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No law prohibiting burning of the national flag, says analysts

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By Johnathan Paoli and Phuti Mosomane

Despite the huge controversy that has erupted after the Democratic Alliance (DA) released an advert that shows the burning of the South African national flag, analysts have agreed no law has been broken.

In exclusive interviews with Inside Politics on Wednesday, political analyst Levy Ndou and
former National Prosecuting Authority (NPA) director advocate Menzi Simelane have both said the issue surrounding the dramatic advert – that has caused a storm on social media – centres around moral and ethical values – not legal ones.

But, Ndou said, it has appeared that as an electoral strategy, the advert “had backfired”, and had instead created a situation in which the opposition party is now concentrating on responding to criticism rather than focusing on their election campaign.

Ndou said the DA did not appreciate the extent of what the symbol of the burning flag

“When you burn a flag, some people actually feel that you’re burning them alive, it creates a situation where some would not easily feel comfortable when they see such burning. It also reminds us of the pain of our past,” Ndou said.

Ndou said that the depiction of a burning national flag burning fell within the ambit of ethical conduct and morals, rather than any the contravention of a legal rule or principle.
Legal analyst Simelane agreed.

While the act is offensive and morally insensitive, some people have described it as “tantamount to treason”, it could never be viewed as treasonous in the context of a potential legal prosecution, he said.

He said that according to the National Key Points Act, a key point identified by the government such as a cultural memorial or a cemetery, is legally protected and prohibited from being vandalised or destroyed.

The flag is not a key point and is not legally protected from destruction.

“There is a difference. You cannot go to a grave and start desecrating it, because there is a law against it. But with a flag, there is no law that says you cannot burn a flag, you cannot tear a flag,” Simelane said.

In response to the recent announcement of the Sports Minister Zizi Kodwa that he is considering possible legal action against the DA, Simelane said this is just an indication of the minister considering his options.

“I think he’s trying to see what he can do about it, but there’s nothing. Things like burning a flag, pissing on a flag or putting it on the ground and stomping on it, even in other countries, is not generally considered a crime. It’s offensive, but it is not generally considered a crime,” Simelane said.

The former NPA advocate said that treason is specifically defined in law as an act of betraying your country to others, and did not include conduct, which could be argued was included in freedom of expression and speech.

“Burning your own flag, can never be defined as treason,” he said.

This came after President Cyril Ramaphosa condemned the advert and said it undermined the principles of democracy and unity. Ramaphosa called on all political parties to uphold the dignity of all national symbols and to conduct themselves in ways that foster unity and progress for all.

On the other hand, the DA has defended its actions and said that the advert was specifically designed and selected as the strategy of the party.

DA Federal Council Chairperson Helen Zille said it is the party’s view that the country as well as its economy and democratic institutions would be destroyed under what it has referred to as a “Doomsday Coalition”, that includes the ruling party, Economic Freedom Fighters (EFF),uMkhonto weSizwe (MK) and the Patriotic Alliance (PA).

She said the DA wants to prevent the expected collapse, and therefore issued a warning call to all South Africans.

“Every time the DA has had the guts to tell a hard, inconvenient truth, there have been howls of outrage from the commentariat. Think back to our predictions on cadre deployment, BEE, state capture, the impact of our labour laws. And, of course, “Stop Zuma”. We were vilified every time. We also turned out to be right,” Zille said.


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