal unit to advise him on the steps he could take urgently.

Small Business Development Minister Stella Ndabeni-Abrahams said that “our” flag burning was wrong.

She said, ”This insults our national symbol and undermines the nation's unity and pride.“

The South African Broadcasting Corporation (SABC) also rejected the advert. In its letter to the Independent Communications Authority of SA (Icasa), the SABC said the advert encouraged desecration of treasured national symbols, adding that the national flag should be accorded with dignity and respect.

However, Steenhuisen said the advert symbolised how the South African flag, its constitution, and its future would burn to ashes if voters sat back and allowed the ANC, EFF, and other “destructive populists” to seize power.

In his affidavit, Madikane said the display of a burning flag in the advert and the message contained therein were tantamount to hate speech in terms of section 10(1) of the Equality Act.

He said it also amounted to unfair discrimination on the basis of race in terms of section 7 of the Equality Act.

He added that to suggest that those who voted for the ANC or any other black-associated party were destroying the country was discriminatory and completely derogatory.

“The depiction of the burning flag, as a result, suggests that such persons cannot make correct political decisions, and that insinuation on its own is a direct violation of human integrity and freedom and freedom to elect a government of choice, as contemplated in section 19(1) of the Constitution,” read the affidavits.

“On this basis, the applicant seeks an order declaring the advert as unlawful and unconstitutional. It further seeks to complete banning of the broadcast of the advert on all national platforms such as television, radio, Twitter, WhatsApp and any other relation streams of communication within the Republic of South Africa.

“Moreso, the applicant seeks an order declaring the depicting of a burning flag, by the DA, as an incitement of violence which among others constitutes hate speech, unless amended.

“The advert does not only depict a picture of a burning national flag but stated that “the country is burning and will continue to burn more under the ANC and EFF, and all the other relevant political parties are allowed or voted to take over.”

Madikane said this statement was inconsistent with sections 1(a) and (c) of the Constitution, as directly undermines the will of the people to elect a government of their own.

He said this further placed all persons who would vote for the ANC and EFF in the category that is not catered for in “our” Constitution.

“This undoubtedly indicates that all persons who have constitutional rights to vote for any of the above mentioned parties would have a direct contribution to the burning and destroying of South Africa.”

It was not only a gross misuse of the right to freedom of expression, but a gross violation of their section 19(1) (b) and (c) rights of those purported voters,” said Madikane.

He said such conduct should not be tolerated as it was unequivocally clear that the DA’s actions constituted hate speech and that there was a direct link to cause harm and propagate violence eventually.

Madikane added that it was clear that the DA was disseminating a message that was propaganda, and the idea that does not exist at all with the intention to gain an unfair advantage over competing political parties, especially in the current scenario and its primary enemies - the ANC and EFF.

He said such conduct cannot be right as it violates the very same basis of free and fair elections that the DA desires to win through unwarranted social manipulation.

manyane.manyane@inl.co.za