"The Three Elephants" are Fighting For Survival in Court: Moral Rights Through the Prism of the South African Constitution

'Elephant' by artist Andries Botha under construction

Press release issued by Toby Orford, TOBY ORFORD ART LAW, who attended ARCA's Third International Art Crime Conference.

In order to protect his “Three Elephants” artwork – a life-size sculpture at the Warwick Triangle Viaduct in Durban – the internationally respected artist Andries Botha has been forced to institute legal proceedings. The case is brought against eThekwini Municipality and other parties, including the Minister of Arts and Culture, Mr Paul Mashatile. Botha will be represented in the Durban High Court proceedings by the prominent constitutional and administrative law Advocates Gilbert Marcus SC and Max du Plessis.

The dispute has generated much public interest since February 2010 and the dilemma of Andries Botha and “The Three Elephants” has been reported on extensively in the media, in South Africa and internationally.

At the heart of the dispute is the fate of “The Three Elephants”. “If eThekwini has its way, my sculpture, which was approved and commissioned by them, will be torn down”, said Andries Botha. Although eThekwini concluded a contract with Botha to build three elephants emerging from a sea of stones, it changed its mind in June 2010. Having formally ordered Botha to stop working on the public sculpture, eThekwini passed a Resolution which approved the destruction of two of the elephants and the incorporation of the remaining elephant into a new urban design concept consisting of the “Big Five” animals.

eThekwini's about-turn is closely linked to rumours that local ANC politicians are fearful that “The Three Elephants” are too closely related to the official symbol of the Inkatha Freedom Party:

“This is ironic because the elephants were specially chosen – by eThekwini - as an apolitical African metaphor for tolerance, co-existence and due consideration for a vulnerable eco-system”, said Botha.

Botha wants to complete “The Three Elephants” project in the public interest, and to receive payment for the work he and his employees have done. Notwithstanding Botha's efforts to find a solution to the stand-off, eThekwini has refused to give an undertaking to safeguard the integrity of “The Three Elephants” – which means that the elephants may be removed at any time.

Andries Botha says that he has been left with no choice but to seek the court's protection. His legal representative Toby Orford of Toby Orford Art Law has been instructed to lodge application papers at the Durban High Court. Toby Orford confirmed that the papers have been filed and are being served on the respondents. According to Toby Orford, “The purpose of the application is fully set out in the application papers but it is no secret that it is an application for a declaration to confirm Andries Botha's rights, a review of eThekwini's decision and an interdict prohibiting eThekwini (and others) from modifying, altering or destroying “The Three Elephants”. Andries also has separate claims in contract and delict against the contractors involved in the Warwick Triangle project.”

Botha's case is that eThekwini's decision to remove two of the elephant figures is a decision to destroy, mutilate or change a work of art. eThekwini's decision amounts to censorship and interference, which violates the artist's freedom of artistic expression which is guaranteed by the Constitution.

Above all, eThekwini's decision is a breach of the moral rights of an artist. Toby Orford explained further:

“Moral rights are known in copyright law as the author's “moral right” and are closely derived from Article 6 of the Berne Convention, 1886. An artist's moral rights (as set out in section 20 of the Copyright Act) are infringed when without his approval his right of paternity in the work is not acknowledged or (as in this case) an unjustifiable distortion, mutilation or other modification of the work takes place or is threatened.”

It is time that the moral right of the artist is upheld in South Africa, as seen through the wide-angle lens of section 16 of the Constitution:

“Art and artists have clear rights. Unfortunately, it appears that the only way to protect those rights and the public's interest in The Three Elephants is by recourse to the courts. This decision has been taken only after careful deliberation and unsuccessful efforts to broker a compromise solution”, said Toby Orford.

Toby Orford can be reached at toby@tobyorford.com OR www.tobyorford.com.