SCA ruling opens door for auctioning of Mandela's prison key

THE SA Heritage Resources Agency (Sahra) has failed in its Supreme Court of Appeal case to stop the sale or export of various assets belonging to Dr Makaziwe Mandela and former president Nelson Mandela’s prison warder Christo Brand.

Sahra, as well as the Robben Island Museum and the Department of Sport, Arts and Culture, had asked that Mandela’s daughter and his former prison warder be interdicted from selling the struggle icon’s key to his Robben Island prison cell and other artefacts associated with him. Other items include a copy of the 1996 Constitution signed by the former president before the final version was formally executed.

The Gauteng High Court, Pretoria turned down the application. Sahra and others (the appellants) subsequently turned to the SCA to appeal the refusal by three judges.

Sahra contended that these assets formed part of South Africa’s national estate and constituted heritage objects under the National Heritage Resources Act.

The issue on appeal was whether the items owned by Dr Mandela and Brand did fall under this Act.

Sahra argued that anything relating to Nelson Mandela qualified as a deemed heritage object. It told the court that the Act required owners under these circumstances to seek permission from it before exporting any items that fit within these categories.

The SCA, however, rejected Sahra’s interpretation and held that neither the Act nor the declarations provided for such a mechanism.

The court emphasised that laws affecting criminal liability and property rights must be clear, constitutionally compliant, and not absurdly broad.

It found the categories relied on by Sahra to be far too wide and uncertain if interpreted as suggested. The court also held that Sahra had provided no admissible evidence establishing that each item met the requirements of cultural significance or special value.

The court noted that Dr Mandela and Brand had explained in detail how they acquired their respective assets and why the items did not have the necessary characteristics to qualify as heritage objects.

The court further held that the auction catalogue relied on by Sahra amounted to inadmissible hearsay and that no inference could be drawn that Dr Mandela or Brand regarded their items as possessing heritage status.

It said the owner’s property rights cannot be limited on the basis of speculation.

Sahra’s initial application was sparked after a British newspaper, the “Daily Mail”, published a story in December 2021 in which it said the key was set to fetch millions of rand at an auction by US auction house Guernsey’s. The key was the headline item at the auction.

Guernsey's earlier said on its website that the key would be included with one of Madiba’s iconic shirts, a signed copy of the South African Constitution, and other gifts given to Mandela by Harvard University and the Obamas.

Cape Times