Minister Mckenzie joins National Arts Council in opposing SARA’s motion asking the courts to declare the arts funding board’s council “irregularly constituted”

This follows Minister of Sport, Arts and Culture Gayton McKenzie’s last-minute filing of his affidavit almost six months after he had indicated that he was ready to see the South African Roadies Association in court over its application asking the court to declare that the NAC Council is not properly constituted when it comes to those who sit on the Council representing the nine provinces.

By Edward Tsumele, CITYLIFE/ARTS Editor

The South African Roadies Association (SARA), the Newtown, Johannesburg, based Non-Profit Organisation that trains South African youth in live events and technical production skills, is asking that the South African High Court in Pretoria should not entertain the National Arts Council (NAC)’s court application to oppose its earlier, then unopposed case to dissolve the board of the NAC. This information is contained in SARA’s affidavit deposed with the court and signed by its President Freddie Nyathela in answer to the NAC’s affidavit filed last month.

This is because, SARA argues in its answering affidavit among other reasons, that the NAC only filed its answering affidavit too late, on November 6, 2024 on the eve of the case scheduled for hearing by the court on the basis of an unopposed motion at the South African high Court in Pretoria. This is despite the fact that the arts funding board had four months to do so, after which the court scheduled the case on the unopposed basis.

Also, the NAC which has filed the affidavit which is signed by the NAC Council Chairperson, Her Royal Highness Celenhle Dlamini should not be the one opposing the relief that SARA is seeking as the NAC is not privy to the proceedings leading to the appointment of the provincial representatives sitting on the NAC board.  The responsibility instead resides with the Minister and the cited MECs of Sport Arts and culture of the nine provinces, SARA argues in its affidavit. These authorities, SARA further argues, are the appointing authorities that saw the process of the appointment of the provincial representatives’ portion on the NAC Council, and therefore are the rightful custodians of the process, and not the NAC.

“The Second Respondent filed its answering affidavit about four months late, yet the Second Respondent failed to request the Court to condone its late filing, which includes failure to provide the Court with any explanation for being four months late. Accordingly, the Applicant respectfully requests the Court not to allow the filing of the answering affidavit absent a condonation application that is supported by good reasons. The Second Respondent is not above the law. The Applicant further respectfully requests the Court to show the Court’s dissatisfaction with the four months delay caused by the Second Respondent – with no reasons offered – by granting a special cost order against the Second Respondent.”

“Much emphasis is placed in the answering affidavit that a review procedure was an appropriate procedure to challenge the unlawful conduct of the Minister and the MECs. At the outset, I submit that the Second Respondent has completely misconstrued the Applicant’s application, including the basis and foundation of the Applicant’s case. The foundation of the Applicant’s case is based on section 172(1)(a) of the Constitution of the Republic and as properly pleaded in the founding affidavit.”

“Third to Eleventh Respondents, exercise a public power function. As such, having regard to the exercise of public power by the executive in terms of the applicable legislation, the statutory obligations that are imposed upon the executive must be fulfilled. The foundation of the application is entirely and only about a broad and fundamental question which has to do with the Minister and the responsible MECs’ unlawful exercise of public power as contemplated in the National Arts Council Act 56 of 1997 (as amended by the Cultural Laws Amendment Act 36 of 2001),” SARA’[s affidavit reads.

In its Founding Affidavit SARA is asking the High Court to declare that the NAC is irregularly constituted and therefore be dissolved.

In its earlier founding affidavit, SARA argues that as the NAC council stands, it is irregularly constituted as the appointment of the provincial representatives on the council did not follow due process as there was no “public and transparent” process in the provinces prior to the appointment of the individuals by the Minister. The Minister at the time was Nathi Mthethwa who currently is South Africa’s representative at UNESCO head of Office in Paris. The current Minister is Gayton McKenzie.

Mckenzie till yesterday had chosen chosen not to oppose the case and so werethe cited MECS from the nine provinces.

However, the issue took a new turn yesterday Thursday December 5, 2024, when Minister Mckenzie through the State Attorney, deposed an as yet to be signed affidavit to oppose SARA’s motion. Also included as now opposing SARA’s motion are the MECS from eight provinces. The Western Cape elected not to oppose SARA’s motion.

When the NAC filed its affidavit in November, 2024, it effectively meant that the status of the case changed from being scheduled as an unopposed.

In the affidavit deposed by the State Attorney on behalf of the Minister and the eight MECs, the Minister is asking the court to dismiss SARA’s case on the basis that the relief sought by the organization should have been sought 30 days after the announcement of members of the Council in terms of the law under the NAC Act.

“Section 12(1) provides that any person who feels aggrieved at any action or decision the Council has taken in terms of this Act may within 30 days of the date of the action or decision taken made known by Council, and after having given notice to the Council as prescribed, appeal to the Minister in the prescribed manner.  The applicant did not appeal the decision made even if it was made known to him but rather resorted to making a declaration order application. In terms of section 6 of the PAJA. The applicant had recourse in the form of the aforementioned sections, instead they chose a long short of seeking a declaratory order. The motion must then be dismissed with costs,” the Minister’s affidavit states.