Durban city council 'aggressive, evasive' on jumbos
Elephant sculptor Andries Botha has labelled city manager S'bu Sithole's response last month, to his high court application to prevent the scrapping of his Three Elephants sculpture, "aggressive, evasive" and not of a nature one would expect from an "accountable organ of state".
Andries Botha with his sculptures.
Botha lodged a Durban High Court application last year, aimed at reviewing and setting aside the "unconstitutional political decision" to pull the plug on the installation of the sculpture, which had been weeks away from completion.
Work on the elephants stopped in 2010, and the sculpture has since been vandalised.
According to his answering affidavit filed on Monday, Botha felt that the municipality was legally obliged to be open and honest and should comply with the Bill of Rights. But said it failed to do so.
He said the municipality devoted most of its affidavit to legal submissions and attacks on his case instead of dealing with the rationale for making the decision to stop work on the sculpture.
Sithole had said, in responding court papers, that Botha was not directly contracted to the city for his artwork. He 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.
Sithole had said the city issued a "stop work order" to Rumdel, which presumably issued it to Richsons', which then issued it to Botha.
Botha had said, in his original court papers, that his artwork was commissioned by the municipality for the benefit of the public, and has been paid for, though not in full, with public funds, and had generated immense public interest.
When work on the sculptures was stopped, Botha had been paid R1.2 million for the R1.6m project.
The municipality later proposed to remove two of the three elephants and turn the project into a "Big Five urban design concept", which Botha refused to accept. He said it would alter the "core conceptual meaning of the work".
Botha said the Three Elephants sculpture was proposed to the city as an "eco-human metaphor".
In papers filed on Monday, Botha bemoaned Sithole's suggestion that Botha should seek reasons from Rumdel. "The court and (myself) are accordingly left in the dark," he said, reiterating Sithole's "scare attempts" to justify the municipality's reasoning.
Botha argued that despite Sithole saying he had no personal knowledge of the events, he relied on documents and advice from people involved at the time. He added that Sithole did not identify the documents used or people consulted.
"Most conspicuous is the failure to procure an affidavit from Dr Michael Sutcliffe, the city manager at the time, who was tasked by (the municipality) to produce a report on the Three Elephants sculpture," said Botha.
He felt Sithole was not armed with the required knowledge to deal with the matter, but still attempted to justify the municipality's decision by speculating.
Sithole had referred to the municipality's "residual right" to deal with public artwork in the interest of the broader public. Botha doubted this, saying that if this right existed, it could not "trump the artist's moral rights and right to freedom of expression".
He felt the municipality's decision was not motivated by a "real concern for the 'broader public', but one that was politically motivated".
Botha had originally said the reason the council stopped the work was that the ANC feared that the three elephants would be seen as the IFP symbol.
Sithole called this, in court papers, "unsubstantiated hearsay".
The artist said the municipality has still not provided a reason as to why the three elephants concept was originally chosen and this, he said, was needed to understand why it went from three elephants to the Big Five.
Botha objected to the municipality's suggestion that their decision was made by a vote, which made it acceptable, and the municipality's claim that it was not obliged to publish formal reasons why councillors voted as they did.
Botha's attorney, Toby Orford, said the next step, if the municipality did not file further responding papers, was for a date to be set for the court hearing.