SPRING WAS REBELLIOUS, BUT IT’S ALL OVER NOW – PUBLIC ART, POLITICS AND THE LAW IN POST-APARTHEID SOUTH AFRICA – PART TWO

Abstract

As pointed out in part one of this article, politics, art and the law make uncomfortable bedfellows, and the commissioning of public art by public bodies often gives rise to bitter controversy. Part one traced a recent ongoing public spat in the Durban area concerning a sculpture of three large elephants by the acclaimed international artist, Andries Botha. Using that case as a lens, part one attempted to situate the central issues surrounding the commissioning of public art by public bodies in post-apartheid South Africa within a broad historical, political and constitutional framework. Part two of this article examines certain of the more specific and salient legal issues which the authors believe South African courts dealing with matters of this kind will need to address. The possible legal rights of both the South African public when confronted with undue state interference in matters of public art, as well as those of individual artists involved in such matters, are discussed. In relation to the rights of the South African public, the constitutionality of the commissioning process itself (that is, potential constitutional constraint on the actions of public officials who commission public works of art), as well as the potential right of the general public to the preservation of works of art of “recognized stature”, is discussed. As for the rights ofindividual South African artists, a number of areas of the law – constitutional, contractual and statutory – as possible sources for such rights are examined. In particular, the “moral rights” of South African artists, protected in terms of statute, are analysed and discussed in detail. The authors conclude that the funding and commissioning of public art by public bodies in South Africa should be arms-length, and that artists should be maximally free to determine the content of their creative expression. Furthermore, public art should be as diverse as possible within South Africa’s constitutional democracy, reflective of the beautiful diversity of the country’s people. Direct political interference in matters of public art should be strenuously avoided.