Old flag still legal

2009-12-09 22:18

Durban - The old South African flag was never banned, and the display of it is protected under the right to freedom of speech.

This was the reaction of Constitutional experts on Wednesday, after Bheki Cele, national chief of police, gave an order on Tuesday for a small old South African flag to be removed from a junior Metrorail manager's office in Durban.

Cele gave this order after Police Minister Nathi Mthethwa noticed it by chance in the woman's office.

Both Marinus Wiechers, who was part of the team who compiled the Constitution, and Pierre de Vos, a  Constitution expert from the University of Cape Town, said the right to freedom of speech means people may still display the old flag.

In 1996 particularly, the display of old flags at rugby matches caused controversy and the South African rugby authorities expressed their disapproval, but it was never forbidden at stadiums.

Flag not forbidden

The old flag was never forbidden by any law and even if someone wanted to do so, it would be unconstitutional, said De Vos and Wiechers.

"Many people would say it (the old flag) is an eyesore. But freedom of speech also means that we must accept points of view we find appalling," said De Vos.

According to Wiechers, only hate speech and defamation are not protected under freedom of speech.

He feels it's a gross and insensitive abuse of power on Cele's part to give the order for the flag to be removed, without even discussing the matter with the woman.

Metrorail policy

De Vos said it is possible that individual establishments can make rules regarding what they will allow in the workplace, as long as these are clearly defined.

For instance, it would be defensible if someone who works with the public or represents the state in some or other capacity was forbidden to display an old South African flag in their office.

"But in your personal capacity you are free to hoist the old South African flag in front of your own house," he said.

Thandi Mkhize, Metrorail spokesperson, said the establishment's policy states that no party-political flags or T-shirts or national flags which are no longer in use may be displayed in their offices.