By Lehlohonolo Lehana.
@ReutersPhoto.
The North Gauteng High Court has reserved judgment in an application for leave to appeal the auctioning of items belonging to former president Nelson Mandela.
The matter arose after the high court dismissed its attempt to interdict an auction of various belongings of Mandela by his daughter, Makaziwe Mandela, and Mandela’s former prison warden, Christo Brand.
The court instead ruled that Makaziwe and Brand had every right to dispose of the items which they had inherited.
The SA Heritage Resources Agency (SAHRA) is seeking leave to approach the Supreme Court of Appeal (SCA) to argue a case that may determine how SA determines what constitutes heritage items.
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.
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.
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 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.
Judge Selby Baqwa reserved the judgment.
“I thank counsel for the heads which have been of great assistance in preparation to hear the application. Judgment is reserved and will be handed down in due course,” Baqwa said.
Commenting on the matter, SAHRA spokesperson Ben Maswinga said he believed they had put forward a good argument.
Madiba’s personal items were due to be sold on 22 February. The auction was suspended after an agreement by Makaziwe, the auction house and SAHRA. Among the items to be sold is Madiba’s ID book, glasses, prison key and ear pieces.