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By Michelle Jones and Quinton Mtyala
A UCT student has been arrested, had his house searched and been questioned about his political affiliations after gesturing at President Jacob Zuma's convoy of vehicles.
Police officers have claimed he pointed his middle finger at vehicles in the convoy and tried to resist arrest.
But 25-year-old sociology student Chumani Maxwele, a card-carrying ANC member, has since denied these allegations, claiming he merely waved the vehicles away because of excessive noise.
A constitutional law expert has said that anyone may shout, swear or point a middle finger if he or she wished to do so - even at the president.
Police sources told the Cape Times Maxwele had been charged with crimen injuria, but the case would not be prosecuted. Police Ministry spokesman Zwele Mnisi could not confirm this.
Last Wednesday about 6pm, Maxwele had been jogging when a blue-light convoy of six government cars, with Zuma inside one of them, drove past him. About five minutes later, the convoy passed joggers on the left of the M3 highway and slowed because of heavy traffic, Mnisi said.
He said as the convoy passed the joggers, Maxwele pointed his middle finger at Zuma. Mnisi called this gesture "synonymous with swearing and showing disrespect".
"When police stopped to question him about his actions, he then became aggressive and began to swear at them. They then arrested him and charged him with crimen injuria and resisting arrest."
Maxwele said he was pushed into a car, shouted at and had a bag pulled over his head. He said he was "destroyed" because the arrest could affect his employment or travel opportunities, and he would consult lawyers about what action he could take.
Maxwele was taken first to Rondebosch, then to the Mowbray police station and later to holding cells at the Wynberg Magistrate's Court. He said while he was in custody for 24 hours in the cells, his house was searched by police officers and his belongings and notebooks were rifled through.
Maxwele, who is an active member of the ANC's Cissie Gool branch in Woodstock, was also questioned about his political affiliations and feelings about Zuma.
On his Facebook page, Maxwele wrote about himself: "Activism for my community, that is what keeps me going."
Richard Calland, associate professor of constitutional law at UCT, said showing the middle finger was a legitimate, albeit flimsy, and inarticulate way of expressing protest. "What Zuma's bodyguards did was a failure to recognise that he (Maxwele) had the freedom of expression," said Calland.
Of concern, he said, was that the arrest showed that there was a very short step to outlawing legitimate protest.
"Politically, it's foolish for Zuma's guards to have done this, it shows that Zuma is insecure. If they had ignored him, then no one would have known about it," Calland said.
Constitutional law expert Pierre de Vos said yesterday he doubted that insulting the president "would ever constitute crimen injuria". He described crimen injuria as the criminal defamation of another person by saying something without a defence for what had been said.
"The president is subject to the same laws as anyone else. The president is not more important merely because he happens to be in that position."
Asked whether it was legal for one person to show another the middle finger, De Vos said: "Yes, it would be completely legal. You would have been rude. It might show a lack of respect. You would not have defamed me, at best you would have been rude.
"If showing a middle finger was a criminal offence, half of South Africa would find themselves in prison."
But Mnisi said: "In terms of the law, no person is permitted to use foul language, swear at another individual, especially as such conduct may lead to promoting hate conduct in the Republic. Again, resisting arrest by police is also a punishable offence. That is the bottom line."
When asked which law he was referring to, Mnisi said he was not aware of the "specific act" and added "morally, you just can't swear at people".
De Vos said Zuma should not be treated differently to anyone else.
Said Mnisi: "It needs to be understood that police have a duty to safeguard all citizens of the Republic, and anyone who poses danger or becomes unruly will face the full might of the law. In this case, the individual's conduct and his aggression towards the police is unacceptable and will not be tolerated."
Mnisi dismissed claims that Maxwele's house had been raided by members of the National Intelligence Agency.
"We further need to clarify that the matter was handled solely by the police, as it forms part of our mandate of protecting all VIPs."
Presidency spokesperson Vincent Magwenya referred all queries to the Police Ministry as police officers had "arrested the person, not the Presidency".