Makaziwe Mandela says the South African Heritage Resources Agency (Sahra), the Robben Island Museum and the sport, arts & culture department “have not demonstrated a sound, rational basis” in their leave-to-appeal application heard in the Pretoria high court on Wednesday.
The trio are appealing a previous high court ruling which dismissed their bid to interdict a planned sale of former statesman Nelson Mandela’s personal artefacts in the US by his eldest daughter and former jailer turned friend Christo Brand.
The applicants had asked the Pretoria high court to order Makaziwe and Brand to return the 29 objects to South Africa within 30 days, and interdict them from taking them out of the country again.
The court instead ruled that Makaziwe and Brand had every right to dispose of the items which they had inherited, including the key to the anti-apartheid activist’s cell on Robben Island.
The matter was heard before judge Selby Boqwa and acting judges Rathaga Ramawele and Vuyani Ngalwana.
Advocate Robin Pearse, SC, appearing on behalf of the three applicants, argued that their application would be advanced on the basis that “an appeal would have a reasonable prospect of success” and that “there are other compelling reasons why an appeal should be heard” in the Supreme Court of Appeal.
On the first, Pearse said: “We acknowledge of course that this court delivered a closely reasoned judgment, it interpreted and it applied provisions both of the NHRA [National Heritage Resources Act] and the list of types.
“It is of course not our intention today to seek to convince this court that it was incorrect in doing so [in its findings]. We are less ambitious for present purposes, we seek only to convince this court that there would be a reasonable prospect of our convincing an appellate court that the reasoning and order of the high court is to be set aside,” he said.
Pearse outlined some of the reasons, eight in total, the applicants relied on “for our primary contention that there are reasonable prospects of success”. These included that there had been no challenge, constitutional or otherwise, to any provision of the NHRA, that there was also no challenge to “any provision or any category of the gazetted list of types” of heritage objects.
He argued that the 29 objects “at issue in these applications fall within the ambit of those that bear a strong or special association with the life and work of the former president”.
David Smith, for Makaziwe Mandela, said: “The problem for the applicants is that the applicants don’t plead all these contextual material factors. They rather instead focus only on a conclusion of law.
“So … all parties make common ground that Nelson Mandela was South Africa’s first black democratically elected president and then they [applicants] make a conclusion of law and they say that by virtue of this fact, all the objects that were either touched, owned or possessed by the late Mr Mandela fall within the category of list of types and that they are therefore automatically, by process of law, deemed to be heritage objects.”
Smith accused the applicants of trying to “remould” their case on a new “sort of constitutional underbody, which was never argued” before the court.
He also argued that Sahra, the department and museum had “not demonstrated a sound, rational basis for the argument that the appeal court is going to come to a completely different decision from the motion court in its interpretation of the statute … on the definition of a deemed heritage objects”.
Advocate Russell MacWilliam SC, for Brand, labelled the application “ill-founded” and based this on a concession made by Pearse that “the object must have strong or special association with the life or work of a person … of importance in the history of South Africa” as found in section 3 of the NHRA.
“He didn’t dispute. He said we agree [or] make that concession, that’s what the object must have,” he said.
MacWilliam argued that there was no suggestion that the two items linked to Brand, the key to Nelson Mandela’s cell on Robben Island and a signed copy of the constitution, could bear special or strong association to the “life or work” of the late statesman.
MacWilliam took issue with Pearse’s assertion that the key Brand was due to sell belonged to the museum, saying this argument was abandoned in the latter’s founding affidavit and wasn’t factual.
On the signed copy, he said Pearse had made a “vague assertion” that Brand’s signed copy was handed to him by Mandela.
“What happened is that it [was] a copy of the constitution that he [Brand] took to the president and asked the president … to initial it,” he said. “There isn’t any factual basis to suggest that either of those objects … could possibly be heritage objects.”
Judgment was reserved.
TimesLIVE
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