THE legal wrangling over the sale in the US of late former president Nelson Mandela's valuable and historical heritage objects worth millions of rands could be heading to the Supreme Court of Appeal (SCA).
The SA Heritage Resources Agency (Sahra), the Robben Island Museum, and the Department of Sports, Arts and Culture have been battling at the North Gauteng High Court, with one of the global icon’s daughters, Dr Makaziwe Mandela, auctioneers Guernsey's, its president and founder Arlan Ettinger, Christo Brand, described as Mandela’s “jailer-turned-friend“, and curator David Parr in a bid to halt the sale of 29 of the 70 heritage objects.
The 29 heritage objects include the key to Mandela’s Robben Island prison cell, which in December 2021 was reportedly expected to be sold for at least $250 000 (about R4.7 million based on this week’s exchange rate).
Parr told the full bench of the high court – Judge Selby Baqwa, acting Judges Vuyani Ngalwana and Rathaga Ramawele – that the key was a replica of the real one and not an official Robben Island prison key.
In December, the high court dismissed with costs Sahra, the Robben Island Museum and the department’s application to interdict the auction of the 29 objects, which was scheduled for January 28 this year but was suspended after engagements with Guernsey's and Makaziwe Mandela.
On March 20, the judges dismissed the two entities and the department’s application for leave to appeal the December ruling.
But the legal battle appears to be far from over, according to the department.
“Sahra, the Robben Island Museum and the Department of Sport, Arts and Culture are in discussions in favour of a petition to the SCA.
“As a result, the matter remains sub judice and further comments are reserved for now. At the right time, consideration for a media statement will be made,” the department told the Sunday Independent.
Among the items that were to be sold are Mandela’s original painting of his Robben Island Prison Lighthouse, a bronze cast of his fist, the famous “Madiba” shirt, identity document, glasses, gifts from former US president Barack Obama and his wife Michelle, ceremonial pens received from another ex-US president George W Bush and the United Nations, among other items.
The auction was expected to raise between $2m (R37m) and $3m (R56m), which would be used to build a memorial garden in honour of democratic South Africa’s first president in Qunu, Mthatha in the Eastern Cape, where he grew up and is buried.
Sahra, the museum, and the department wanted Makaziwe Mandela, Parr and their agents to be interdicted and retrained from causing or allowing any of the Mandela objects in their custody or control to be sold and/or otherwise alienated by or to any third party.
They also wanted Makaziwe Mandela and the curator as well as their agents to take all reasonable and/or necessary steps to ensure that none of the Mandela objects in their custody or control is sold and/or alienated by or to any third party.
In addition, Sahra, the museum and the department and their agents asked the high court to direct Makaziwe Mandela, Parr and their agents to take all reasonable and/or necessary steps to ensure the safe return of all the Mandela objects in their custody or control to South Africa within 30 days of the high court ruling in their favour.
They also wanted to interdict and restrain Makaziwe Mandela, Parr and their agents from causing or allowing all or any of the Mandela objects and/or any other heritage objects in their custody or control to be (re)exported from the country or attempting to do so unless they have permits from Sahra issued in terms of the National Heritage Resources Act.
In their application for leave to appeal, Sahra, the museum and the department argued that their case raised important issues about national heritage.
However, the judges found that the mere fact that a case concerns an important matter of national importance cannot, without more, and by dint only of that fact, entitle a losing party to an appeal.
The judges added that the SCA will simply not be able to see past the poverty of the pleaded case in Sahra, Robben Island Museum and the department’s papers.
They also dismissed Sahra’s claim that the December judgment created uncertainty on the future interpretation of the lists of types of heritage objects.
”There is no clear indication that the Mandela objects fit the mould of heritage objects as envisaged in the National Heritage Resources Act,” reads the leave to appeal judgment.
The judges warned that Sahra, the museum, and the department’s broad sweep of list of types of heritage objects that by dint of strong association with the former statesman would result in absurdity that would render heritage objects of any and every object that is even vaguely related to Mandela or any other significant political figures and leaders in South Africa or objects which have strong or special association with the life or work of a person of importance in the country’s history.
The act lists heritage objects as those recovered from the soil or waters of South Africa, including archaeological and palaeontological objects, meteorites and rare geological specimens, visual art, military and numismatic objects as well as objects of cultural and historical significance.
The list also includes objects to which oral traditions are attached and which are associated with living heritage, those of scientific or technological interest, books, records, documents, photographic positives and negatives, graphic material, film or video or sound recordings, excluding those that are public records in terms of the National Archives of SA Act or in a provincial law pertaining to records or archives.