TOWARDS A VIABLE FRAMEWORK FOR INDIGENOUS KNOWLEDGE PROTECTION IN SOUTH AFRICA: RESOLVING THE CONFLICT BETWEEN THE INTELLECTUAL PROPERTY LAWS AMENDMENT ACT 2013 AND THE PROTECTION PROMOTION AND DEVELOPMENT OF INDIGENOUS KNOWLEDGE ACT 2019

 LITIGATION FOR THE RETURN OF NELSON MANDELA’S OBJECTS

ES Nwauche (Prof)

In this season of the return of stolen or illegally acquired African artifacts, it is gratifying to note the recent unsuccessful litigation by the South African National Heritage Resources Agency (SAHRA) for the return of the objects owned by late Nelson Mandela that were slated for auction by Guernsey’s Auction House in New York because the artifacts are national treasures that require permits to leave South Africa. As alleged, the Mandela Family commissioned the sale but had not obtained the required permits. In a related incident, the South African Minister of Arts and Culture protested the sale in December 2021 of the Key to Mandela's prison cell on Robben Island, which led to the Auction House postponing the sale of the Key. The intervention of SAHRA in both cases lead to the cancellation of the sale of the Key and the other objects owned by Nelson Mandela scheduled for January 2022.

In May 2022, SAHRA filed an action before a Pretoria High Court for the return of the artifacts because the objects were exported without an appropriate permit. Dr. Makaziwe Mandela-Amuah, opposed the bid and argued that the items in question were infact not "heritage objects" and therefore, no permit was required to export them. She further contended that the action was a ploy by the state to confiscate her private property. The 30 (thirty) objects in question include a beige floral Madiba shirt, a pen gifted to Mandela by former US president George W Bush; a signed Rivonia trial photograph and a book titled Jewish Memories of Mandela; Breaking Fire, an original charcoal drawing by Mandela; Reflections on Robben Island: Series 1 and Series 2 by Mandela; A US Mint Mandela coin; A copy of Moral Courage: Abraham Lincoln Mahatma Gandhi Nelson Mandela, and Martin Luther King Jr which was gifted to Mandela; A Holy Qur'an in a Kaaba box; gifted to Mandela by former US President and first lady Barack and Michelle Obama. Given the broad spectrum of the artifacts, some may qualify as part of the National Estate. Some of them may not. It is easy to argue that by their association, all the objects are highly significant to South Africa because of his role in founding South Africa’s democracy, fostering reconciliation, tolerance, and respect for diversity.

While the case's outcome is eagerly awaited, the significance of this action signposts emerging processes through which Africa's artifacts may be returned or repatriated through state litigation in states of object origin. It is of further significance as an example to other African national heritage agencies of additional action to moral suasion. Through joining the Auction House as a respondent to the SAHRA case and hinting at criminal liability, a 'new' chapter in the return and restitution of stolen and illegally acquired African artifacts has opened.