Tuesday, 8 June 2010

Flagitis

Flagitis is condition that you will almost certainly be exposed to if you are visiting South Africa over the next two months. You are most likely to catch the bug at airports, street corners, shops and in pubs. Most businesses are already affected and wing mirrors are normally a tell tale sign of condition-carrying vehicles. It is highly contagious but is it lawful? With the help of research by Janine Thomas, Afro Leo looks at the legislation in South Africa surrounding the use of national flags:


The South African flag is registered as a “heraldic representation” with
the Bureau of Heraldry, which is established in terms of the Heraldry Act 18 of 1962 (the Heraldry Act). This Act expressly prohibits the misuse of heraldic representations. A heraldic representation includes the national flag, coat of arms, or a badge (which is further defined as including any symbolic representation, used by an association, institution or as a mark of recognition or distinguishing token). Misuse, very broadly, is defined to include, without permission of the State Herald, using for gain, selling, or trading in the heraldic representation.

The Merchandise Marks Act provides that:

Section 14(1A):

‘No person may use a mark or trade mark which consists of or contains the national flag of a convention country, or an
imitation from a heraldic point of view, without authorisation of the competent authority of the convention country or without being in possession of an authorization in writing signed by or on behalf of the Minister’

It is interesting that this section covers both use of a flag as a "mark" or as a "trade mark". The term "mark" is very broadly defined in the Trade Marks Act.

Section 14 (1B):

“No person may use a mark or trade mark which consists of or contains the armorial bearings or any other state emblem, of the Republic or a convention country, or an imitation from a heraldic point of view, without authorization of the competent authority of the Republic or convention country, as the case may be”

This section deals with use of state emblems and specifically makes reference to use of state emblems of the Republic of South Africa. While the Merchandise Marks Act does not define “state emblems”, the Department of Trade and Industry, in terms of its policy on the Use of State Emblems issued in January 2004, provides that “state emblems include national flags”. The policy states that the Minister must approve the use of state emblems.

Section 15(1):

The Minister may, after such investigation as he or she may think fit, by notice in the Gazette, prohibit either absolutely or conditionally the use of-


(a) the National Flag, or any former National Flag, of the Republic; or
(b) any mark, word, letter or figure or any arrangement or combination

thereof, in connection with any trade, business, profession, occupation or event, or in connection with a trade mark, mark or trade description applied to goods.

As far as Afro Leo is aware, to date, no prohibition has been placed on the use of the national flag in terms of this section.

Government Gazette Notice no.22356 of June 2001 regulates the manner in which the flag is to be used and states for example that must not be used as a tablecloth or to start or finish a race or competition. This notice requires in essence that the flag must be treated with dignity and respect.


Section 10(7) (a) of the Trade Marks Act of 1993 prohibits the registration of a mark:

“which consists of or contains the national flag of the Republic or a convention country, or an imitation from a heraldic point of view, without the authorization of a the competent authority of the Republic or convention country, as the case may be, unless it appears to the Registrar that the use of the flag in the manner proposed is permitted without such authorization”

A “competent authority” is not defined in the Act.

As intimated above flags are in widespread commercial use in all sorts of ways. It is very unlikely that authority (where required) has been granted and, to be fair, it is not even clear who to ask. Moreover, to the best of Afro Leo's knowledge, there has never been a prosecution of anyone for using (or even misusing) a national flag. Afro Leo concludes therefore that Flagitis is contagious, often unlawful but too enjoyable to stop.

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