Supreme Court of Appeal dismisses SAHRA's bid to prevent auction of Mandela memorabilia

The Supreme Court of Appeal has dismissed with costs a four-year battle to bar a collection of items associated with former President Nelson Mandela from leaving the country, while taking the South African Heritage Resources Agency (SAHRA) to task for grossly overreaching its mandate.

The multi-million-rand legal battle was initiated in March 2022 in the Gauteng Division of the High Court by SAHRA, the Robben Island Museum and the Department of Sports, Arts and Culture, citing Madiba’s eldest daughter Dr Makaziwe Mandela as first respondent. This after international media reported on an upcoming sale by Guernsey’s Auction House of a collection of Mandela memorabilia.

The collection is owned by Dr Mandela, her daughter Tukwini Mandela and Madiba’s former Robben Island gaoler and close friend Christo Brand, who had donated two items to the auction at Dr Mandela’s behest.

The international auction was expressly intended to raise funds for the creation of a memorial garden at the late Nobel Laureate’s final resting place in Qunu in the Eastern Cape. 

Dr Mandela expressed relief at the SCA judgment.

“But I remain confounded by the motivation for launching this marathon legal battle in the first place. Nobody is more invested in ensuring Tata’s legacy endures in the way he would want to be remembered, than those who carry his name.

“It is arrogant for an entity like SAHRA to presume to know my father’s last wishes better than those who were with him at the end – his family. His legacy is ours as well. It is not, and never will be, a political football.”

In its judgment, the SCA contended that: “SAHRA made no attempt to explain the grounds upon which it contends that each asset listed … is an ‘object within a type of objects declared to be a heritage object’. Instead, it merely states that all those assets are deemed heritage objects, omitting the primary facts upon which such a factual conclusion depend.”

Dr Mandela and Mr Brand had, however, presented cogent arguments as to why the specific items did not fall within the meaning contemplated in the Heritage Act.

“Section 25 of the Constitution affords Dr Mandela and Mr Brand the right not to be deprived of their property (assets) except in terms of law of general application, and that no law may permit arbitrary deprivation of property.”

The SCA judges further noted that the Heritage Act and Declarations can and should be interpreted in a Constitutionally compliant manner and “in a manner that avoids absurdity”. “SAHRA’s interpretation of the applicable provisions of the enabling statute and the Declarations is so overly-broad – absolutely anything associated with, or connected to, former President Mandela would be heritage objects – that it immerses the relevant provisions in uncertainty, contrary to the provisions of s 5(3) of the Heritage Act, which require laws, procedures and administrative practices, inter alia, to be clear.”

The government has been steadfast in its determination to ensure nothing related to South Africa’s first democratic president should leave the country or change hands without SAHRA first determining whether or not they are “heritage objects”. But the SCA ruling has made it clear that SAHRA cannot overreach the fundamentals of the Constitution, effectively starting with a premise that everything within its broadly-worded remit is a heritage object unless deemed not to be by the Agency. 

Dr Mandela, who expressed deep gratitude for the fortitude and endurance of her legal team comprising Wesley Hayes Attorneys and Advocate David Smith, said nothing had yet been decided about the objects that were to go under the hammer four years ago. 

“Our intention has always been to create a fitting living Garden of Remembrance where Tata is buried – a pilgrimage destination to remind the world of his social justice legacy – but how that will be achieved is yet to be determined."