Initially, the advertising regulatory board ruled colonialism was not something to be laughed at.
This was upheld by the first appeal board chaired by advocate Gcina Malindi SC.
The second and final appeal ruling given by Ngoepe uses a different reason to keep the advert banned.
He did not make a ruling that colonialism was a “no-go area” but found the advert offensive and in breach of the advertising code.
He ruled: “Much as we do not make a ruling that colonisation is a no-go area for parody, there is one particular problem with the advertisement [which is not parody on colonisation in general, but of South Africa in particular]; it is a point on which this appeal must fail.”
He said the parody was offensive because it distorted colonialism.
He said the advert was offensive because it left out “the negative effects of colonisation [for example, the undeniable sufferings it brought] or any reference to them, thereby presenting it as something harmless. This is insensitive and offensive to those who suffered under colonisation.”
Pepe Marais, founder of advertising agency Joe Public, had argued the advert was not about colonialism and their market research had found almost nobody found the advert offensive.
In the first appeal Marais said, “By definition, the commercial is 60 seconds. Ninety percent of the 60 seconds shows Big Mjohnana travelling, doing amazing things, feeding a panther on an island, fighting with a jellyfish. It is completely like a fantasy land.”
But all three rulings against the advert found it was about colonialism.
Cele, who laid the complaint, has not spoken in public about the controversy and has not been reachable for comment.
Ngoepe said that the constitutional right to freedom of speech also had limits. “All constitutional rights, save for the right to life, have limitations and corresponding obligations. The right to use parody in freedom of commercial speech cannot be separated from a duty of care to ensure that the exercise of that right does not offend or cause harm to others.”