Assets including Nelson Mandela’s iconic floral shirt, a pen given to him by former US President George W Bush and a broken prison key found at Robben Island can now be auctioned after the latest unsuccessful attempt by the SA Heritage Resources Agency (Sahra) to block the sale.
On Thursday, a full bench of the Supreme Court of Appeal (SCA), with four of the five judges concurring, ruled that the state had failed to prove the items in possession of Madiba’s eldest daughter and her father’s former prison warden, Christo Brand, were protected heritage resources.
Dr Makaziwe Mandela had aimed to auction the late former statesman’s personal items primarily to fund the construction of a memorial garden in Qunu, where her father grew up and is buried.
After failing in their initial court action to indefinitely cancel the planned online auction by New York-based Guernsey Auction House, Sahra, the Robben Island Museum and the department of sport, arts and culture turned to the SCA on appeal.
On Thursday, the court upheld the Pretoria high court’s ruling and dismissed the appeal with costs, with the ruling celebrated by Makaziwe’s predominantly Gqeberha-based legal team.
The court found that Makaziwe and Brand, in terms of the constitution, had the right not to be deprived of their property or how they wished to dispose of it.
Some of the more notable items owned by Makaziwe include a signed photograph taken at the Rivonia trial, an original charcoal drawing by Mandela, a US Mint President Mandela Coin, gifts from various former presidents, his fist sculpted in bronze, and his Ray-Ban Aviator sunglasses.
The assets owned by Brand, who became friends with Mandela while at Robben Island, include a key found at Robben Island Prison and a signed copy of SA’s 1996 constitution.
Sahra failed to establish that the assets owned by Dr Mandela and Mr Brand are heritage objects
— Judgment
According to the lengthy judgment, Sahra had failed to establish that the items met the legal requirements to be classified as heritage objects under the National Heritage Resources Act.
The appeal stemmed from an attempt by Sahra, the Robben Island Museum and the sport, arts and culture department to prevent “The Nelson Mandela Auction”, initially scheduled for January 2022.
Sahra had argued that anything connected to Madiba was deemed a heritage object and that it could impose restraints on the exportation and sale of any of these objects.
It also relied on the argument that these items were related to a significant historical figure and events.
However, the court ruled that the agency’s interpretation of the law was overly broad and created legal uncertainty.
“Sahra failed to establish that the assets owned by Dr Mandela and Mr Brand are heritage objects,” the judgment reads, adding that it was not enough to rely on general associations with Mandela without showing, item by item, why each object had cultural or historical significance as defined in law.
The court further stressed that the Heritage Act restricted the export of declared heritage objects, but did not prohibit the private ownership, sale or movement of such items within the country.
It also warned Sahra’s approach risked infringing on constitutional property rights without clear legal standards.
According to court papers, in 1979, Brand was stationed as a prison warder at Robben Island at a time when Mandela had already been incarcerated there for about 15 years.
In an office desk drawer he found a key broken in two.
He took the two pieces with him when he was transferred to Pollsmoor Prison in 1982.
Brand, according to his version, was advised that the key was not an “official” Robben Island prison key, and that it was possibly forged by another warder or inmate and thus probably confiscated and destroyed.
At no point did Brand try to use it on Mandela’s cell door.
The actual key to Mandela’s prison cell was in possession of the Robben Island Museum, the court heard.
After Mandela was released from prison and had become the first democratically elected president of SA, he arranged for Brand to work in his office and thereafter at the Constitutional Assembly Document Centre.
During that time Mandela gave Brand a copy of the 1996 constitution, which he signed along with a personal message to Brand’s family.
The application was based largely on speculation
— Judgment
The court accepted Brand’s version that the key was not Mandela’s actual cell key and had never been used on the former president’s prison cell.
The SCA concluded that Sahra, as an organ of state with significant resources, had failed to properly plead and prove its case.
“The application was based largely on speculation,” the judgment reads.
After the judgment, Makaziwe said: “We are very happy about the outcome of this case.
“Notwithstanding that, we had an amazing and experienced legal team in Wesley Hayes and advocate David Smith, who really understood the intricacies of the law as it pertains to what constitutes heritage assets.
“I feel that we have been vindicated in many ways.
“My responsibility and duty as Nelson Mandela’s eldest daughter, as it has always been, is to continue managing my father’s legacy and that is my only concern.”
Hayes said his team was “over the moon to have won this important matter”.
If Sahra chooses to appeal against the judgment, the only recourse now available is to petition the Constitutional Court.
The Herald
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.