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Thursday May 17, 2012

Durban rebuts Jumbo sculpture claims

Durban's city manager, S'bu Sithole, has distanced the municipality from the elephant sculpture debacle spanning more than two years, arguing that artist Andries Botha was not directly contracted to the city.

He has also called the reason for the council's halt of the work - widely believed to be ANC fears that three elephants would be seen as the IFP symbol - as "unsubstantiated hearsay".

Sithole argued also that Botha's court action was more about money than defence of artistic rights.

And he said the city was not to blame for a lack of agreement with Botha - his own refusal to enter a spirit of negotiation was.

Sithole's response to this effect is contained in an affidavit filed at the Durban High Court after the city manager reportedly expressed a willingness to settle the dispute out of court.

In court papers Sithole 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.

Any allegation of a direct contract was "simply without foundations", he said.

In the absence of a tender, said Sithole, a direct employment contract between the municipality and Botha and Sunfox 43 would have been unlawful.

Sithole said the city issued a "stop work order" to Rumdel, which presumably issued it to Richsons', which then issued it to Botha.

Sithole said the contractual chain "strips any vestiges of administrative action" from the decision of the city.

In March, Botha, locked in legal battles with the city since halting work on his sculpture in February 2010, brought an application compelling the municipality to provide him with documents on the issue.

He said he believed the order came after then ethekwini regional ANC chairman John Mchunu, who complained that the elephants were a symbol of the IFP. The council resolved to remove two of the elephants and turn the project into a "Big Five urban design concept". But Botha rejected the idea, saying it would have been a "distortion, mutilation and modification" of his work.

He launched a court bid to review of the stop. He also asked that the municipality be interdicted from going ahead with the Big Five concept and that he be allowed to complete the sculpture.

According to court papers, Botha had been commissioned to create the sculpture in time for World Cup 2010. It was to cost R1.6 million. Botha was still owed R369 328.

Mchunu since died.

Responding for the first time, Sithole said that the "high water mark" of the artist's dispute is that unnamed officials told Botha that the caucus of the ANC objected to the sculpture because it considered the elephants a symbol of the IFP.

"Unsubstantiated hearsay" should be given no weight, because whatever the reasoning of the ANC, it was irrelevant as the matter was one of legislative deliberation.

The ad-hoc committee, Sithole said, appears to have approved the work without reference to the council.

Sithole denied that a decision was taken to remove the statues. He said it was impossible to ascertain reasons why councillors voted as they did and that asking them to disclose reasons would be an infringement on their rights.

He said it was "legally improper" to allege the allegations of a single individual were the bar to the continued artwork when the decision was taken by the council.

"I also deny that merely because a decision is taken on political basis it is arbitrary and irrational. On the contrary, the council ultimately determined that a Big Five project would be more appropriate. This is to leave aside the fact that internationally, and in South Africa, publicly commissioned artwork is often of a political nature."

Sithole denied knowledge of the reasons why the ANC objects to the sculpture and denied that the city was obliged to publish those reasons.

Sithole said if the reasoning of the ruling party is as alleged, it is not a basis to hold the city responsible for a decision that was taken in full council after debate and a vote.

"The ad hoc advisory committee had no authority to contract on behalf of the city and did not purport to do so," he said.

He also said he had no knowledge of any meeting with Michael Sutcliffe, but noted Botha's willingness to engage in discussion about modifying the design.

Sithole said Sunfox was undoubtedly acting in its commercial interest, not in public interest.

Daily News

 
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