Laws and authorities
June 2006 / September 2014

Legal aspects

Dept of Justice - Law Society of the Cape of Good Hope - .......

THIS is a compilation – by a layman, not a lawyer – of information about South African laws concerning heraldry.

On this page you'll find notes about the right to bear arms, 'bucket shops', legal protection, and heraldry legislation. There are separate pages about heraldry authorities, and British grants of arms to South Africans.

Right to bear arms

Under Roman-Dutch law, as applied in South Africa since 1652, every person and organisation, regardless of status, enjoys the right to identify him / her / itself by means of a coat of arms.

A new coat of arms can be established by assumption or by obtaining a grant from a competent authority.

The right to bear an existing coat of arms may be acquired by inheritance or transfer, or by royal licence or by confirmation. It cannot be acquired by taking the arms out of a book or off a website, or by buying a copy of them from a 'bucket shop'.

Assumption To quote the Bureau of Heraldry : anyone "may simply adopt any unique or distinctive coat of arms," as long as they do not resemble any existing arms.

Assumption is the usual method of establishing new arms in South Africa. This is in contrast to English and Scottish laws, which require arms to be officially granted or recognised, and restrict grants to "eminent" or "virtuous and well-deserving" ladies and gentlemen, and suitably important institutions.

The right to assume arms was confirmed in the 1350s by the Italian authority on Roman law, Bartolo de Saxeferrato, in Tractatus de insigniis et armis ('Treatise on Insignia and Arms'). Its application in the Netherlands was confirmed by the Dutch jurist Hugo de Groot in Inleiding tot de Hollandsche rechts-geleerdheid ('Introduction to Dutch Jurisprudence') in 1631.

Some granted arms : Johann Kirsten (1767) - Cape Town (1804) - Orange Free State (1856) - David Tennant (1872) - xxxxx - State Archives (1965).

Grant South Africans are free to obtain grants of arms from heraldry authorities in other countries, if they wish, instead of assuming arms on their own authority. The grants do not enjoy any special status or protection in South Africa.

There are known examples of grants from the Holy Roman Emperor (in 1767); the Batavian Republic (1804); the English, Scottish, and Irish authorities (1837- ), and the king of the Netherlands (1856). You'll find a list of grantees of British arms here.

The only time that South African authorities were empowered to make grants of arms was from 1963 to 1969, when the Heraldry Act authorised the state president to grant coats of arms to official bodies, and the provincial administrators to grant them to municipalities. These authorisations to grant arms were withdrawn when the Act was amended in 1969.

Inheritance By centuries-old custom, a man's coat of arms, whether assumed, granted or inherited, is automatically transmitted to his children (including adopted children) as long as they bear his surname. There does not appear to be any way that he can heraldically disinherit anyone. Until fairly recently, there were restrictions on the way in which a woman could transmit arms to her children, but these no longer apply in South Africa.

Personal arms can rightfully be inherited only by proven descendants and heirs (including adopted children) of their original owners. They are not available to other people who simply happen to have the same surname. Genealogical research is therefore needed, to (a) identify the original lawful owner of the coat of arms, and (b) prove lawful descent from him/her. According to the Bureau of Heraldry, "few people have sufficient proof to lay a claim of inheritance on an existing / historical coat of arms."

Transfer There are many examples of impersonal cost of arms being transferred from one organisation to another. The arms of the pre-1910 colonies and republics, for instance, were taken over by the provincial administrations after Union, even though the provinces were not their legal successors.

Several new divisional councils which were formed in the 1970s by amalgamating existing councils, took over the arms of authorities that they had absorbed. Some of these transfers were registered at the Bureau.

Several municipalities that were created in the 2000 local government reorganisation use the arms of former municipalities which they succeeded, e.g. Naledi municipality uses the former Vryburg municipality's arms.

Royal licence In England, it's possible to bequeath one's coat of arms to someone who is not a descendant, provided that a royal licence is obtained to authorise it, and the arms are recorded at the College of Arms. There are a few late-19th / early-20th-century South African examples of this, and presumably South Africans could still acquire arms from English armigers in this way.

In 1903, the arms of the University of the Cape of Good Hope (now University of SA) were granted under a royal licence, which authorised the inclusion of a royal badge – the white rose of York – in the arms.

Confirmation — In Ireland, someone whose family members has used an assumed coat of arms for at least three consecutive generations over a period of at least 100 years, can have them officially confirmed by the heraldry authority. A few South Africans of Irish origin have obtained such confirmations.

'Bucket shops'

South Africa has not been immune from a heraldic malpractice which is found in many countries : the sale of personal coat of arms on the basis that "these are the arms of the X family, so if your surname is X then this is your coat of arms." The people and firms that peddle these items are known as 'bucket shops' (or as 'wapensmouse' in Afrikaans).

Since 1980, it has been a punishable offence in South Africa to 'furnish' anyone with a representation of a purported 'family coat of arms' unless the Bureau of Heraldry has certified the arms as authentic. Even if the arms are authentic, failure to obtain the certificate is still an offence. The penalties are a fine and / or a year in prison.

Legal protection

Under South African common law (according to Prof W.A. Joubert's Die Grondslae van die Persoonlikheidsreg ('The Fundamentals of Personality Law') (1953)), a person's coat of arms and seal form part of his legal 'dignitas'. If someone misuses his arms, he can take 'actio injuriarum' and sue for an interdict and / or damages.

Since 1935, various laws have made it possible for people and organisations to register their coats of arms. The owner's remedies in the event of someone else misusing his arms are still an interdict and / or damages, but he now has an official registration certificate on which to base his case. In the case of national, provincial and municipal arms, offenders can also be prosecuted under the Heraldry Act, and fined.

Legislation and registration

A number of national and provincial alws have been passed over the past century to protect coats of arms against unauthorised use. Some provide for voluntary registration of arms to strengthen the owners' protection.

Some coats of arms registered under the PNUBA Some arms registered under the PNUBA : Transvaal Rugby (1936) - Witwatersrand University (1950) - UCT Medical Students Council (1958) - SA Ass'n of Municipal Employees (1962).

1917-63 : the Patents, Designs, Trade Marks and Copyrights Act 1916 prohibited the unauthorised use of the South African national arms or the British royal arms in connection with any patent, design or trademark.

1935-69 : the Protection of Names, Uniforms and Badges Act 1935 (PNUBA) enabled associations and institutions to register their badges – which could include coats of arms – to protect their "sole and exclusive" right to them. Many schools, colleges, sports clubs, and societies made use of this Act.

1941-date : the Merchandise Marks Act 1941 prohibits the use of the national arms or flag in merchandise marks.

Some South African municipal coats of arms First arms gazetted in each province : Pietermaritzburg (1950) - Johannesburg (1951) - Pinelands (1954) - Bloemfontein (1954).

1949-69 : in each province, the local government Ordinances enabled local authorities to protect their "sole and exclusive" right to their coats of arms and seals by publishing them in their provinces' Official Gazettes. This system was in operation in all four provinces : Natal (1949-69), Transvaal (1951-69), Orange Free State (1953-69), and Cape (1953-69).

1958-2003 : the Defence Act 1957 made it an offence to wear defence force "distinctive marks or crests" without authority.

1961-date : the Unauthorised Use of Emblems Act 1961 confirms that the use of official emblems which had been prohibited while the country was a monarchy, remains prohibited.

1963-date : the Heraldry Act 1962 established the Bureau of Heraldry, the office of State Herald, the Register of Heraldic Representations, and the Heraldry Council. It enables corporate bodies, local authorities, official bodies, and private individuals, to register their 'heraldic representations' (i.e. coats of arms, badges, seals, or flags) at the Bureau.

The Act has been amended several times, principally in 1969, 1980 and 1982. A copy of the Act is available here. Details of arms registered up to 2006 (excluding defence force insignia) are available on the Bureau of Heraldry Database on the National Archives website.

1964-95 : the Trademarks Act 1963 allowed the authorities to refuse to register trademarks containing the national arms or flag.

1995-date : the Trademarks Act 1993 prohibits the unauthorised use of the national arms or flags in registered trademarks.

2002-date : the Defence Act 2002 prohibits the unauthorised wearing or use of the defence force's "distinctive marks or crests".

References :
  • Anema, J.T.; 'Registratie, handel en kopersbedrog in de heraldiek' on the Centraal Bureau voor Genealogie website.
  • Anon.; 'Bogus crests hawked about Union' in Cape Argus (20 September 1947).
  • Brownell, H.M.; The Origins and Development of the South African Law of Heraldry (LlB Thesis - UP) (1993).
  • Bureau of Heraldry Database.
  • Bureau of Heraldry; General Information and Instructions to Applicants (n.d.); South African Armorial Vols I - IX (1986- ) ; Names, Uniforms and Badges Vols I-IV (1991).
  • Dept of Arts & Culture; Review of Heritage Legislation (Final Report) Vol 1 (2009).
  • Government Gazette 2304A (1 Nov 1935).
  • Hobbs, H.M.; 'Lion, Lyon or Leeuw?' in Responsa Meridiana (Aug 1977).
  • Joubert, W.A.; Die Grondslae van die Persoonlikheidsreg (1953).
  • MacLysaght, E.; Irish Families (1957).
  • Pretorius, C.J.; 'Heraldry' in The Law of SA: First Re-Issue Vol 10 Pt 2 (1997).
  • University of SA; Royal Charter, Royal Licence etc (1957)..
  • Defence Acts 1957 and 2002.
  • Divisional Councils Amendment Ordinance 1960 (Cape).
  • Heraldry Act 1962, as amended.
  • Local Government Amendment Ordinance 1949 (Natal).
  • Local Government Amendment Ordinance 1951 (Transvaal).
  • Local Government Amendment Ordinance 1953 (OFS).
  • Local Government Ordinance 1962 (OFS).
  • Merchandise Marks Act 1941.
  • Municipal Amendment Ordinance 1953 (Cape).
  • Patents, Designs, Trade Marks & Copyrights Act 1916.
  • Protection of Names, Uniforms & Badges Act 1935.
  • Trademarks Acts 1963 and 1993.
  • Unauthorised Use of Emblems Act 1961.

This website has been created for interest and entertainment. It is unofficial and not connected with, or endorsed by, any authority or organisation. It is the product of the webmaster's research, and the content is his copyright. So are the illustrations on this page, unless stated otherwise. Additional information, and correction of errors, will be welcome.
 
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