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Maureen Mswela OWNERSHIP OF SOUTH AFRICAN STREET ART AND THE PROTECTION OF CULTURAL HERITAGE RESOURCES by SARAH RUTHERFORD SMITH submitted in accordance with the requirements for the degree of DOCTOR OF LAWS at the UNIVERSITY OF SOUTH AFRICA Supervisor: Prof M Wethmar-Lemmer Co-Supervisor: Prof C Roodt SEPTEMBER 2019 STATEMENT DECLARATION Name: Sarah Rutherford Smith ___________________________________ Student number: 33737193_______________________________________________ Degree: LLD____________________________________________________ Exact wording of the title of the thesis as appearing on the electronic copy submitted for examination: Ownership of South African Street Art and the Protection of Cultural Heritage Resources I declare that the above thesis is my own work and that all the sources that I have used or quoted have been indicated and acknowledged by means of complete references. I further declare that I submitted the thesis to originality checking software and that it falls within the accepted requirements for originality. I further declare that I have not previously submitted this work, or part of it, for examination at Unisa for another qualification or at any other higher education institution. (The thesis will not be examined unless this statement has been submitted.) ________________________ _____________________ SIGNATURE DATE I have written Gandalf is here in signs that all can read from Rivendell to the mouths of Anduin. JRR Tolkien, The Lord of the Rings Mr Shine. Him diamond. Terry Pratchett, Thud! i ACKNOWLEDGMENTS Many people have contributed to this thesis in unique ways. I would like to specifically recognise the support of a few individuals: My husband, Gary. Any expression of gratitude is going to fall short of what you have done and continue to do for me. Your patience and perseverance has seen me through this journey. You are the best choice I have ever made and will ever make. You are inimitable. I love you. My supervisor, Professor Marlene Wethmar-Lemmer. I am privileged to have been supervised by such a qualified and respected academic. You have never had a harsh word or criticism for me; your guidance has always been constructive and empowering and has given me confidence in my research skills. The emotional support and understanding you have provided through this process has exceeded your responsibility. I could not have found a better supervisor and I am honoured to have you as a friend. I would also like to acknowledge the support of your family, who indirectly support me through supporting you. Thank you for everything. My co-supervisor, Professor Christa Roodt. Again, I am fortunate to have had the guidance of such an esteemed academic. You have been able to provide support and knowledge in the areas of which I was most uncertain. With your approval and assistance, I was confident that my work was worthwhile. Thank you for all that you have done. My friends from the Department of Jurisprudence at Unisa. Andrea Bauling I would have gone insane were I not able to walk into your office and chat. Prof Irma Kroeze, thank you for finding me and letting me be me. Prof Magda Slabbert ek is smoorverlief vir jou. Also, Christa Cromhout, Annalize Jacobs, Magdaleen Swanepoel, Funmi Abioye, Freddy Mnyongani and Lizel Wildenboer. Thank you for putting up with every time I just had to share some information! Thank you all for ten wonderful years of work and friendship. I miss you all immensely. ii Thank you to the Unisa library and staff, specifically Yegis Naidoo, who assisted me in gathering all my research material. I recognise and thank the College of Law at the University of the Witwatersrand where I completed my undergraduate degree. In particular, Professor Marius Pieterse who provided the space to be inspired by the law. This thesis would not have been possible without the work of the late Professor AJ Van der Walt. My gratitude goes to my friends who put up with me; Lyndell, Christopher, Olivia, Wayne, Busi, Nkuli, Andrew, Jaclyn, Cheryl, Mathew and Zain. As well as, John and Sue McKnight without whose example and encouragement I would not have pursued a law degree. I would like to acknowledge the work and inspiration of the artists I refer to in this thesis. I saw my first Banksy the Mild Mild West in Bristol in 1999. It is the first piece of art I remember evoking an emotional reaction in me. This was the artwork that sparked my interest in Banksy, in graffiti art and that eventually led to this study. Faith47’s work is a unique combination of some of my interests, street art, South African history, and law to name a few. Her work is a commentary on my birth country and reminds me as a South African of the values and ideals I strive to embody. I would also like to recognise the impact that the novels of Terry Pratchett and JRR Tolkien have had on my life. My deepest gratitude goes to my entire family. You have all provided an environment in which I am safe and loved and in which I have been educated and inspired. You understand me better than I do myself. This achievement is a collaboration of your love and support. Thank you, Dad (I love you five cents worth) and Alison. Dad your understanding of who I am supported me through some difficult times. Thank you, Roy for all the support you give me and for everything you do for mum. Thank you, Adrian, Rae and Finn. Thank you to my mother-in-law, Frances and my father-in-law, Arthur (without whose support and automotive iii mechanic skills I would never have gotten my undergraduate degree). Also, because you raised an amazing son. My grandmother for all the stories and keeping me on my toes. Thank you Meris, Toby, Kirsten and Mat. Thank you to my extended family. And Jude and Bella. iv This thesis is dedicated to my mother Christine and my sister Amanda, the two people who have had the greatest impact on my life. The love and gratitude that I have for you is difficult to express. Thank you for every day of my life. Thank you for being so strong, for being my role-models and for all your love, support and perseverance. Mum, you did more than any child could have wanted; you provided a childhood rich in literature, culture and adventure. You have always encouraged me to learn and explore. I am so privileged to have been exposed to so much of what the world has to offer because of your commitment to your children. Amanda your support has always been unwavering. You put up with all my nonsense. You are my best friend, my cheer leader and my confidant. You also provide a wonderful example of how to live life to the fullest. Thank you both for all that you do and for everything you are. I love you. v ABSTRACT The development of graffiti into an accepted art form, street art, is a cause of concern for South African property owners. The current position in South African property law regarding the original acquisition of ownership suggests that the creation of street art on movable property belonging to another could result in the transfer of ownership. Ownership of the movable may transfer via accessio to the street artist provided that the artwork changes the nature of the movable. This would occur even if the street artist does not act in good faith because bona fides is not a requirement for the original acquisition of ownership via accessio. This anomaly requires that the South African law on accession in the case of pictura be developed such that good faith be a requirement for the transfer of ownership in this format. With the development and growing popularity of the art form the likelihood of this legal anomaly is becoming a greater possibility. Indeed, the popularity of British street artist, Banksy, has provided numerous examples of contested ownership, albeit within English law. Banksy artworks are collectable and financially valuable. Consequently, not only are they desirable but many of his street artworks are considered to be examples of British cultural heritage and as such may be worthy of protection and preservation. These cases highlight the growing need in South Africa to clearly identify who South African street artworks belong to and, to identify any South African street art that warrants cultural heritage protection. The legislation regarding the protection of South African cultural heritage resources has not yet been extended to any street artworks. Yet there are examples of street art in South Africa that meet the requirements for cultural heritage status or which have the characteristics of cultural heritage resources. The extension of cultural heritage resource status to South African street artworks that are culturally significant could assist in the protection and preservation of these resources. However, the effectiveness of the cultural heritage legislation, in particular the National Heritage Resources Act 25 of 1999, is limited. There are several problematic aspects in this Act. This is of great concern as the issues effect all South Africa’s cultural heritage resources (not just street art which may qualify for such vi status). However, these issues could be responded to through amendments to the legislation. Significantly, the National Heritage Resources Act seeks to deprive private owners of their property as it seeks to regulate what owners can do with cultural heritage property which they own. However, as it stands there are far too many challengeable issues in this legislation to justifiably deprive this property in terms of s25 of the Constitution of the Republic of South Africa, 1996. This renders significant portions of the National Heritage Resources Act inoperable.
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