This case considers the importance of national heritage and its preservation.

The S A Heritage Resource Agency (“SAHRA”) sought interdictory relief stopping First and Fourth Respondents and their agents selling outside SA any of 29 items (“the Mandela Objects”) that it had declared to be heritage objects in terms of s 32(2) of the National Heritage Resources Act, 1999 (“the Act”) until they had first repatriated those items from the USA to SA and obtained an export permit from SAHRA for their re-exportation.

It also sought an order directing the First and Fourth Respondent and their agents to take all reasonable steps to ensure the repatriation of these Mandela Objects back to SA within 30 days of the order, and report to it in writing when this has been done.

The First Respondent – a daughter to the late President Mandela – launched a counter-application for the review and setting aside of SAHRA’s decision to declare the Mandela Objects as “heritage objects”, and an order that the Applicants jointly and severally pay the costs of her counter-application for such review, including the costs of senior and junior counsel. She also sought the dismissal of SAHRA’s application with costs.

The counter-application hinged on the belief that SAHRA declared the Mandela Objects specifically as heritage objects, and not under the broad category of types of objects as envisaged in s 32(2) of the Act.

The Fourth Respondent – President Mandela’s former gaoler-turned-friend – made common cause with the First Respondent’s counter-application for the review and setting aside of SAHRA’s alleged decision to declare each of the Mandela Objects specifically as heritage objects. He also sought dismissal of SAHRA’s application for interdictory relief against him.

No relief was sought against any of the other Respondents.

The court considered 3 issues:

• Jurisdiction where one of the Respondents is resident outside its area of jurisdiction.
• Whether the Mandela Objects are heritage objects within the contemplation of the Act.
• The First Respondent’s counter-application for the review of SAHRA’s decision to declare the Mandela Objects heritage objects.

Jurisdiction

The Respondents challenged the jurisdiction of the court on the ground that the Fourth Respondent is resident outside the area of its jurisdiction. This point was rejected. The court reasoned that SAHRA’s interdictory relief is sought against the First Respondent (resident in Gauteng) in relation to some of the Mandela Objects, and against the Fourth Respondent (resident in the Western Cape) in relation to others. Conceivably, SAHRA could have launched these proceedings in the Western Cape High Court where the Fourth Respondent is resident. But then the First Respondent could conceivably have raised the same jurisdiction point that the Fourth Respondent raises.

The court reasoned further that it is now a legal position of some long standing that when a Division of the High Court has a matter before it that could also have been brought in another Division, it has no power to refuse to hear the matter, except where considerations of abuse of process are in play [Goldberg v Goldberg 1938 WLD 83 at 85–86; Standard Credit Corporation Ltd v Bester and Others 1987 (1) SA 812 (W), at 817J – 819E]. Thus, SAHRA had a choice to initiate these proceedings either in the Western Cape High Court or in the Pretoria High Court. It chose to do so in the Pretoria High Court. It was entitled to do so. That choice having been made, the Pretoria High Court has no power to refuse to entertain the matter in the absence of an abuse of process claim [TMT Services & Supplies (Pty) Ltd v MEC, Department of Transport, KZN & Others 2022 (4) SA 583 (SCA), at paras 30-35]. No abuse of process claim has been made.

It reasoned further that in any event it has jurisdiction over any person who, being outside its area of jurisdiction, is joined in a cause over which it has jurisdiction [Superior Courts Act, s 21(2)]. Since the Fourth Respondent, being outside the court’s area of jurisdiction, is joined in a cause over which the court has jurisdiction (by reason of its jurisdiction over the First Respondent), the court has jurisdiction over him.

Heritage Objects

On whether the Mandela Objects are heritage objects as contemplated in the Act, the court reasoned as follows:

• The long title and preamble of the Act provide much insight into what type of object should be declared a heritage object. These are objects that “define our cultural identity”; objects on which the country’s spiritual well-being and nation-building depends; objects that “shape our national character”, objects that deepen our understanding of one another, and facilitate national healing from the ravages of apartheid and material and symbolic restitution.
• Section 3(1) of the Act considers and recognises only heritage resources “which are of cultural significance or other special value” as falling within the philosophy and reach of the Act. A “cultural significance or other special value” is conferred by the object’s (a) importance in the community, or pattern of South Africa’s history; (b) its possession of uncommon, rare or endangered aspects of South Africa’s natural or cultural heritage; (c) its potential to yield information that will contribute to an understanding of South Africa’s natural or cultural heritage; (d) its importance in demonstrating the principal characteristics of a particular class of South Africa’s natural or cultural places or objects; (e) its importance in exhibiting particular aesthetic characteristics valued by a community or cultural group; (f) its importance in demonstrating a high degree of creative or technical achievement at a particular period; (g) its strong or special association with a particular community or cultural group for social, cultural or spiritual reasons; (h) its strong or special association with the life or work of a person, group or organisation of importance in the history of South Africa; and (i) sites of significance relating to the history of slavery in South Africa [s 3(3)].
• Section 5(3), which deals with general principles for heritage resource management, says the laws, procedures and administrative practices by which heritage resources are managed must be “clear and generally available to those affected thereby”.
• Section 32(1), which deals specifically with “heritage objects”, says an object or collection of objects, or a type of object or list of objects – whether specific or generic – that is part of the national estate [as defined in s 3], and the export of which SAHRA deems it necessary to control, may be declared a heritage object. Section 32(2) says “For the purposes of this section, an object within a type of objects declared to be a heritage object is deemed to be a heritage object”. This is the provision that SAHRA invokes for its argument that it has declared the Mandela Objects “as a type of object” that fits the definition of “national estate” in s 3, generically and not individually or specifically.
• Section 32(19) prohibits the export of a heritage object without SAHRA’s export permit, and section 32(20) prohibits the removal of a heritage object from South Africa other than through a customs port of entry.
• Of the types of heritage resources enumerated in the gazette of 18 April 2019, SAHRA lay emphasis on:

“3.3   Objects assessed according to criteria in S32(24) if the NHRA and identified as being of cultural, historical or aesthetic significance, whether originating in South Africa or elsewhere, that have been in South Africa for more than 50 years which includes … [3.3.13] Awards and associated memorabilia associated with significant figures awarded in South Africa or awarded to South Africans            …

3.5     Objects related to significant political processes, events, figures and leaders in South Africa.

3.6.    Objects related to significant South Africans, including but not limited to: writers, artists, musicians, scientists, academics, educators, engineers and clerics as well as events of national importance.”

• Section 32(19) of the Act, when read together with s 51(1)(a), is a penal provision. While the conduct that it proscribes is clear and unambiguous (“No person may export or attempt to export from South Africa any heritage object without a permit issued by SAHRA”), it is far from clear how far the “heritage object” net spreads. Put differently, the language that describes a “heritage object” in the Act, and the regulations that SAHRA invokes, is so overbroad that just about anything that President Mandela touched, or is “associated” with, or “related to” him, can be considered a heritage object. That – and considering the clear intention to confine heritage resources to objects of national significance, as demonstrated by the language of the long title and preamble – could not have been the legislature’s intention.
• SAHRA deemed the Mandela Objects to be heritage objects by regulation published on 18 April 2019. It did so pursuant to s 32(2) of the Act which says: “For the purposes of this section, an object within a type of objects declared to be a heritage object is deemed to be a heritage object”. One example of types of objects declared by SAHRA to be heritage objects under the section is: “Objects related to significant political processes, events, figures and leaders in South Africa” [Regulation 3.5 in GG 42407 of 18 April 2019]. Section 3(3)(h) confers that status on objects which have “strong or special association with the life or work of a person … of importance in the history of South Africa”.
• While there is no question that President Mandela was a significant political figure, a significant leader and a person of importance in the history of South Africa, tens or hundreds of Springbok Rugby jerseys or ruling party attire autographed by President Mandela on the campaign trail, or tens or hundreds of copies of his book “Long Walk to Freedom” autographed by him over the years – although “related to” a significant South African, a significant political process, a significant political event, and a significant political figure – could not (when considered within the broad context of the Act as a whole, its long title and its preamble) have been intended by the legislature to be regarded as heritage objects. The description simply does not satisfy the general principle in section 5(3) of the Act that the law by which heritage resources are managed must be “clear and generally available to those affected thereby”. For that reason, it would be unpardonably louche of the court to expose the First and Fourth Respondents to a possible criminal sanction in these circumstances [S v Toms; S v Bruce 1990 (2) SA 802 (A), at 808A-C]. Given their ordinary grammatical meaning, phrases like “related to” and “associated with”, when used to describe objects for purposes of bringing those objects within the net of heritage objects, are so wide as would court an absurdity.
• But even when considering the purpose and context for which the Act was enacted, there is no reasonable measure by which all 29 items can – holus bolus and by a simple act of declaration, even after a process of public consultation – be deemed to be heritage objects as envisaged in the Act. This is because the long title and preamble make plain that not every object that is merely “related to” or “associated with” a significant political event or process or person is a heritage object. On a purposive and contextual reading of the Act through the prism of its long title and preamble, the object must, for example, (1) be a resource of national significance; (2) be instrumental in the nurturing and conservation of a legacy worthy of being bequeathed to future generations; (3) be unique and precious in a manner that cannot be renewed; (4) help us to define our cultural identity; (5) lie at the heart of our spiritual well-being; (6) foster in us the power to build our nation; (7) have the potential to affirm our diverse cultures; (8) shape our national character; (9) contribute to redressing past inequities; (10) educate, deepen our understanding of society and encourage us to empathise with the experience of others; (11) facilitate healing and material and symbolic restitution; and (12) promote new and previously neglected research into our rich oral traditions and customs.
• On these lofty ideals, it is difficult to imagine how a pair of sunglasses and an autographed book fit the mould described here.

Counter-application: Review

As regards the counter-application, the court dismissed it on the ground that SAHRA plainly did not make the decision sought to be set aside. It declared the Mandela Objects as heritage objects under the broad sweep of s 32(2) as types of objects and not – as contended for by the First Respondent – specifically and individually as heritage objects. That declaration came in the form of the regulations finally published in the gazette of 18 April 2022 after following the process described in s 32(5)(b), not s 32(5)(a) which applies where declaration is specific to an object or item. This is clear from the undisputed facts. There is thus no decision of the kind alleged by the First Respondent. Consequently, there is nothing to review and set aside.

Costs

On costs, the court said there is no reason why costs should not follow the cause in both applications.

It found that the review application was a “Hail Mary” It reasoned that, judging by the clear terms of the founding affidavit that point indisputably to a declaration not of each individual item as a heritage object but of the declaration of the list of types of heritage resources, the review application should not have been brought. Regrettably, the First Respondent persisted in this exercise even after this was confirmed in SAHRA’s subsequent affidavits. SAHRA should not have been put by the First Respondent to the unnecessary cost of producing a rule 53 record and resisting a clearly ill-conceived application.

In the circumstances, the court considered it fair that the costs in SAHRA’s interdict application and those in the First Respondent’s review application should cancel each other out.

The court found that the Fourth Respondent, while making common ground with the First Respondent, is in a different position. He did not seek a record, and Counsel did not press the review with vigour in argument but focused on the main question of whether the two items pertaining to the Fourth Respondent are truly heritage objects as envisaged in the Act. It found that he is entitled to his costs in resisting SAHRA’s application without pressing the counter-application. Those costs are to include the costs of junior Counsel (as Senior Counsel appeared pro bono) and the disbursements of Senior Counsel.

Order

In the result, the court dismissed SAHRA’s interdict application and ordered that it, jointly and severally with the Second and Third Respondents, pay the Fourth Respondent’s costs, including the costs of Junior Counsel (but not of Senior Counsel who appears pro bono) and the disbursements of Senior Counsel. It also dismissed the First Respondent’s counter-application.

Read Full Judgement here –>SA Heritage Resources Agency et al v Makaziwe Mandela et al – 01 December 2023 Final

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