Recent press articles – covering comments by the City of Durban and Andries Botha and his legal team

Andries Botha’s Lawyer, Toby Orford, said of recent articles in the media: (May 17th, 2012)
“The City has filed a very long affidavit taking all the factual and legal points it possibly can.  We dont for one minute believe that the case is as complicated as eThekwini’s lawyers have tried to make it, which they have done for deliberate, tactical reasons. When all is said and done, this is a simple case about artists’ rights as they exist in SA law either under intellectual property law, i.e. the moral rights, and/or under the bill of rights in the Constitution, i.e. the right of free artistic expression. There are other public interest issues e.g. the abuse and wastage of public funds and political party censorship, etc. 

When all is said and done, this is a case about the peculiar status that artistic works enjoy in SA and eThekwini has carelessly ignored or breached these rights, in the mistaken belief that The Three Elephants is an ordinary object and not, as is the case, an artistic work.”
MAY 17TH 2012

ellies sculps enclosedINLSAA file photo of someone’s strong views about the debated public art work painted on the fence enclosing Andries Bothas elephant sculpture in Durban. Picture: Gcina Ndwalane 


Elephant sculptor Andries Botha maintains that all his dealings over the disputed public art work were done directly with the municipality, including the authorisation of his payments.

“They are trying to abdicate responsibility by shifting the blame,” he said outside court on Wednesday, in reaction to eThekwini city manager S’bu Sithole’s court affidavit of a distant relationship with the artist.

Botha claimed that on more than one occasion, both on and off the record, then city manager Mike Sutcliffe had said that the reason the project was put put on ice was because of its strong resemblance to the IFP’s logo.

“I even put forward the idea of creating an extra elephant to Sutcliffe – he seemed keen, but then nothing happened,” he said.

But in court papers, Sithole described as “unsubstantiated hearsay” that the ANC had stopped the sculpture of three elephants because it looked like the IFP logo.

Sithole said on Wednesday he was still open to settling the protracted battle with Botha, despite claiming in court papers that there was no contractual obligation to do so.

The city boss said he had previously indicated a need to resolve the matter outside court: “This is still an option,” he said in an interview. “But if we are taken to court, we have the right to reply.”

His comments came as Botha’s legal team prepared to file the next batch of documents in the Durban High Court to hold the city accountable for the elephant debacle.

“We will be disagreeing with, contesting and contradicting all of these (Sithole’s) claims,” Botha’s lawyer, Toby Orford, said on Wednesday.

Depending on how the court process unfolded, Orford said it could set a precedent for the way artists – and art – were regarded in the country. “There are vast differences between artistic objects and ordinary ones – art cannot be treated in a derogatory or disrespectful way,” he said.

The Daily News reported on Wednesday that Sithole had in an affidavit distanced the municipality from the Warwick Junction sculpture project.

Sithole had claimed that the city had contracted with Rumdel Construction for the rejuvenation of the area, and that the company sub-contracted work to Richson’s Trading Enterprises – which took on Botha.

Orford said he would be carefully examining

all Sithole’s allegations.

“We will be issuing a replying affidavit, but will also be approaching Rumdel and Richson’s Trading Enterprisesto issue their own affidavit in response to the claims made by the city manager,” he said.

“All this ducking behind arguments will not help in the long-term.”


Botha said that art was a part of his right to freedom of expression, and that the way it had been treated was highly regrettable


“Why object to something you gave the go-ahead to? How can you ask the artist to change his vision, while work is under way? I’m a conceptual sculptor, not a wildlife sculptor, so how can I change the sculpture and fashion the ‘Big Five’ instead?”

He said that when Sithole had taken over from Sutcliffe, he was assured of a speedy resolution to the dispute. “But now the sculptures stand unprotected and heavily mutilated – and there’s no end in sight.”

eThekwini Municipality spokesman, Thabo Mofokeng, said the city remained committed to finding an amicable solution to the issue.

“Engagements are still ongoing and we’re hopeful that they’ll produce positive results.”

MAY 16TH, 2012

Jumbos: city fights back

May 16 2012 at 10:56am
By Rizwana Sheik Umar

Ellie sculpturesINLSAThe controversial elephant sculptures on the Warwick Avenue interchange. Picture: Gcina Ndwalane 

Durban’s city manager, S’bu Sithole, has distanced the municipality from the elephant sculpture debacle spanning more than two years, arguing that artist Andries Botha was not directly contracted to the city.

He has also called the reason for the council’s halt of the work –widely believed to be ANC fears that three elephants would be seen as the IFP symbol – as “unsubstantiated hearsay”.

Sithole argued also that Botha’s court action was more about money than defence of artistic rights.

And he said the city was not to blame for a lack of agreement with Botha – his own refusal to enter a spirit of negotiation was.

Sithole’s response to this effect is contained in an affidavit filed at the Durban High Court after the city manager reportedly expressed a willingness to settle the dispute out of court.

In court papers Sithole said the city contracted with Rumdel Construction for the redevelopment of the Warwick triangle interchange. Rumdel, in turn, sub-contracted work to Richsons’ Trading Enterprises.

Any allegation of a direct contract was “simply without foundations”, he said.

In the absence of a tender, Sithole said, a direct employment contract between the municipality and Botha and Sunfox 43 would have been unlawful.

Sithole said the city issued a “stop work order” to Rumdel, which presumably issued it to Richsons’, which then issued it to Botha.


Sithole said the contractual chain “strips any vestiges of administrative action” from the decision of the city.

In March, Botha, locked in legal battles with the city since halting work on his sculpture in February 2010, brought an application compelling the municipality to provide him with documents on the issue.

He said he believed the order came after then eThekwini regional ANC chairman John Mchunu, who complained that the elephants were a symbol of the IFP. The council resolved to remove two of the elephants and turn the project into a “Big Five urban design concept”. But Botha rejected the idea, saying it would have been a “distortion, mutilation and modification” of his work.

He launched a court bid to review of the stop. He also asked that the municipality be interdicted from going ahead with the Big Five concept and that he be allowed to complete the sculpture.

According to court papers, Botha had been commissioned to create the sculpture in time for World Cup 2010. It was to cost R1.6 million. Botha was still owed R369 328.

Mchunu has since died.

Responding for the first time, Sithole said that the “high water mark” of the artist’s dispute is that unnamed officials told Botha that the caucus of the ANC objected to the sculpture because it considered the elephants a symbol of the IFP.

“Unsubstantiated hearsay” should be given no weight, because whatever the reasoning of the ANC, it was irrelevant as the matter was one of legislative deliberation.

The ad-hoc committee, Sithole said, appears to have approved the work without reference to the council.

Sithole denied that a decision was taken to remove the statues. He

said it was impossible to ascertain reasons why councillors voted as they did and that asking them to disclose reasons would be an infringement on their rights.

He said it was “legally improper” to allege the allegations of a single individual were the bar to the continued artwork when the decision was taken by the council.

“I also deny that merely because a decision is taken on political basis it is arbitrary and irrational. On the contrary, the council ultimately determined that a Big Five project would be more appropriate. This is to leave aside the fact that internationally, and in South Africa, publicly commissioned artwork is often of a political nature.”

Sithole denied knowledge of the reasons why the ANC objects to the sculpture and denied that the city was obliged to publish those reasons.

Sithole said if the reasoning of the ruling party is as alleged, it is not a basis to hold the city responsible for a decision that was taken in full council after debate and a vote.

“The ad hoc advisory committee had no authority to contract on behalf of the city and did not purport to do so,” he said.

He also said he had no knowledge of any meeting with Michael Sutcliffe, but noted Botha’s willingness to engage in discussion about modifying the design.

Sithole said Sunfox was undoubtedly acting in its commercial interest, not in public interest.

On the alleged violation of constitutional rights, Sithole said, the argument rested on the false premise that the city’s issuing of a stop-work order amounted to a limitation on those rights. It did not, he said.

“If it should be found that there has been any limitation on the Botha’s constitutional rights, then those rights have been reasonably and properly limited.”

If that were the case, Sithole said, no municipality would have the right to remove or reposition monuments pre-1994 irrespective of the level of offence those monuments might cause now.

There would be no basis to remove graffiti from public buildings, to remove art that posed a security concern or to eliminate art to allow for infrastructure development.

On copyright, Sithole said because Botha was prepared to enter discussions about the amendment of the design, it was evidence of waiver of strict rights under the Copyright Act.

“An effective right of veto about artistic work to be displayed in the public domain where the alleged author is paid under a contract is under a contractual obligation to satisfy their ‘customer’,” he said.

It was not the city’s conduct that frustrated the artist, but the artist’s refusal to enter into a “spirit of negotiation” that prevented an agreement from being reached.

Sithole said the publicity surrounding the dispute served only to reduce any impact on Botha’s reputation as it would be made clear that the ultimate design was not Botha’s.

The city manager labelled the relief sought by the artist “extraordinary”. He said since the artist’s claim was “entirely misguided”, there was no reason why the public should be compelled to fund litigation ultimately designed to pursue commercial interests.