The fight over possession of late former president Nelson Mandela’s assets appears to be far from over as lawyers for the state have their eyes firmly set on the Constitutional Court.
In a legal letter seen by The Herald, Johannesburg law firm Bowmans said it would petition for leave to appeal to the highest court in South Africa.
This follows a full bench of the Supreme Court of Appeal (SCA), with four of the five judges concurring, having ruled that the state had failed to prove the items in possession of Madiba’s eldest daughter, Dr Makaziwe Mandela, and her father’s former prison warden, Christo Brand, were protected heritage resources.
The items in question include, among other things, the former statesman’s iconic floral shirt, a pen given to him by former US president George W Bush, a broken prison key found at Robben Island, 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.
Mandela’s 1993 personal ID book, which raised a lot of public ire at the possibility of it being auctioned, is not listed in the court documents.
For the past four years, Makaziwe, represented by a largely Gqeberha-based legal team, including attorney Wesley Hayes, advocate David Smith and advocate Richard Buchanan SC, has been fighting for the right to have the artefacts auctioned by New York-based Guernsey Auction House.
She stated her intention was to use the funds primarily to construct a memorial garden in Qunu, where her father grew up and is buried.
The SA Heritage Resources Agency (Sahra), the Robben Island Museum and the department of sport, arts and culture have, however, made several bids to block the sale.
In the latest bid, Bowmans attorneys is now asking that Makaziwe and Brand give an undertaking that they will hold off on the auction pending the outcome of the appeal.
Failing which, Hayes said he anticipated the state’s lawyers would bring an urgent application to try halt the sale.
“We hold instructions to appeal the SCA judgment to the Constitutional Court which, as you know, is the apex court and the last court of appeal in SA,” the letter addressed to Makaziwe’s lawyers reads.
They further want an unequivocal and irrevocable undertaking, in writing, that pending the final determination of the application for leave to appeal, and the outcome thereof, that Makaziwe will “not take any steps towards causing or allowing all or any of the objects [in question] to be sold on auction, through a private sale, or otherwise”.
They had asked for the undertaking to be given to them by 3.30pm on Wednesday.
Bowmans partner Clement Mkiva said he would consult his clients before commenting.
At the time of publication, no further response had been received.
Attempts to reach the department of sport, arts and culture for comment also failed.
According to the lengthy judgment handed down by the SCA in January, 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.
An appellant approaching the Constitutional Court must demonstrate that the matter raises a constitutional issue or an arguable point of law of general public importance.
While constitutional issues are ideally raised in the lower courts, the apex court may, in appropriate circumstances, entertain issues raised for the first time on appeal if they arise on the existing record and it is in the interests of justice to do so.
Though parties may not materially remake their case at the apex court, supplementary papers or amendments may be permitted with leave of the court.
Public interest alone is insufficient; the matter must raise a legal issue of general public importance.
Hayes said they remained confident that they would be successful should the matter reach the Constitutional Court.
“Our client [Makaziwe] has been successful in the urgent application, the main applications and in the SCA, and we find it hard to believe ConCourt will overturn the decision of eight judges in the various previous courts.
“It’s also a shame that millions of rand have [allegedly] been spent on this litigation when the money could be put to better use protecting heritage sites.”
The Herald
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