National Arts Council eats humble pie, fulfils its PESP grant obligations with National Arts Festival after losing case at multiple courts

By Edward Tsumele, CITYLIFE/ARTS Editor

After losing their case with the National Arts Festival (NAF) at the Southern Gauteng High Court earlier this year and their appeal dismissed by the Supreme Court of Appeal with costs on October 1, 2021, it was the end of the road for the beleaguered National Arts Council (NAC).

Now the NAC had to eat a humble pie as it had to negotiate the terms of payment for the remainder of the Presidential Economic Stimulus (PESP funds it owes NAF.. And predictably as the victor in this high profile case in the arts, the terms seem to favoure NAF.

NAF which organises the annual National Arts Festival in Makhanda confirmed yesterday that it and the NAC, which is currently reeling under the recent Forensic report which fingered members of the NAC Council and senior management for wrong doing in the disbursement of the PESP, had reached terms of settlement in this dispute.

This means that the NAC has eventually fulfilled its grant payment obligations to NAF, a fact some will strongly argue should not have been prevaricated in the first place by appealing the first ruling and therefore continue to waste public funds in a matter that they eventually lost with costs.

Says National Arts Festival CEO, Monica Newton: “We are relieved that this unprecedented chapter in the long history of the NAF is now over and that we can finally complete these projects that were designed to benefit the artists, creatives and technical crews who are the intended beneficiaries of the PESP programme.’  
 
These include, projects supporting and funding 49 digital productions in all nine provinces of South Africa, development of the NAF’s Power Station Project in Makhanda, which will create a workshop space for local artisans, crafters and artists to innovate, experiment and install street art projects and a new arts programme of exhibitions and works challenging the narrative of the 1820 Settlers Monument in Makhanda, Eastern Cape. When completed, the projects are expected to create work and income generating opportunities for 400 people.”
So far what has happened in this PESP court case saga is that on 1 October 2021, the Supreme Court of Appeal dismissed the application for leave to appeal the 21 June 2021 judgment of the South Gauteng High Court ordering the NAC  to pay over the balance of funds awarded in terms of a PESP grant earlier in the year.
 
On 31 March 2021, Judge Willem Wepener of the South Gauteng High Court ordered the NAC to pay NAF  R3.4-million within 72 hours and that the revised grant notification letter sent to the NAF reducing the grant money be suspended with immediate effect. The order also indicated that the litigation for the balance of the funds would proceed on expedited timeframes and resulted in a further order to pay the balance in full, plus costs, on 21 June 2021. This was then taken on appeal by the NAC but on 8 July 2021, Judge Colin Lamont dismissed the appeal with costs.

A further appeal from NAC to the Supreme Court was again dismissed on 1 October 2021, with costs, requiring the NAC to meet the terms of the court order issued on 21 June 2021. At the request of the NAC, terms were agreed to by both parties in terms of the payment of the balance of the contract and legal costs, bringing to an end this saga that has exposed the NAC to allegations of arrogance and being wasteful of public funds during a pandemic when such funds could be used to add to the purse of funds earmarked for assisting artists reeling from Covid-19 impact.

For the post part of 2020 and 2021, artists have not been able to work and earn a living fully due to the continuous lockdown lockdowns  due to the pandemic. It is only now in Level 1Lockdown that  some constrained artistic activities, such as theatre, concerts, comedy, art fairs and  exhibitions are starting to be scheduled under strict Covid-19 protocols, such as in some cases, the producing of a vaccination “passport’ in a form of a vaccination certificate or card.

Nwabisa died of cancer in May, 2021, and Mikki Xayiya is a business partner of former Premier of Gauteng and prominent businessman Tokyo Sexwale’s business partner.