THE censorship system of the apartheid era was complex, savagely comprehensive and unwieldy; but full of loopholes. Often it brought fresh meaning to the concept of the absurd: the 1950s customs embargo on Anna Sewell’s book Black Beauty springs to mind. In 1972, when apartheid ideology was at the height of its insanity, the editor of Wits Student was deported and two colleagues were convicted of defamation after publication of an irreverent cartoon. It depicted a small boy peering into a toilet bowl and asking, ‘Excuse me, are you the prime minister?’ An emergency debate was called in the House of Assembly, the Vice-Chancellor of Wits was summoned, and the Minister of Education, Senator van der Spuy, thundered on about filth and subversion. Helen Suzman remarked drily that the parliamentary debate was the ‘latest example of South African idiocy.’
Politicians in authoritarian regimes rarely display a sense of humour and tend to be extremely sensitive to attacks on their self-esteem. Their vulnerability to mockery is a weapon in the hands of democrats as the people of South Africa and eastern Europe found in the late twentieth century. Pieter-Dirk Uys has often remarked that the Pretoria regime provided him with first-rate raw material for his satirical creativity.
Today one of their successors in the pomposity and self-importance ratings seem to be big corporations. Their advertising standards, especially the treatment of language, are often enough to make one wince, and this is a price we have to pay for freedom of expression. But there is a right to reciprocate, so when an outfit calling itself Laugh It Off started parodying well-known trademarks on T-shirts, considerable interest was expressed from those sections of South Africa less inclined to be reverential to big business. The victims included MTN, Shell, Virgin, McDonalds and most memorably Standard Bank whose name and logo were savagely mocked in a fashion that can only be described as extreme bad taste. Popular legend suggests that these shirts were virtually unobtainable because of sales to disaffected bank employees. South African Breweries’ Carling Black Label trade mark was perhaps the best-known victim, largely because SAB was foolish enough to take the humorists to court.
Finally, in the Constitutional Court Judge Dikgang Moseneke sensibly ruled that protection of a trademark has nothing to do with dignity, but is related solely to its selling power. Since the sale of a few irreverent T-shirts could have no proven effect on beer sales, it followed that freedom of expression through parody cannot infringe a company’s trademark rights. Albie Sachs, concurring with Moseneke, made the obvious point that SAB’s relentless pursuit of Laugh It Off had done it considerably more harm than good.
This case is a wonderful illustration of the lack of wisdom displayed by those who seek to restrict the rights of others: they may end up with egg on their faces, or perhaps in this case beer in their moustaches, and very large legal bills. SAB’s response after the Constitutional Court ruling – that the reputation of trademarks is threatened – is not only pathetic, but antipathetic to the free society in which we now live. What will they want next: legislation regulating satire; or a Humour Control Board perhaps? Big business has to accept for itself what is a fact of life for politicians: that if you put yourself persistently in the public eye for the purpose of self-promotion, someone is eventually going to look for a satirical angle.
Although the level of student humour displayed by Laugh It Off seems not to have advanced much further in the lavatorial stakes since 1972, this type of satire often contains important social and political commentary. The ‘Black labour White guilt’ adaptation of the Carling trademark may not be too wide of the mark in the light of articles about SAB’s dubious marketing methods published in the investigative journal Noseweek.
The concept of intellectual property is a valuable one: individuals and institutions are within their rights to protect the creative products of their labours and a resultant reasonable income. Copyright is not a right wing plot as many progressive commentators would like us to believe: it protects everyone. But at the same time, satire and parody are all legitimate vehicles for criticism and consciousness-raising and in free societies they should be protected as judges Moseneke and Sachs have admirably proved in the highest court in the land.
But, just in case we are tempted to become too complacent about our relatively new-found liberty, on the same day that Judge Moseneke struck his blow for freedom the Mail & Guardian was restrained from publishing its follow-up story on the Imvume Oilgate scandal. If this saga of the effective transfer of public money into the ANC’s party coffers is shown to be true, it will constitute one of the worst cases of corruption in recent South African history; and what is more it will have been compounded by a clumsy attempt at cover-up. The paper’s blacked-out page two brought back a nostalgic memory or two for many a 1980s activist, but also a sobering reminder that the current establishment behaves in ways uncannily reminiscent of its apartheid predecessor. The common denominator in the cases of both Laugh It Off and Oilgate is corporate South Africa. The increasingly sinister role of crony capitalism and the threat it poses to our young and fragile democracy may be a great deal more difficult to counter than the outraged sensibilities of a few beer salesmen.
This article was first published in The Witness on 28 June 2005 and entitled ‘Laugh it off’.