A defamatory post takes about as long to write as this sentence. It can be screenshotted, shared and reposted like wildfire. The law’s only real answer to that speed is, structurally, one of the slowest things it does – it requires a trial to be run. Social media’s velocity (cheap, yet damaging) meets litigation’s glacial pace (which does not come cheap). Recent case law has dealt with this slowness, but a resolution seems far away, if not unlikely.

Defamation law offers two routes to different remedies. The first is an interdict – an order telling someone to stop saying something defamatory. Courts can grant that on motion: affidavits, no trial, comparatively fast, if you can show a clear right, an actual or reasonably apprehended infringement, and no better alternative. The second is anything that looks backwards rather than forward: damages (a monetary award) for harm already done, a retraction, an apology. That kind of relief is ‘unliquidated’ that has always, as a matter of ordinary civil procedure, needed a trial: pleadings, discovery, oral evidence, cross-examination. Trials take much, much longer: both to get a court date and to run it in court.

For a long time, courts treated that approach as basically settled. Then, in September 2023, a Johannesburg High Court judge, Wilson J, examined a case in Ndlozi v Media 241 in which the split seemed to be causing more harm than it prevented, and decided to adopt a hybrid approach.

Mbuyiseni Ndlozi, at the time a senior EFF leader and MP, was named, on a Daily Sun billboard, under the headline ‘MBUYISENI NDLOZI RAPED ME!’ The story ran on a tip-off from a confidential police source about a rape complaint against him. Ndlozi went to court seeking, in one application: a declaration that three statements were defamatory, an order to pull them down, a printed retraction and apology, and R120,000 in damages, or a referral of the damages question to oral evidence if the exact figure couldn’t be decided on the papers.

That last part is the shortcut. Wilson J called it a ‘hybrid procedure’: decide what can be decided now – was this defamatory, take it down – and send only the genuinely disputed, evidence-heavy part (the money, the apology) off to a later hearing, rather than forcing the whole claim to start over as a fresh trial action. Here, nobody disputed what was published or when; the only live questions were legal ones (was the sting defamatory, was it true, was it for the public benefit), which the judge could decide on the papers without hearing witness testimony. He said:

‘To decide otherwise would impede access to justice and over-complicate legal procedure to no valuable end. I see no reason why, if a case can be fairly decided using the hybrid procedure Dr. Ndlozi engages here, it should not be so decided. I also see no reason in principle why, if a litigant is entitled to final declaratory or interdictory relief in restraint of defamation on the undisputed facts, they should have to await the outcome of a contested trial on their unliquidated damages before they are able to obtain it.’2

Wilson J drew that entitlement from a comment the SCA itself had made two years earlier in EFF v Manuel3 – the Court there hadn’t struck down a similar hybrid approach outright, just commented that its judgment ‘should not be seen as endorsing’ it as general practice.4

Wilson J read that comment as permission for exceptional cases. He was careful about it. He expressly required no foreseeable prejudice, no real dispute of fact underlying the primary claim, and no procedural objection from the other side. On those conditions, he split Ndlozi’s claim: declared two of the three statements defamatory and ordered them removed immediately, and sent the apology and damages to oral evidence (an expedited approach), to be argued later on the existing affidavits standing as pleadings. Two remedies, one application. The judgment endeavoured to better harmonise a mismatch between how fast reputations are wrecked and how slowly the machinery designed to repair them turns.

Blocking the hybrid approach

The SCA has long been sceptical of such a hybrid approach. In a case decided two years before Ndlozi, being NBC Holdings v Akani (2021),5 a pension fund administrator had gone to court on an urgent, hybrid basis after a rival circulated a letter claiming a judge had found ‘strong evidence of corruption’ against it. The High Court granted relief in a form that Wallis JA, on appeal and writing for a unanimous five-judge SCA bench, plainly found troubling. His judgment reads as a warning: a litigant is entitled to ‘a single global remedy’,6 not in ‘a piecemeal fashion, granting some now while leaving open the possibility of further relief being claimed and granted later’.7 Further: ‘A claim for damages for defamation... was always unliquidated,’ he wrote, ‘and the damages could only be determined in proceedings by way of action, or possibly in special circumstances after hearing oral evidence in application proceedings.’8 An apology or a retraction, he held, is compensatory relief in exactly the same sense damages are, and needs exactly the same evidentiary foundation (oral evidence, typically the province of trials).9

NBC Holdings didn’t, however, slam the door on every conceivable hybrid arrangement – which is how Wilson J found room to attempt his own version two years later, on what he took to be materially different, genuinely undisputed facts.

But the SCA, in July 2024, shut that option in IRD Global v The Global Fund.10 The case itself turned on jurisdiction (an international NGO trying to sue a Swiss-based donor body over a report accessed in Johannesburg – the Court found no real connection to South Africa). But in the course of dismissing it, Baartman AJA addressed the retraction-and-apology-on-motion question head-on, and didn’t leave much room for Wilson J’s reading of Manuel: ‘It is now settled law that an apology or a retraction may serve the same purpose as an award of damages... However, that relief requires the institution of an action.’11 And then, explicitly: ‘I therefore respectfully disagree with the court in Ramos and hold that motion proceedings remain unsuited to deal with defamation allegations. A trial is necessary to determine the veracity of the alleged defamatory statements and thereafter an award can be made consisting of an apology, a monetary amount, a retraction or a combination of same.’12

Ramos13 – the 2021 High Court case that had granted a retraction and apology on motion, on the theory that no damages were being claimed – was singled out and disapproved. Wilson J’s Ndlozi judgment wasn’t cited by name, but the reasoning it depended on, that the Manuel concession left room for a considered hybrid approach, didn’t survive either.

Not everyone thought the SCA got this right, for what it’s worth. Dario Milo, a media law partner at Webber Wentzel, who was Manuel’s legal representative in that case, wrote in Daily Maverick in March 2022, calling the SCA’s approach ‘retrogressive’ and arguing the Court had confused two different things: the process of putting evidence before a court, and the process of testing it. His point was that the Plascon-Evans test already gives affidavit proceedings a mechanism for resolving factual disputes – decide on the respondent’s version unless it’s untenable – so there was no need to bar unliquidated defamation relief from motion court altogether. He ended by predicting that plaintiffs would be stuck in this ‘parallel universe’ where even retraction or apology was barred in motion proceedings, until someone took the fight all the way to the Constitutional Court.

Milo states that the Constitutional Court, in 2021, dismissed an appeal in the Manuel case, finding that it was not in the interests of justice ‘at this stage’ to hear the issue of using the motion procedure to obtain damages and apologies. Nobody has been successful in trying again, yet.

Instead, the line just kept on hardening. In Shezi v Sunday Times,14 decided in August 2025, a public-entity CEO tried to interdict corruption reporting and, separately, get a retraction and apology, on motion. Windell J struck the application from the roll for want of urgency on two main grounds. First, applying Manuel, NBC Holdings and IRD Global together as by-then uncontroversial authority: retraction and apology relief is unliquidated, and unliquidated claims go by action, full stop. Second, the interdict failed too, because the reporting was already public and restraining its future republication would have been an impermissible form of prior restraint on a story that had already run. Windell J stated that ‘Declarators of past defamation serve no practical purpose, amount to no more than abstract opinion, and risk being used as a springboard for future claims, giving rise to piecemeal litigation and issue estoppel.’15

The most recent precedent landed in June 2026. In Thembekwayo v Dhlomo16 entrepreneur Vusi Thembekwayo took radio personality Sizwe Dhlomo to court over years of social media posts calling Thembekwayo ‘a punk and a fraud’ who’d allegedly built his career on plagiarised content. Thembekwayo sought a final interdict, a retraction and an apology, on motion. The court dismissed the application on the same two grounds as Shezi. The interdict similarly failed because the posts had been up for years and restraining their future republication would do nothing but censor material already in the public domain.

Principle over practicality

Read the cases in sequence and the precedent set by the SCA is clear. No hybrid procedure. While defamation happens in an instant, the law’s only mechanism for repairing that, if defamation is found to have occurred, now runs at the snail’s pace of a trial: ordinary civil trials were struggling to be heard within half a decade, while more recent figures have put this around 2–5 years. An improvement, but still a very long wait. Stack the correct doctrine on top of the actual state of the court roll, and you get a right without much of a practical remedy attached to it, for anyone who can’t afford years of litigation to get there.

If a defamation damages claim falls below R200,000 and R400,000, respectively, that matter can be brought in the Magistrates’ and Regional Courts, but their waiting times are often even longer than those of the High Court. Most high-profile defamation matters end up in the High Court.

Notwithstanding the precedent, there is a case for something to be done – a dedicated, faster forum for defamation specifically. South Africa already runs something adjacent for the press: a self-regulatory ombud system, complaints resolved in weeks, with real if limited teeth – corrections, published rulings, apologies where warranted. Whether that model could be adapted more broadly to civil cases is doubtful. Milo, cited above, said this would be the position until a ‘brave soul’ challenges this all the way to the highest court. A brave soul with deep pockets and a lot of patient dedication.

About the author

During court term, hundreds of lawyers and members of the public move through the foyer of the Johannesburg High Court daily. The building processes litigation in bulk with unopposed motions on the ground floor, opposed motions and trials rising through the storeys above, many hundreds of matters often heard on any single day. Every one of those practitioners, moving in and out, circles the same fixed point: a bronze bust of a man, guarded by railings, mostly unremarked and unexplained.

Nobody really pays him much notice. Some might stop for a moment and give the sculpture a quick look. But it is not contextualised by any descriptive signage. He is just there, inherited. I don’t know since when, but it looks like he’s been there a while.1

The Johannesburg High Court is mostly hollowed out when it comes to art and judicial portraits. Unlike more superior courts, i.e. the Constitutional Court and the Supreme Court of Appeal, which make deliberate use of art and symbolism in their various spaces, this court’s walls are mostly empty, barring an odd picture or portrait row scattered throughout. The enchantment of law is lesser for it.

The Johannesburg Magistrates’ Court has Pierneef paintings on its walls. That’s serious art giving some gravity to the building. But the Johannesburg High Court is almost bare, apart from the gentleman in the foyer whose nameplate is now almost illegible.

The contrast with Pretoria is instructive. In the Palace of Justice, there are busts of Judge President BM Ngoepe and retired Judge President CF Eloff, by sculptor Herman McDonald, added to fashion the Pretoria court’s post-apartheid, democratic image.2 In the more contemporary High Court building across the street, judicial images show transformation happening as you descend — the many chambers portraits become progressively more diverse in the lower, more recent timeline, while higher up they revert to an unbroken line of white men. The judicial tea room there once held only portraits of white judges; that room has since been changed, I’m told.

The building itself

Before I get to identifying the man and what he symbolically represents, some context within which he stands, drawn from Dirk R van Zyl’s piece in Advocate3 of April 2010. The Johannesburg High Court was created by the same 1902 proclamation that established what is now the Pretoria seat, and was known first as the Witwatersrand District Court. Although the opening of the court was anticipated for 20 May 1902, the building itself was only inaugurated in 1910, the same year the Transvaal Colony ceased when the Union of South Africa was formed. It was designed by the architect Gordon Leith, at a time when Lord Milner wanted buildings across post-war Johannesburg to express the supremacy of the British Empire and the order and rationale of Victorian ‘enlightenment’. Above the entrance, a stained-glass coat of arms of the Transvaal Colony (1902–1910) survives — apparently the only one of its kind left in Johannesburg, the Rissik Street Post Office having carried the other example until it burned down in 2009.

Outside, on the building’s south-western corner, stands a statue of Carl von Brandis — commemorating a man who was not a judge, but a special landdrost of the Witwatersrand under whom the young mining camp’s disputes were once settled.

On to the Leonard bust.

James Weston Leonard

The man at the centre of all this commotion.

James Weston Leonard K.C. was born in Somerset East in the Cape Colony on 20 April 1853, and died in Brussels on 3 September 1909, after a long struggle with cancer.4 He was educated at Gill College in Somerset East, in the company of, among others, Richard and William Solomon; James Rose-Innes and W.P. Schreiner were pupils there not long after him. He read law at the now University of Cape Town, graduating with an LLB in 1876, and was called to the Cape Bar in the same year.

His career was considerable. At the age of eighteen he set out for opportunity to the newly discovered diamond fields at Kimberley. In the following year, 1872, he joined the staff of a newspaper in the Karoo, the Richmond Era. He was soon promoted to editor and held the position for three years, ultimately becoming the newspaper's proprietor. But this was not his only vocation during that time. At the end of 1876, Leonard was admitted to the Bar of the Supreme Court of Cape Colony. He sat in the Cape Legislative Assembly as member for Oudtshoorn from 1879 to 1888, and served twice as Attorney-General of the Cape Colony — first briefly in 1881, then from 1882 to 1884. He took silk in 1883, at the age of thirty.

The obituary to Leonard appearing in the South African Law Journal (cited above) includes an extract of his oratory from an 1884 speech to a public meeting at the Commercial Exchange in Cape Town, called to protest Transvaal encroachment into Bechuanaland — a speech remembered, and reprinted there, as an assertion of British supremacy in South Africa.

After the discovery of gold, Leonard moved to Johannesburg in 1888 and quickly became the leading advocate at the young Johannesburg Bar. He was a prominent champion of the ‘uitlanders’ (British) cause against the Kruger government, and was a member of the Reform Committee at the time of the Jameson Raid of 1895–96. He was imprisoned by the Kruger government in Pretoria gaol along with fifty-eight other Johannesburg men implicated in the Raid, and was released only on payment of a substantial fine and an undertaking to stay out of politics for two years.

He later qualified at the English Bar, practising in London intermittently between 1897 and 1902, before returning to Johannesburg, where he reportedly built one of the most lucrative practices in the country. He avoided standing again for elected office, though his sympathies remained with the Progressive Party of the Cape Colony, which supported pro-imperialist policies.

His Law Journal obituary records his rhetorical gift. He is described as a ‘silver-tongued’ man whose eloquence and persuasiveness were what the bench itself chose to eulogise. The University of Witwatersrand used funds from a Leonard Memorial Fund from 1921 to establish the Leonard Memorial Law Library in his name, which grew to a collection of over 2,000 volumes that was, in the end, destroyed entirely in the fire that gutted Wits’s Central Block on 24 December 1931.5

Ok, what’s next

Interesting man, this Leonard. A gifted and influential mover and shaker, and imperial loyalist. Rich silk at 30. But still as relevant as his central placement in the country’s busiest court suggests?

As a symbol, for those who do not know his history, he might stand as a figurehead and reminder of the oppressive legal past. Having come to learn about his life, I hardly feel he planted seeds for achieving a more just society, but was perceived as an aspirational figure of success in the city. He impressed his peers.

As we move toward achieving the ideals of our democratic constitutional order, this sculpture seems to contribute little or nothing to advancing those ideals.

I’m not suggesting what should replace the sculpture, or whether it should be moved rather than removed, recontextualised rather than erased. But I don’t think, having gone through what can be said about him, that James Weston Leonard’s presence in that foyer can be treated as nothing to bother about. It might be time we looked at him properly and asked why it is he who still stands there.

Liked this? See more of my pieces on the aesthetics of law.

About the author and publication

We learn in school that South Africa has three capitals. Pretoria is the executive capital, home to the Presidency and the Union Buildings. Cape Town is the legislative capital, home to Parliament. And Bloemfontein is the judicial capital, the seat of the courts.

The problem is that the third answer is no longer true in any meaningful sense. It persists as an inheritance that nobody has bothered or dared to revise. The Constitutional Court, South Africa’s highest court, sits in Johannesburg, a move that became symbolically decisive when it moved into its purpose-built building in 2004. The country’s constitutional order is most clearly and most ambitiously expressed through its building on Constitution Hill. And there are problems with continuing to give Bloemfontein this symbolic weight.

How Bloemfontein got the status

The story of how South Africa acquired split capitals is a story of political deadlock. In 1909, as the four colonies — the Cape, Natal, the Transvaal, and the Orange Free State — were being consolidated into a union, competing delegations had to agree on where to vest symbolic authority. Pretoria was the Afrikaner camp’s preference as an economic centre. Cape Town, the ‘Mother City’, was the British option. Bloemfontein sat geographically between them, a neutral enough space that nobody felt strongly about either way.

The compromise that emerged — attributed to Jan Smuts — was to split the main functions of state. Cape Town would house Parliament (the legislative capital). Pretoria would house the executive (the administrative capital). Bloemfontein, by elimination rather than enthusiasm, became the Appellate Division of the Supreme Court, and became, de facto, the judicial capital.

Researchers Lochner Marais and Chitja Twala have studied Bloemfontein’s capital status closely in their article Bloemfontein: the rise and fall of South Africa’s judicial capital. They observe that under the constitutional order of the Union, that of parliamentary sovereignty, the legislature was supreme, and the courts were its servants, not its co-equals. The Houses of Parliament (1884) and the Union Buildings in Pretoria (1913) each reflected institutions whose authority was understood to be foundational. The Bloemfontein Appeal Court, by contrast, opened only in 1929 — a full nineteen years after union. The judicial ‘capital’ came mostly as an afterthought.

One further yet important detail that tends to go unremarked: South Africa’s capitals are not declared by any law. They are not the product of legislation or constitutional provision. They are the result of political designation and the product of state and popular rhetoric. This matters for the argument that follows.

The building they built, and what it says

The Supreme Court of Appeal in Bloemfontein is a sandstone building designed in a Renaissance or Roman style by then-Chief Government Architect J.S. Cleland. It expresses colonial confidence. The central portico entrance features sculptured stone with a Roman helmet at the top, described in the court’s own booklet as a biblical symbol — part of the ‘armour of faith’, a reference to Paul’s letter to the Ephesians and his injunction to put on the whole armour of God. Below it, a burning lamp flanked by flaming torches of truth signifies steadfast faith in God and law as a beacon in times of darkness. Engraved keys below invoke the gates of heaven. The side entrances extend the symbolic idiom: Minerva, Roman goddess of justice, law, strategic warfare, and the arts, appears at the south entrance alongside her sacred Owl of Wisdom; Jupiter, king of the Roman gods, at the north. Carved wooden frames above the doors show the scales of justice. The court’s booklet then declares that all of these symbols ‘carry one in thought to the great Roman Law and to other common ancestors of modern systems of jurisprudence.’ Christian theology and Roman mythology are bundled together as a single European inheritance, their differences dissolved into a confident assertion of Western legal origins.

The court’s booklet says that the building’s solemn presence suggests ‘its separation from everyday matters and to elevate justice to a sacred realm.’ The building is inward, elevated, set apart.

It is all very deliberate. All the symbolic additions seek to locate law’s origin in ancient Europe, in the classical and biblical traditions of a colonial legal culture, and stand somewhat paternalistically towards African customs and worldviews and, by extension, its people. One cannot separate these design choices from the thinking of white supremacy that shaped the colonial and apartheid enterprises. The building was made to stand as a righteous symbol of the racist and sexist legal culture of its time.

Then came the National Party in 1948. Political interference in the composition of the Appellate Division’s bench deepened public distrust in the court. As Marais and Twala document, it is ‘certain that the political manoeuvring to control the Appeal Court damaged its image. And it gave Bloemfontein a bad image: it became known as the judicial bastion of the apartheid government, the place where apartheid was legally enforced.’

The stigma persisted. It was actively considered during the negotiated constitutional settlement of the early 1990s. A deliberate decision was taken to separate the new Constitutional Court from the Supreme Court of Appeal: the Constitutional Court was not to be in Bloemfontein, and the SCA was not to be moved to Johannesburg. Marais and Twala conclude that the stigma attached to the Bloemfontein court was one of the major reasons for locating the Constitutional Court in Johannesburg, whose reputation, beyond its economic weight, also carried the moral authority of having been, alongside Soweto, a centre of resistance against apartheid. The transformation of the Old Johannesburg Fort into Constitution Hill speaks to the transformation needed in society.

The significance of (split) capitals

Before I proceed, a quick word on the significance of capital cities as symbolic projects. Marais and Twala argue that capital cities are instruments of nation-building: the power of the nation-state is projected through the spatial layout and urban landscape of the capital, and authority is conveyed by the city’s architecture, monuments, street names, and public spaces. In Africa, most capitals are the product of colonial control, and colonial architecture was used in them to symbolise the power of the coloniser. They remain, even in post-colonial democracies, the primary sites where symbolic changes — in architecture, in monuments, in official names — are deployed to articulate independence, even as inherited patterns of segregation persist in the urban fabric underneath.

Split capitals, Marais and Twala further note, are typically the outcome of political compromise during periods of transition. The separation of judicial from executive and legislative capitals has often been designed to signal the independence of the courts from political power. In Germany, after reunification in the early 1990s, the government relocated back to Berlin, but kept its highest court in Karlsruhe — a deliberate spatial statement that the judiciary would not be absorbed into the political centre. Bolivia maintains La Paz as its administrative capital and Sucre as its legal one. The Netherlands presents a similar division. In each case, the split encodes something the unified capital cannot: a claim that law stands apart from the political moment that produced it.

South Africa’s own split capital arrangement tells this kind of story. But it also tells the story of what happens when a political compromise outlives the conditions that created it.

The missed opportunity

Here is where the story becomes especially pronounced. In 2004, the Constitutional Court building opened in Johannesburg. It announced, in no uncertain visual terms, that the order of society had changed, or that change had been set in motion. Then, between 2005 and 2011, the Supreme Court of Appeal underwent its own physical building extension — a substantial undertaking adding a new main courtroom and additional chambers.

One should also take into account that the SCA (previously the Appellate Division) was established in 1910 as the final court of appeal for South Africa, making it the country’s apex court for over a century. With the interim Constitution in 1994, a dual-apex system emerged: the Constitutional Court handled constitutional matters, the SCA retained jurisdiction over everything else. That arrangement held until 2013, when the Constitutional Court’s jurisdiction was expanded to include issues of significant public interest, effectively giving it universal jurisdiction and completing the SCA’s demotion to second-in-charge judicially.

The SCA building’s extensions were done when it was still a dual apex court. It was thus an opportunity to symbolically incorporate the virtues and transformative spirit of the new constitutional order. The Constitutional Court had just introduced a radically different architectural vocabulary: a building that drew not from Rome or Renaissance Europe but from African communal traditions and a modern, universal view. The SCA had the chance to enter into dialogue with this new articulation of justice, if not a full reconceptualisation of it.

That was not done. The architectural firm responsible acknowledged that ‘one could argue to accept a design approach of contemporary nature’ but that they (including the judges of that court) chose instead to accept ‘the current architectural qualities situated in form, scale and materials used in the existing building.’ The extension reproduced the sandstone, the proportions, the atmosphere. The apartheid-era coat of arms was retained in two of the three existing courtrooms. The new courtroom, while featuring the post-1994 coat of arms, retained the austere, dimly lit atmosphere of the old — evoking a fear-based respect for the gravity of the law rather than the openness the Constitution envisions.

If Bloemfontein wanted a fighting chance to remain the judicial capital, it must have foreseen the need to symbolically represent the Constitution and the transformation it mandates. But that it retained its identity is telling. The Bloemfontein and Johannesburg courts represent competing legal cultures: a conservative culture and a progressive, transformative one.

There are many examples of historic buildings transformed by bold modern extensions into something neither approach could have been alone. A striking example is the Museum of Military History in Dresden, Germany. Originally built as an armoury in 1876, used during the Nazi period and later closed, it was reopened in 2011 with a visionary extension by Daniel Libeskind: a sharp steel and glass shard thrust through the neoclassical facade, creating a dialogue between old and new that forced the building to reckon with what it had been. The architect described the existing building as representing ‘the severity of the authoritarian past’ and his intervention as reflecting ‘the transparency of the military in a democratic society.’ The same cannot be said for the Bloemfontein court.

The court building, gated like a fortress and devoid of public accessibility — photography generally not permitted, visitors probed upon entry — sends an implicit message of guarded exclusivity that sits uneasily with the constitutional spirit it serves.

What Johannesburg offers instead

Wessel le Roux, the South African legal scholar whose work on the architectural dimension of post-apartheid constitutionalism is essential reading on these questions, describes the Constitutional Court building as ‘an important aesthetic index of, or aesthetic analogy to, the transformation of post-apartheid law and legal culture.’ Le Roux identifies what he calls an ‘architectural dissonance’ in the post-apartheid legal order: the old courts and their inherited symbolism remain standing and in use, while a new constitutional vocabulary insists on a different imaginary. The question is which vocabulary should set the tone.

The Constitutional Court makes the case for itself through every design decision. Unlike the SCA, which affirmed the parliamentary sovereign status quo without reaching beyond it, the Constitutional Court operates primarily as a transformative aspiration. It gives architectural form to the legal culture that is yet to be fully realised. It does not describe South African constitutionalism as it is; it prescribes — aesthetically, spatially, jurisprudentially — what it ought to become.

Albie Sachs, who was part of the Court’s first bench, describes in Art and Justice the building’s consciousness of ‘justice under a tree’ as communicating something ‘between subliminal and liminal’. The tree, as the Court’s logo and governing spatial metaphor, presents justice not as the property of Roman law, not as a Roman goddess blindfolded and detached, but as something that grows, that shelters, that requires tending. It roots constitutional authority in African communal practice while speaking to a planetary scale of interconnection. As Sachs explains, the logo had to convey the Court’s ‘place in Africa’, moving away from ‘clichéd images of the scales of justice and Roman columns.’

Le Roux observes that this building is a ‘physical signpost’ of post-apartheid legal theory. The transformed site is not gated off from the surrounding community. This was a deliberate design decision, and it should be understood as a constitutional one.

The shift has already happened, but not officially

Because South Africa’s capitals are not declared by law but are the product of political designation and popular rhetoric, the question of how to change the judicial capital is a question not of legislation but of narrative.

However, formal political announcement of a capital shift by a minister, a department, or a political party, would further pull the judiciary into political contestation at precisely the moment when the courts are carrying an extraordinary constitutional burden. The judiciary should not be a prize claimed by politicians. Its symbolic centre should rather not be the subject of parliamentary debate or executive proclamation.

The judiciary itself may make such a proclamation, but has likely not done so in all the years since the establishment of constitutional democracy for other reasons. Legal culture changes incrementally as it remains conservative when it comes to change. The courts avoid upsetting the system of hierarchy, convention and stability.

Alternatively, the organisation that exists to tend the national brand, Brand South Africa, the official custodian of South Africa’s nation brand incorporated as a Trust and a schedule 3A National Public Entity, could reach this conclusion through its own processes of research and public communication, and announce it not as a political act but as a recognition of what is already evident. It would cause a buzz. It would generate discussion. And then it would settle, and become accepted, and the curriculum would eventually be updated. We are working with matters of the national consciousness that need to be tended to.

Bloemfontein would take a symbolic knock, and no doubt it holds on to its status as a matter of pride. But — no shade — it does not really compete in the realm of national attractions. It remains an important, if not key, jurisprudential centre. The building is well-maintained compared to other courts. But the city’s claim to judicial capital has been honorary, and not productive, for some time.

This is not a proposal for change but an acknowledgment. The Constitutional Court is South Africa’s highest court. Constitution Hill in Johannesburg is the physical signpost of the country’s constitutional order at its most ambitious, its most carefully imagined, its most deliberately African, universal expression.

Johannesburg is already South Africa’s judicial capital. Here’s to acknowledging that.

About the author

The following reading was prepared for the Climate Litigation Reading Group (CLiSA), for a session I presented on 24 June 2026 at the Thulamela Chambers.

The law as a visual enterprise

My doctoral thesis begins with the claim that the law is a story we tell, and that these stories are subject to change, renewal, and invention. The public encounters law primarily not as the written content of rules, but as Wessel le Roux puts it, in an aesthetic, a “coalescence of images, rhetorical forms, metaphors and other tropes, perceptual modes and sensibilities, dramatic tensions, sensory impressions, and feelings.” Law relies on symbol, spectacle, spatial arrangement, and ritual not merely to project its legitimacy, but to constitute the experience and persuasive legitimacy of legality.

The thesis pursues this claim that law is inescapably a visual enterprise, along with other forms of intellectual persuasion, across several sites: the foundation rhetoric and visual symbolism on which the post-apartheid constitutional order rests, involving the architecture of the Constitutional Court and the apex courts that preceded it, these courts’ art collections, and the virtual spaces through which the law now projects itself. But the constitutional order’s organising image, around which each of these investigations turns, is a tree. Specifically: the tree of the Constitutional Court’s logo, and what that tree demands of us as lawyers, scholars, and judges at this particular historical moment.

What follows is not a summary of my thesis, but rather a distillation and further development of one argument within it – the one I think matters most for climate litigators and the judiciary – and an invitation to take the argument seriously as a jurisprudential resource.

The tree is part of our constitutional philosophy

When the first bench of the Constitutional Court designed its logo in 1995, it deliberately turned away from the inherited symbols of Western law: no blindfolded goddess, no scales, no sword, no Roman columns, no gavel. In their place, they chose a group of people standing together under a tree. That image has since anchored the Court’s architecture, its art collection, the design of Constitution Hill. The image was adopted in the Constitutional Assembly’s public campaign promoting democratic constitutionalism and a tree is placed above the preamble of the famous Constitution booklet. Subtly, but consistently, it has been pressed as the image for our constitutional order.

I have argued elsewhere [link forthcoming, Advocate journal] that this image is better understood as a constitutional philosophy than as a mere logo. The tree shelters the people under it, but the people also tend the tree; the protection runs both ways. The image convenes a plural public under a common canopy and, crucially, plants the law in the living world rather than elevating it above it. The human figures alternate in race and appearance of gender, and the circle that contains the image is left open. All of this is deliberate. It signals broad inclusion.

What I want to focus on here is the dimension of the image that is most directly relevant to environmental litigation: its refusal of anthropocentrism. The people in the logo do not stand over nature; they stand within it. The law they instantiate is not law for people administered above the natural world, but law exercised in relation with it. That is a quiet but radical claim, and it has been standing in the Constitutional Court’s two buildings since 1995, waiting to do legal work.

Environmental ubuntu: the philosophy the image encodes

The philosophical concept that underpins my claim to justice under a tree as a justiciable concept is, if not the international concept of interconnectedness, the more local iteration that Edwin Etieyibo calls environmental ubuntu. The familiar reading of ubuntu – “I am because we are” – may be (mistakenly) understood as anthropocentric: it describes the interdependence of human beings with one another as central to legal being in the world. Etieyibo argues that this anthropocentric reading is philosophically inadequate and practically insufficient. African ontology, he contends, is energy-oriented, perceiving the world through vitality and liveliness; it carries within it the resources to extend the relational logic of ubuntu beyond the human community to encompass all living beings and the ecological systems that sustain them. ‘We’ is not limited to the human.

Environmental ubuntu is, in essence, an ethic of shared concern that treats individual flourishing as genuinely possible only when the interests of all – human and non-human alike – are enhanced. It can be valued as an African moral contribution to a global necessity. By other names, the concept and world-understanding is evident in indigenous cultures and spiritualities around the world, and, increasingly, in modern philosophical shifts.

This interconnectedness, I argue, is what the tree image holds. Trees have long been read as symbols of vitality and self-regeneration, of peaceful cohabitation, of that which is solid and in good health. As the anthropologist Laura Rival puts it, trees stand for nature in the sense of environmental health and community welfare. The Constitutional Court’s tree does not merely represent an inherited cultural practice of gathering and deliberation under trees (though it does that too, as a visualisation of the lekgotla, and imbizo, as the more immediate reason the symbol was adopted in the first place, to advance indigenous justice practices and worldviews). It makes a normative claim by its very nature: that law must aspire to durability, vitality, and peaceful coexistence with the natural world. In the Anthropocene, that claim has become urgent in a way the Court’s founders could perhaps only half have anticipated.

The law in the Anthropocene

The concept of the Anthropocene – the geological epoch in which human activity has become the dominant force shaping planetary conditions – is no longer merely a rhetorical device for environmental advocates. As Louis Kotzé writes, it has moved to the core of epistemological and ontological enquiries about the legal systems that govern human behaviour on earth. The societal ordering maintained by anthropocentric law under former Holocene conditions is no longer tenable; the biospheric conditions that allowed it have already been irrecoverably disturbed.

Tim Stephens puts the intellectual consequence plainly: Enlightenment thinkers assumed a separation of the natural and human domains, but it is now clear that we have always been in a social-ecological system that is intermixed, interdependent, and inseparable. Andreas Philippopoulos-Mihalopoulos describes what he calls an “Anthropocene-turn” in legal thinking – a new language and theoretical underpinning for regarding the legal system, one that treats the legal order not as a human structure imposed on nature, but as a connected field in which everything affects and is affected by everything else. Indigenous cultures and worldviews, long dismissed by anthropocentric legal orders, offer precisely the relational ontologies that a sustainable jurisprudence requires.

The South African legal scholar Melanie Murcott has developed the most directly applicable framework for our purposes: her legal theory of transformative environmental constitutionalism. Murcott’s argument is that judicial application of this theory “could yield law more responsive to both the struggles of vulnerable people and the rapid deterioration of the Earth system in the Anthropocene, as related concerns.” Crucially, she frames social, environmental, and climate justice as interconnected rather than compartmentalised – a socio-ecological systems perspective that breaks the habit of treating environmental rights as a specialist subcategory of constitutional law rather than as one of its structural foundations.

Saskia Vermeylen pushes the ontological implication further. The turn to non-human subjects – fauna, flora, rivers, mountains, the sky – is not a sentimental addition to existing law but a challenge to the law’s deep entwinement with anthropocentrism. By limiting the law to human language, she argues, nature is excluded from political life and legal agency. Nature communicates through its own aesthetic way of signification, requiring our attentiveness. A dead fish in a polluted river, a tree felled without just cause, declining and diseased populations of natural life forms – these are not merely evidence of human harm; they are, on this reading, communications that the law has not yet learned to hear. Accepting non-linguistic representations as a form of legal language opens new possibilities for extending sovereignty beyond both the state and the human.

Lynda Collins makes the litigation-focused corollary explicit: most environmental litigation currently revolves around the purview of environmental (or administrative) legislation, constraining judges within the boundaries of existing law that is “largely concerned with facilitating, or at best mitigating, industrial activity.” Judges often defer to governmental expertise. Yet this deference has contributed to the existential crises now confronting the planet. As part of the project of transformative constitutionalism, judges have been liberally enabled to pronounce on human rights abuses and inequalities; a more ecologically responsible jurisprudence is as important, if not more.

Justice under a tree is, in essence, a counter to environmental apartheid – the ongoing severance of a healthy environment from societal consciousness, enforced by spatial zoning and by the logic of produce, consume, burn, pollute, discard. That severance is not evenly distributed. The communities most devastated by ecological degradation are those already on the margins; the plundering of the natural world and the plundering of people proceed together.

Section 24 and its limits

South Africa’s constitutional dispensation is grounded in three fundamental values – human dignity, freedom, and equality – that relate primarily to the human person and not to the environment. Section 24 of the Constitution grants everyone the right to an environment not harmful to their health or wellbeing, and to have the environment protected for the benefit of present and future generations. This was, as Anél du Plessis has shown, a watershed moment in making the law more environmentally minded; it influenced the environmental provisions of Zimbabwe and Kenya’s constitutions and placed far-reaching obligations on governmental authorities.

But it is not enough. South African courts have mostly focused on what is potentially harmful to physical human health, and section 24’s reference to “everyone” has never been definitively extended through legal interpretation to encompass living things beyond the human. Du Plessis herself, though she argues for the broadest possible reading of “well-being” – a term that can carry spiritual, psychological, aesthetic, cultural, and relational meanings – stops short of advocating environmental rights as an end in themselves, beyond human benefit. The National Environmental Management Act follows the same frame, orienting the whole legislative structure toward the benefit of present and future generations rather than treating the environment as an end in itself. The Constitutional Court is now, in 2026 (in a challenge brought by the South African Hunters and Game Conservation Association), considering whether a statutory definition of animal “well-being”, introduced to the National Environmental Management: Biodiversity Act (NEMBA) as amended in 2022, is constitutional.

Christopher Stone’s foundational 1972 article – “Should Trees Have Standing?” – argued that granting legal rights to the environment, both in its parts and as a whole, is neither fanciful nor devoid of operational content, but legally achievable and normatively necessary. His argument was that natural objects should be able to institute legal proceedings in their own names, that injury to them must be considered by courts, and that any remedy must benefit the natural entity itself. As Klaus Bosselmann argues, there is growing support for the hypothesis that “ecological integrity must attain the same fundamental normative status in law as human rights, the abolition of slavery, the rights of women, and the rule of law.” If ecological integrity were so established, it would be read in conjunction with existing anthropocentric norms – balanced against them where necessary, but no longer subordinate to them by default.

This is the direction the law needs to move. It only moves if we take it there.

Justice under a tree as a justiciable concept

As far as the case law reveals, the phrase “justice under a tree” appears in only one judgment, by the Supreme Court of Appeal (Van Breda v Media 24 Limited; National Director of Public Prosecutions v Media 24 Limited from June 2017), and there it enters through an article by former Deputy Chief Justice Dikgang Moseneke, invoked in support of the principle of open justice. That single instance is telling in two ways. It confirms that the concept has already found its way into judicial reasoning, even if obliquely; and it shows that when it did, it was used to do constitutional work well beyond mere symbol – to support a substantive rule of law value. The idea is capacious enough to carry many such concerns: openness, transparency, participation, and responsiveness. Its environmental import, however, has not yet become written legal precedent; for now, it operates as visual jurisprudence – embedded in the Court’s aesthetic, but not yet extracted into the normative language of judgments.

The proposition I want to put to (environmental) lawyers: justice under a tree should be advanced in litigation as an underlying concept of what our constitutional order envisions. Because it is.

The proposition needs to be made carefully, and I do not make it as a claim that the symbol alone generates enforceable rights. I make it as a claim that the symbol is constitutive of the constitutional aesthetic – the distribution of the sensible, in Rancière’s terms, that determines what can appear and be thought within the legal order – and that it therefore properly informs the normative basis on which courts develop environmental jurisprudence.

The argument has several mutually reinforcing steps.

First, the symbol is not a mere decoration. It is a key part of the transformative constitutional project that has societal change as its very purpose. The Court’s logo, its symbolic architecture on Constitution Hill and further expression through the Court’s art collection, and the foundational public communication of the constitutional project evince this. The Constitutional Court justice Yvonne Mokgoro chose green robes for the bench to represent the earth in line with the concept of justice under a tree. These are not decorative decisions; they are jurisprudential ones.

Second, the symbol encodes a specific normative claim. The image of people standing under a tree, as I argue, carries an environmental ubuntu – an ethic of interdependence that extends beyond the human community to encompass the living world on which it depends. That claim is available to be drawn out of the symbol and given legal content. It does not require an amendment to section 24; it requires an interpretive act of the kind courts perform routinely when developing the normative content of constitutional rights. Ubuntu is accepted as a constitutional norm even without it being included by name in the Constitution. The academic and political concept of “intersectionality” has also become justiciable and has found its way into judgments of the Constitutional Court. There is no reason, to my mind, that justice under a tree couldn’t be developed in a likened way.

Third, there is precedent for exactly this kind of move. The Johannesburg Principles on the Role of Law and Sustainable Development, adopted in 2002 by chief justices and senior judges from around sixty countries at a symposium hosted by Chief Justice Chaskalson, affirmed an environmental emergency and called on judiciaries worldwide to develop legal precedent with urgency. Ecuador’s Constitution explicitly draws on indigenous “cosmovisions” in its recognition of the rights of nature, specifically by enshrining the concepts of Pachamama (Mother Earth) and sumak kawsay (Kichwa for “good living” or communal wellbeing). The legal infrastructure for a more-than-human jurisprudence is being assembled across multiple jurisdictions; the question is whether South African courts will contribute to its burgeoning.

Fourth, and most directly: judges are not merely spectators of the climate and ecological crises. Judges have shown, across the project of transformative constitutionalism, that they are empowered to develop constitutional norms – not to defer responsibility to other spheres of government, but to give shape and legal force to the values the Constitution embodies. The visual and symbolic foundations of the Court are one source of those values. Stone’s appeal to the judiciary still resonates: the court may be at its best “not in its work of handing down decrees, but at the very task that is called for: of summoning up from the human spirit the kindest and most generous and worthy ideas that abound there, giving them shape and reality and legitimacy.”

An invitation

I close with a proposal rather than a conclusion, because this is the kind of argument that requires collaboration between scholars and practitioners to develop into something a court can use.

Justice under a tree is not only a description of where communities have historically gathered to deliberate and judge. It is a constitutional philosophy – one that the founders of South Africa’s post-apartheid legal order embedded in the most visible symbols of the constitutional project. That philosophy carries an environmental imperative: it refuses the anthropocentric conceit that law is law for people only, and insists instead on a relational ethic of interdependence that extends to the living world. Various scholars have contributed to a coherent conceptual framework for South African constitutionalism to serve as a transformative environmental force within its broader aims of justice. The image distils it.

What remains is for practitioners to carry it into pleadings and heads of argument, and for judges to have the intellectual resources and the vocabulary to receive it. This piece is an attempt to help build those resources. The case law that will matter most in the age of environmental crises has yet to be written. But the symbol from which it could draw its deepest authority is already in the minds of every lawyer who has ever appeared at Constitution Hill. The purport of the concept of justice under a tree must not be undervalued.

About the author

There is a small piece of theatre that every South African advocate and court-appearing attorney performs. We rise; bow; we wait to be ‘seen’; ‘beg’ to hand up a draft; ‘pray’ for relief; and we address the bench as ‘My Lord’ or ‘My Lady’ in the High Court, and the magistrate as ‘Your Worship’. The words are spoken so reflexively that their strangeness has worn smooth for most. One might get used to them (after initial apprehension of the oddity), and one does not fight the convention. But the forms are worth pausing over, because they are not neutral courtesies. They are, in the semiotic sense, signs — and the order they signify is not the one our Constitution announces.

Court is a theatre of what might be called the sublime: a register, beyond ordinary reason, in which authority is staged rather than argued.1 Aoife Monks observes that the uniform dress and conduct of judicial officers efface the individual and conjure a ‘singular face of the law’ — law’s ‘sublime theatricality’.2 Forms of address belong to that apparatus. As Michał Dudek and Mateusz Stępień note, no other secular institution depends on symbol, ritual and speech to the degree courts do, and titles in particular widen the ‘power distance’ between bench and bar within Foucault’s ‘microphysics of power’.3 The honorific is laden.

The genealogy is telling. ‘Lord’ and ‘Lady’ descend from the Old English hlāford (‘loaf-ward’, guardian of bread) and hlǣfdige (‘loaf-kneader’) respectively. Lord later became understood as ‘master of a household, ruler, feudal lord, superior, husband, God’.4 Lady as ‘mistress of a household, wife of a lord’.5 Oxford English Dictionary puts it more bluntly: ‘The male (‘or female’) head of a household; a man/woman who has authority over servants, attendants, or slaves.’6

After the Norman Conquest, ‘lord of the manor’ named a feudal authority figure whose force derived from the existence and operation of a manorial court.7 The address we still use is thus a survival of a hierarchy rooted in landholding: it hails the judge as a feudal proprietor of order. In a country whose Constitution is animated by the undoing of authoritarian land control and by transformative constitutionalism,8 that is a peculiar thing to keep saying aloud.

‘Your Worship’ carries a different but related charge. The word is ‘worth-ship’: the ascription of worth to an office-holder. But the same root yields the worship owed to God. In the legal order from which South Africa inherited its court culture, that connection was not merely linguistic — the Crown derived its authority from God, and the magistrate derived his from the Crown. The Constitution has since displaced that chain, locating supreme authority not in the divine but in the Constitution itself and the people it serves. Yet something of that charge persists in the form itself — the ecclesiastical, sublime quality at the heart of courtroom performance: law borrowing the affect of the sacred to naturalise its authority. The written law, as Peter Goodrich puts it, ‘is nothing without its liturgical setting … its animation in the hands and rites of lawyers’.9 The titles are part of that liturgy.

‘My Lord’ and ‘My Lady’ entered the South African courts with the English reception that accompanied the Union of South Africa in 1910, and were carried into the democratic constitutional order. The Constitutional Court broke with the script. Just as Justices Yvonne Mokgoro and Albie Sachs and their brothers and sisters oversaw the design of that court that signalled a deliberate reorientation away from a Eurocentric, hierarchical model of justice, the Court replaced ‘My Lord/Ladyship’ with the gender-neutral ‘Justice’ — a small but hardly inconsequential rewriting of the colonial–apartheid script of address. The Supreme Court of Appeal followed: by practice directive (first 2007, restated 15 November 2014) it abolished ‘My Lord’, ‘My Lady’, ‘Your Lordship(s)’ and ‘Your Ladyship(s)’ in English, directing instead that the bench be addressed as ‘the Court’ and individual members as ‘Justice’ followed by surname.

The High Courts, and the Magistrates’ Courts below them, were left behind. They retain ‘My Lord/Lordship’, ‘My Lady/Ladyship’ and ‘Your Worship’. The result is the contrasting oddity that practitioners have remarked on for decades. Why must the High Court and Magistrate courts remain stuck in feudal English? ‘These contrasting approaches are as confusing as they are interesting, and result in frequently confused men and women who address commissioners in the small claims courts as “Your Majesty”’, Tasneem Antulay remarks, asking why should ‘Your Majesty’ raise a snigger while ‘Your Worship’ does not.10

Convention carries the law. The legal order sustains its legitimacy in part through continuity: it changes slowly, by design, because law’s authority rests not only on reason but on the accumulated weight of forms — on what Adam Gearey calls the ‘panoply of courtroom markers’ that impress upon the observer ‘the majesty of the law, demonstrating law’s history, autonomy and continuity’.11 Abrupt change punctures that spell; incremental change renews it. A court building as theatre, Linda Mulcahy argues, can associate law with conservative tradition or signal a commitment to change; the risk of the former is that institutions of justice become ‘frozen sites of nostalgia’.12 One can respect the value of incremental change and still insist that this particular relic of address has outlived its time.

The honour we extend is owed not to the individual on the bench but to the role he or she — or better, they — occupy, as a sign of respect for the rule of law. In America, Judge Benjamin Beaton argues against ‘Your Honor’ as ungrammatical and quasi-noble, preferring the functional ‘Judge’.13 Aaron Walayat replies to Beaton that titles are a form of what Confucius called li (ritual) and Adams the ‘language of signs’ — the legal ‘play’ is the thing, and a depersonalised honorific — something beyond the bare ‘Judge’ (making a case for ‘Your Honor’) — reminds the presiding officer that she speaks for the law, not for herself.14 This is, for us, an aside: the South African choice has apparently been made. Our apex courts did not reach for ‘Your Honour’ (in Afrikaans, ‘U Edele’). They adopted ‘Justice’ — the apter term because it names what the institution is supposed to stand for.

That choice belongs to the same careful remodelling of the judicial playbook by which the Constitutional Court placed justice — figured as ‘justice under a tree’, the deliberative, communal, interconnected and rooted practice — at the symbolic centre of the constitutional order, in place of the scales, the sword, the gavel and the iconography of older societal orders, and those conveyed in popular global media.

One obstacle might arise: does extending ‘Justice’ to the High Court appropriate for its judges a higher style? The objection holds only within the hierarchical logic of the profession, but it shouldn’t be reserved for the highest. ‘Justice’ is not a rung; it is a description of office shared by everyone who exercises judicial power, and nothing in the apex courts’ usage marks it as a rank to be guarded.

There is a further, constitutionally informed reason to prefer ‘Justice’: it is gender- and sex-neutral. The High Court forms compel a gender or sex classification at every address — ‘Lord’ or ‘Lady’ — obliging counsel to assign one to the judge each time they rise.

When British Columbia’s superior courts abolished ‘My Lord’ and ‘My Lady’ in 2021, they did so on this ground: the provincial bar president called gendered address a ‘colonial-classist throwback’, and Lisa Nevens noted that a judge’s gender ‘is as irrelevant … as their race, religion, sexual orientation’, yet ‘is referenced every time a justice is addressed’.15

Our Constitution entrenches non-sexism as a founding value; furthermore, we are neither a theocratic nor a monarchical state. A form of address that demands a daily, binary sex-marking of the bench in colonial grammar— and that makes no comfortable provision for a judge who identifies as neither ‘Lord’ nor ‘Lady’ — is out of step with the order it serves. ‘Justice’ dissolves the problem without awkwardness.

Change is, in any event, already stirring from within. I have been in court with an acting judge who indicated that he would prefer to be addressed as ‘Judge’, though without forcing the point. I know of senior–junior counsel who have quietly taken to addressing High Court judges as ‘Justice’ — a subtle but notable signalling of the need for reform, which works only once one is senior enough that the bench will not intervene. (It is worth mentioning that the accepted address out of court, in chambers or in any forum off the record, is already simply ‘Judge’; and that ‘Counsel’ — a comfortable, all-encompassing term for an increasingly diverse Bar — has long done its work without distinction of rank or sex.)

The remedy is administratively trivial. It requires only a practice directive — for a Division as a whole, or, failing that, a provision in individual judges’ roll directives permitting a prescribed alternative form of address. The one thing that is needed is authority from above: a sanction that allows ‘Justice’ to be used, so that it is not mistaken for a High Court judge arrogating to themself a more exalted style. The law, being all about hierarchy, requires the permission to come from the top. Once it does, the change costs nothing and settles within a term.

The case is clear and the remedy uncontroversial. The honorifics of the High Court and the Magistrates’ Courts are the last prominent unrevised lines of a colonial script — a feudal lordship and an ecclesiastical worship retained, by inertia, inside a transformative constitutional order. The apex courts have shown that decorum and gravitas survive the substitution; that the law retains its ‘auratic shimmer’16 when ‘Justice’ takes the place of ‘My Lord’. A uniform ‘Justice’ across all courts would not diminish the bench. It would, more honestly than the inherited forms, name what we ask the bench to stand for.

About the author

I have visited the Johannesburg Zoo many times. The elephant enclosure, as I've always experienced it, housing Lammie, Mopane, and Ramadiba, seems to be a reasonably large space. Like most of the other animals in the zoo, they are kept with others of their kind. When I've watched them, while reading or having a picnic, my instinct has been that they seem fine, going about their business, doing this or that, eating some branches given to them, and even engaging with onlookers.

But others say their state of living is dire. Can city “apartment living” ever be enough for these animals whose natural range spans thousands of kilometres and whose social world involves multi-generational bonds with dozens of others? This is the question that Animal Law Reform South Africa NPC v Johannesburg City Parks and Zoo NPC put before the Gauteng High Court.

I wanted to test my impression against what the evidence shows in the court record.

What the applicants argue

The application is brought by Animal Law Reform South Africa, the EMS Foundation, and Chief Stephen Fritz.1 The applicants contend that keeping Lammie, Mopane, and Ramadiba in captivity is unlawful and unconstitutional, rooting their case primarily in section 24 of the Constitution — the right to an environment not harmful to health and wellbeing. They argue that this right, read purposively and in light of existing precedent, generates obligations on the respondents to ensure the welfare of individual animals in their custody. That argument draws on a line of cases in which the SCA and Constitutional Court have progressively affirmed that animal welfare is embedded in constitutional values: animals are sentient beings possessed of intrinsic value, and they have the right to be protected.

The applicants also rely on the National Environmental Management: Biodiversity Act (NEMBA) as amended in 2022, which introduced a statutory definition of animal “wellbeing” — the holistic conditions conducive to an animal’s physical, physiological and mental health and quality of life — and requires it to be considered in management and conservation decisions. The applicants argue that the respondents’ ongoing decisions to keep the elephants must now comply with this provision, and that the continued captivity demonstrably fails that test. That word is currently at the centre of its own constitutional battle: the NSPCA is before the Constitutional Court defending the inclusion of “wellbeing” in NEMBA against a challenge brought by the South African Hunters and Game Conservation Association, with judgment pending. The outcome will matter for this case, too.

The applicants accordingly seek an order directing that the elephants be released and relocated to a suitable protected natural environment, through a carefully planned process to be implemented by expert veterinarians and rehabilitation specialists. They have secured an alternative sanctuary for the elephants, and suggest that part of their enclosure must be turned into an info centre about why elephants should not be kept in zoos. This matters because in reserves across South Africa, elephant overpopulation has led to contested culling; not all elephants are afforded the right to life.

The applicants explicitly limit the scope of the application: this is not a case about whether animals ought to be kept in zoos in principle. It is focused on these three elephants, at this zoo, in these conditions. They do not seek to challenge the suitability of keeping rhinos, tigers, a gorilla (as in the recent past and possibly in future), and, as is now a thing of the past, polar bears.

The experts describe the main enclosure as essentially barren with minimal vegetation, little shade, and little for the elephants to interact with. The applicants argue that the elephants are too exposed to the sun in the outer enclosure, but the night enclosures, where they can retreat to, are smaller than a tennis court and made of concrete and get very hot.

The applicants allege that the elephants are released from the night enclosures only once staff have finished cleaning the outdoor area in the late morning, and brought back in long before they would naturally sleep, meaning they spend the majority of their waking hours in these small, contained spaces. All three have been observed engaging in stereotypic behaviour of psychological distress: repetitive, purposeless movement associated in the scientific literature with severe confinement. Dr Marion Garaï, the applicants’ founding expert, concluded in 2018 that Lammie was a “mentally broken elephant”; Mopane was bored and frustrated; Ramadiba was at risk of “total depression and apathy” — and was observed banging his head against poles. Later observations suggest Mopane and Ramadiba have since declined toward the same listlessness.

The applicants say the elephants are fed teff and hay thrown directly onto the ground, causing them to ingest sand as they sweep it up — the same mechanism that likely killed Kinkel, Lammie’s previous companion. Lammie reportedly eats sand regularly, which experts associate with mineral deficiency. Browse is sometimes thrown to them across the moat, a practice described as dangerous. Clean drinking water appears inadequate. The dry moat — a containment method now prohibited under international standards — has already cost Lammie a tusk and permanent leg damage after she fell into it. An international expert team that visited in 2023 described the animals’ overall condition as one of medical neglect.

On social dynamics: female elephants in the wild live in large multi-generational groups; international standards require at least three adult females in captivity. The zoo has one. Experts note that Lammie was not ready for two new wild-caught elephants arriving into her small space, and does not function as a matriarch.

The applicants point to a growing international consensus, evidenced both by litigation and by voluntary decisions taken by zoos themselves, that elephants and zoo (and circus) captivity are a poor fit. A high court in Pakistan ordered the release of an elephant from the Islamabad Zoo after it found that three decades of captivity had subjected him to “unimaginable pain and suffering.” On the zoo-closure side, Detroit, San Francisco, Edinburgh and several others have voluntarily ended their elephant exhibits.

The amici, two Harvard Law academics2 who have intervened in similar cases in other jurisdictions, in their heads of argument,3 survey a growing body of case law from the Global South in which courts have used constitutional environmental rights, and in some cases the concept of legal personhood for animals, to come to the aid of captive animals.

In 2025, the Mexican Supreme Court upheld an order requiring improved welfare conditions for Ely, an African elephant held in isolation at a Mexican zoo, invoking the precautionary principle and the constitutional right to a healthy environment in terms broadly comparable to our section 24. In Argentina, courts have recognised elephants and great apes as non-human persons entitled to legal protection, and have ordered relocations to sanctuaries accordingly.

The amici also draw on international law: the Inter-American Court’s 2017 advisory opinion that the right to a healthy environment protects the components of nature in their own right, extended in 2025 to recognise nature itself as a subject of rights; and the African human rights framework, which they argue — through instruments like the Revised African Convention on the Conservation of Nature and the concept of ubuntu as articulated by South African philosopher Mogobe Ramose — is accommodative of a relational, non-anthropocentric understanding of our obligations toward the natural world. Their conclusion is that South African courts have already been at the forefront of this global movement through NSPCA v Minister of Justice (2016), in which the Constitutional Court affirmed that animal welfare is embedded in constitutional values and that the rationale behind protecting animal welfare has shifted from merely safeguarding the moral status of humans to placing intrinsic value on animals as individuals, and that this case is an opportunity to carry that jurisprudence further.

The third applicant, Chief Stephen Fritz, contends that the manner in which the elephants are kept offends the living heritage of the Khoi people — their values, spiritual beliefs, and holistic approach to nature and the environment. This grounds the case in the rights to dignity and cultural life under sections 10, 30, and 31 of the Constitution.

What the Zoo says

The respondents’ answering affidavit, deposed to by Thanduxolo Mendrew, the Zoo’s Managing Director, paints a picture of care rather than neglect. The respondents' heads of argument4 mount a layered legal case that, if it succeeds on any of its preliminary points, means the judge need never reach the question of whether the elephants are suffering at all.

The first argument is one of constitutional subsidiarity. South Africa’s legislative framework governing the keeping of elephants in captivity — the National Environmental Management: Biodiversity Act, the Threatened or Protected Species Regulations, and the National Norms and Standards for the Management of Elephants in South Africa — has been in operation since 2008. The Johannesburg Zoo holds a valid permit under this framework, issued by the MEC as the designated issuing authority, which expressly authorises it to keep elephants as a commercial exhibition facility. The respondents submit that the applicants, by invoking section 24 of the Constitution directly, have bypassed the legislative framework that the legislature put in place to give effect to section 24. If the framework is inadequate, the respondents argue, the applicants should have challenged its constitutionality. If the Zoo is breaching the framework, the applicants should have approached the issuing authority to revoke the permit, or laid criminal charges. The respondents say the failure to do so is fatal to the application.

The second preliminary argument is that the disputes of fact are irresolvable on paper. The parties have presented competing teams of experts holding fundamentally divergent opinions about the behaviour, psychological state, and welfare needs of the three elephants. The respondents submit that no court can make the positive factual findings the applicants seek without hearing oral evidence, and potentially conducting an inspection in loco.

On the substance, Lammie was born at the Zoo in 1979. She is 47 years old. Kinkel, her companion of 18 years, died in September 2018 — not through negligence, the Zoo says, but as an unavoidable consequence of a trunk injury he had sustained before his rescue from Botswana, which caused him over many years to ingest more sand than his digestive system could manage. After his death, the Zoo halted Lammie’s training regime and had staff sit with her through the days and evenings as she was mourning. Mopane and Ramadiba were acquired in 2019 specifically to provide her companionship — sourced, the Zoo says, from a game reserve in the Eastern Cape where they were facing culling because the owner could no longer manage them, and where Ramadiba had been kept chained at his ankle. The Zoo’s position is that it gave both animals a second life.

The enclosure has since been expanded to just over 11,000 square metres — achieved by incorporating the adjacent rhino enclosure — and the respondents submit that this exceeds the minimum standards set by the overwhelming majority of international zoo bodies, including those cited by the applicants’ own experts (the applicants say the elephants are only infrequently let into the adjacent enclosure). The Zoo’ expert, WK Lindsey, tabulated six different international standards and concluded that the Zoo complies with all but two, which require sufficient space for elephants to walk 10 kilometres per day.

The Zoo says there was no repeated incident after Lammie was injured by falling into the moat in 2001, and that neither Mopane nor Ramadiba has ever fallen into the moat.

The elephants allegedly receive browse twice daily, collected through a social media campaign asking Johannesburg residents to report tree pruning in their areas. A professional nutritionist has developed individualised diet formulations for each animal — each receiving multiple types of pellets, daily mixed vegetables including oranges, apples, cucumbers, peppers, tomatoes, brinjals, marrow and leeks, in addition to teff and lucerne. There are enrichment programmes, monthly behavioural reports, training sessions using positive reinforcement, and a team of keepers who have worked with Lammie for up to twenty years. In April 2024, all three animals were sedated and given comprehensive medical assessments by a team from Onderstepoort — which, the Zoo says, produced clean bills of health, including radiographs of Lammie’s feet showing no abnormalities.

The Zoo disputes the applicants’ expert evidence. The video footage relied upon was recorded during periods of known distress: Lammie grieving Kinkel’s death in October 2018, and Mopane and Ramadiba adjusting to an entirely new environment during August 2019 to March 2020. The Zoo says neither context was disclosed to the experts who formed opinions based on that footage. The Zoo’s expert explains that what was initially characterised as negative stereotypic behaviour in Ramadiba was, on closer analysis, anticipatory excitement triggered by the arrival of the feeding vehicle — and was resolved by adjusting the feeding routine.

The respondents also dispute specific factual claims. The enclosure is not barren: photographs show large trees, seasonal grass and shrubbery, rock boulders, suspended tyres, and multiple scratching poles. The night enclosures, while shared, exceed the requirements of all six international zoo standards. The allegation of no clean drinking water is contradicted.

The Zoo also points to the case of Thandora — an elephant from the Bloemfontein Zoo relocated to a rewilding facility, who could not adapt to foraging for food after decades of captivity, gravitated toward human settlements, ate from rubbish bins, and died with plastic lodged in her intestines. The applicants’ response to this is that Duma (formerly Charlie), the elephant from the Pretoria Zoo, was successfully relocated to Shambala Private Game Reserve in August 2024 and released into a 26-hectare enclosure in October 2024. Notably, the applicants introduced this evidence in their replying affidavit, and the Zoo sought to have those paragraphs struck out — while the applicants have since described the Duma evidence as “only tangentially relevant”.

On the Khoi heritage argument specifically, the respondents submit that it finds no support in the Natural Heritage Resources Act relied upon by Chief Fritz, which limits a heritage resource to a place or object of cultural significance and says nothing about the keeping of elephants.

Where I come to stand

Reading the pleadings has complicated my view in both directions. Judge Noluntu Bam will have to make a finding after the hearing on 21 May 2026. The judgment might likely be appealed.

The case might be decided on legal grounds (subsidiarity, dispute of fact), not on the merits. If the judge has an appetite for more, we might get a judgment that addresses the elephants’ interests.

There is an inherent tension in humans speaking for animals, deciding what is best for beings who cannot instruct a lawyer or express a preference in any form that a court can receive. Both sides say it is necessary not to anthropomorphise the elephants. But to assess whether an elephant is depressed, to evaluate whether her behaviour is stereotypic of severe stress, or to come to the conclusion that they are doing fine, given the circumstances — all of this requires the inference of an inner life from observable behaviour. That inference is unavoidable. The question is whose inference the court accepts, and why.

This case is morally greyer than cases involving solitary elephant confinement, unprofessional backyard zoos or circus performance. Is it likely that these elephants would prefer to live the remainder of their lives in a larger sanctuary where they can roam and browse naturally? I think so. Are the conditions they are kept in inhumane? I don’t think so. But “not inhumane” is not the same as “just”.

A more traditional legal mind will weigh the human interest too — the educational value to the many thousands of children who visit this zoo and for whom a game lodge is not an option.

Whose interests triumph? In which circumstances is the injustice greatest?

About the author

This address builds on an earlier post, in which I set out the legal background to the Goliath v McKenzie litigation and what it reveals about the governance of South Africa’s Venice Biennale pavilion. While that analysis informed some of the broader discussion on the evening, my contribution to the Tribunal was offered as a separate engagement — responding not to the legal detail, but to the deeper constitutional and aesthetic questions the case raises about law, art, and what South Africa’s founding vision demands.

ADDRESS TO THE GABRIELLE GOLIATH PEOPLE’S TRIBUNAL

Madam Narrator, members of the Panel, Assembly —

Francois Lion-Cachet, of the Johannesburg Bar.

I appear before this Tribunal not merely as an advocate. I also appear as a legal and cultural scholar who has spent years studying, as part of my PhD in visual legal rhetoric, what is relevant to our gathering — and what the act of censorship, which we are probing, reveals about the law’s most elemental relationship with art, with space, and with the question of who is permitted to be seen, heard, and guarded.

Let me begin with a proposition that is not often acknowledged in legal discourse, but that is fundamental to it.

The courtroom is a stage.

Not metaphorically. I mean this precisely and theoretically. Law has always organised itself as a visual enterprise — a performance designed to produce, in the minds of those who witness it, an experience of authority, of legitimacy, of order. The robes. The raised bench. The ritual of rising when the judges enter. The architecture that compels you to look upward — toward the bench, toward power. This extends outside the court: the police or soldier’s uniform. Insignia. None of this is accidental. It is a carefully composed aesthetic regime — a distribution of what is visible, audible, thinkable, and speakable within the law’s domain. And that domain is society.

The French philosopher Jacques Rancière gives us the tools to name what is happening here. An aesthetic regime, in Rancière’s precise sense, is not merely a style. It is a mode of organising perception itself — determining what and who can appear before the community’s eyes, whose voice registers as legitimate speech, and who is assigned power or stripped of it.

Apartheid was not only a regime of discriminatory statutes. It was an aesthetic regime. The courtrooms, the spatial zoning, the heraldic imagery of sovereignty, the performance of adjudication from an elevated, distanced bench — all of this composed an integrated sensory architecture through which apartheid law made itself felt as a natural order of things. To appear before that law was already to be diminished by it. The court building told you so before a word was spoken.

To dismantle that order, then, required more than legislative repeal. It demanded a reconfiguration of the entire aesthetic regime — a redistribution of what was perceptible as law and justice. A redistribution of the sensible.

This is what the Constitutional Court of South Africa attempted. And this is what Minister McKenzie undid, ever so slightly, in a single bureaucratic letter.

Let me turn to a tree.

When the Constitutional Court was founded, its architects and jurists faced a choice about what symbol would stand for this new law, this new constitutional order. They rejected the blindfolded Lady Justice — that Western emblem of law’s detachment from the world, its disembedding from time, place, and African sovereignty. Instead, they chose something older, more grounded, and more honest about what justice actually requires.

They chose a tree. A tree in whose protective shade the members of the political community gather together, in dialogue, engaging in each other’s stories.

The principle of justice under a tree is not a decorative choice. It is a jurisprudential statement of the first order.

The tree invokes the nomos — the founding concept of law not as a set of texts delivered from above, but as an act of rooting, demarcating, of planting an order in a particular place, among particular people, at a particular moment in history. Granted, it also speaks to the act of land appropriation. And to competing demands on the same space.

In African constitutional and cosmological thought, the image of gathering under a tree to deliberate — what West African jurisprudence calls the palabre — encodes an entire philosophy of law: that justice is achieved not by detachment, but through presence; not through hierarchy, but through dialogue; not through the silencing of some voices in favour of others, but through (as I propose) eco-ubuntu — a developed understanding of the concept as an interconnectedness spanning beyond humans to all of the world. The law cannot escape from the spiritual.

The Constitutional Court building is a materialisation of this philosophy. It sits on the site of the Old Fort Prison — a place where the apartheid state incarcerated those it refused to recognise as full human beings. To build the highest court of constitutional democracy on that ground is itself an act of dissensus — Rancière’s term for the political act that ruptures the existing order of visibility, that insists on the appearance of those who were previously consigned to invisibility.

The art collection within that building, which I curated for some years, continues this work. It does not hang the portraits of judges. It does not celebrate the majesty of the law. It holds, instead, the work of artists who bore witness to atrocity, who recorded the faces of the disappeared, who refused to let what was done in the dark be forgotten in the light of the new dispensation. The art also advocates for and should imagine the world we want to move into.

Jürgen Schadeberg chartering a plane over Sharpeville to capture from the air the magnitude of what the state had done to its own people. Amos Miller’s rendering of Steve Biko’s face, reconstructed from international media reportage of his murder. Judith Mason’s Blue Dress — sewn from plastic bags, a monument to a woman, Phila Ndwandwe, executed and buried by the apartheid state. William Kentridge, who painted himself nude, exposed. Pitika Ntuli’s Gaza: Lest We Forget, a pile of bones asking, why war? Why bombs? Why massacres? Why?

These are not decorations. They are records. They are evidence. And their placement in the Constitutional Court is a claim: that law must remain answerable to those it has failed.

This, following Rancière, is what resistance art does. It recalibrates. It disrupts the consensus — the comfortable agreement that what has been done is past, that the order now in place is just, that the distribution of the visible is settled. Resistance art insists on the return of what was made invisible. It insists that the distribution of the sensible is always a political act, and therefore always contestable.

Stacey Vorster, one of the scholars who has closely studied this collection, writes that art in a court of law can either reinforce or disrupt consensus about justice, institutional authority, and rights. The Constitutional Court’s collection, at its best, performs the latter function. It enacts dangerous curating.

It says, from within the institution of law itself: we are not yet done. The promise of this Constitution has not yet been fully redeemed. Look at these faces. Look at this tree, under attack at its roots. The struggle continues. For humans and for the natural environment.

Which brings me to Venice. And to this Tribunal.

Eliza Garnsey, in her study of the Constitutional Court and the South African Venice Biennale pavilion, makes an observation that should be read as legal argument, as visual jurisprudence. She demonstrates that these two sites — the Constitutional Court and the national pavilion — are continuous. Both are places where South Africa constructs and projects its post-apartheid self-image. Both are lawscapes — the term Andreas Philippopoulos-Mihalopoulos gives to the immersive, inescapable field of legal being that law and space produce together. Both the Court and Venice are stages on which the aesthetic and the legal are inseparable.

Gabrielle Goliath’s Elegy was selected, by an independent curatorial process, to occupy that stage. It is a work of mourning and witness — which is to say, it is precisely what resistance art does: it insists on the visibility of those the powerful wish to render invisible. A minister looked at that work and saw a threat. He saw a distribution of the sensible that did not suit Zionist interests — and he intervened.

The court that heard this matter looked at that act and saw a private contractual dispute, and decided the issue on a technicality. Its judgment did not seek to carry the true weight of what is at stake.

This Tribunal has a different intent.

This Tribunal is convened in the tradition of the palabre — the gathering under the tree to deliberate collectively on what justice requires, not in the narrow corridors of procedural law, but in the full breadth of our shared moral existence. It is itself an act of dissensus — an insistence that the distribution of who may speak, who may witness, and whose mourning counts as legitimate speech, is not settled.

The pavilion is empty. But the Assembly is not.

I place this on the record.

About the author

The Venice Biennale is not an art show. Or rather, it is not only an art show. Established in 1895 and held biennially in the canals and former shipyards of Venice, it is one of the oldest and most prestigious international cultural events in the world — but to describe it merely as a showcase for contemporary art is to miss its deeper function entirely. The Biennale is a theatre of nations. Its pavilions — some owned outright by established states in the historic Giardini, others rented by newer and Global South participants in the Arsenale (which is in and of itself indicative of its politics) — are, in the words of scholar Eliza Garnsey, “proxies through which states present an image of themselves to the international community.” In her monograph The Justice of Visual Art (2019, Cambridge University Press), based on extensive fieldwork at both the South African Constitutional Court and the South African Pavilion at Venice, Garnsey argues that the Biennale’s spatial and geopolitical architecture forces comparisons between states. The Biennale, she demonstrates, is fertile ground for states to offer competing visions of themselves, their values, and their place in the international order. Individual curators and artists also get space to challenge, in turn, those nations present and absent. Art, in this context, becomes — as Garnsey puts it — a radical form of political participation. The head of the British pavilion once put the point more bluntly: “I hate to employ the word using, but our job is to use art to serve Britain’s foreign policy objectives overseas.”1 Nations arrive at Venice not merely to exhibit. They arrive to be seen, to stake claims, to contest narratives, and to be judged.

South Africa’s relationship to the Biennale is freighted with particular constitutional significance. During the apartheid era, South Africa was banned from participating — excluded by the international community as a form of cultural sanction against a state that had forfeited its legitimacy. Its return to Venice after 1994 was itself a constitutional act: a performance of democratic rebirth, a signal to the international order that a new South Africa had arrived and intended to be witnessed on its own terms. Garnsey traces this arc in detail, documenting how South Africa’s post-apartheid pavilions have functioned as exercises in what she calls visual jurisprudence — the exhibition of contested narratives of the new South Africa to the outside world, the mobilisation of art as an instrument of cultural diplomacy and transitional justice. The pavilion is, in this reading, continuous with the Constitutional Court itself: both are sites where South Africa constructs and projects its post-apartheid self-image, where the aesthetic and the legal are inseparable, where the question of what this country stands for is posed and answered in visual terms.

It is against this backdrop — and not the backdrop of a ministerial property or contractual dispute — that the events giving rise to Goliath v McKenzie must be understood. In December 2025, Minister of Sport, Arts and Culture Gayton McKenzie wrote to Art Periodic South Africa — the non-profit organisation he had designated to manage South Africa’s pavilion at the 2026 Venice Biennale — to express his displeasure. The Independent Curatorial Selection Committee convened by Art Periodic had unanimously selected artist Gabrielle Goliath’s work Elegy, a filmed performance triptych engaging with mourning, witness, and, in one of its multiple elements, the deaths of women and children in Gaza, to represent South Africa at the 61st Biennale. McKenzie objected. It would not, he wrote, be wise or defensible for South Africa to support an art installation against Israel, currently accused of genocide, while South Africa itself faced what he characterised as unjustified accusations of the same. When Art Periodic did not respond to his satisfaction, he terminated the arrangement entirely. The pavilion would revert to direct departmental management, he announced, and would be used instead for a “positive message” — one that would help repudiate what the Minister regarded as lies about South Africa’s international conduct.

Goliath and her co-applicants approached the Gauteng High Court in Pretoria on an urgent basis, arguing in a review application including interdictory relief that the Minister had censored their constitutionally protected artistic expression, unlawfully interfered with an independent curatorial process, and acted irrationally and in bad faith. Central to their case was the contention that the Minister’s interference with, and purported cancellation of, the Selection Committee’s decision constituted administrative action subject to review under the Promotion of Administrative Justice Act — a characterisation the respondents vigorously disputed, insisting that no administrative decision had been taken against the applicants at all. McKenzie’s response was categorical: he had no relationship with the applicants whatsoever. His only agreement had been with Art Periodic, for the use of a state-controlled venue. That agreement he was entitled to terminate. The Selection Committee’s decision had never been his, never bound him, and the applicants’ proper recourse — if they had any — lay against Art Periodic, not against him.

Justice Kubushi of the Pretoria High Court agreed with the Minister. In a judgment handed down dated 17 February 2026, the Court found that the dispute was not about freedom of artistic expression or the rule of law at all. It was, rather, an ordinary private agreement between two parties — the Department and Art Periodic — the termination of which did not directly and adversely affect the applicants’ constitutional rights. Without a direct legal relationship between the Minister and Goliath, there was no standing. Without standing, the merits did not arise. The application was dismissed with costs against Goliath and the other applicants, including the costs of two counsel. That the Biowatch principle — which ordinarily protects litigants who bring genuine constitutional matters against adverse cost orders — offered no shelter here speaks volumes about how completely the Court had excised the constitutional dimension from what was, on any honest reading, a constitutional dispute.

Nicole Fritz, executive director of the Campaign for Free Expression and amicus curiae in the proceedings, was not persuaded. Writing in Business Day, Fritz argued that the Court had fundamentally misconstrued its own role. The passage the Court cited near the end of its judgment — that standing becomes irrelevant where there is a strong indication of fraud or other gross irregularity in the conduct of a public body — should, she contended, have been the starting point of the inquiry, not its conclusion. Evidence before the Court suggested that McKenzie and his advisers had deliberately withheld knowledge of Venice Biennale submission deadlines from both the applicants and the Court — conduct characterised in submissions as dishonest, underhanded, and designed to evade accountability. The Court left those allegations entirely unaddressed, and issued its order without reasons while fully aware of the urgent deadlines — foreclosing any realistic prospect of an urgent appeal. The applicants intend to approach the Supreme Court of Appeal. But the deadlines have passed. The pavilion is empty — and the cost of its emptiness falls on South African taxpayers, who continue to fund the rental of a space that this year will exhibit nothing.

The constitutional stage McKenzie could not see

McKenzie’s own affidavit inadvertently reveals the depth of his apparent, or calculated, misunderstanding. In paragraph 24 of his answering affidavit, he describes the purpose of South Africa’s Venice pavilion with disarming simplicity: it exists, he states, “to market South African Artists, especially new and upcoming artists.” The characterisation misapprehends what the Biennale is and what national participation in it means. To describe the Venice pavilion as a marketing platform for emerging talent is to mistake a constitutional stage for a trade fair.

The Biennale does not exist primarily to give artists exposure. Artists of international stature, with established bodies of work and critical reputations, represent their nations at Venice — not because established artists necessarily need the platform, but because the platform demands a level of artistic and intellectual seriousness commensurate with its own gravity. The selection of Gabrielle Goliath — a 2019 Standard Bank Young Artist Award winner with an internationally exhibited practice, a rigorous conceptual framework, and a work already recognised in global contexts — was precisely calibrated to that standard. Her artwork, Elegy, speaks poetically as a type of lament to the Biennale’s overall theme of ‘In Minor Keys’. To suggest that Venice is instead a developmental opportunity for new and upcoming artists is rather like arguing that South Africa sends junior athletes to the Olympics for the experience. The Olympics, like the Biennale, is not a development programme. It is where a nation performs its best self before the world, and is judged accordingly.

The consequences of McKenzie’s reductive framing extend beyond the immediate dispute. If the pavilion is merely a marketing vehicle, then the Minister is simply a brand manager with discretion over what gets advertised under the national banner. But if the pavilion is — as Garnsey’s analysis compels us to understand — a site of cultural diplomacy, visual jurisprudence, and constitutional self-projection, then the Minister’s authority over its content is not simply contractual. It is politically, constitutionally, and internationally consequential in ways that an ordinary private arrangement could never be. That this distinction went unexamined in the judgment is not entirely surprising — the existing legal framework gave the Court little to work with. It reflects a broader gap in South African public law and jurisprudential imagination — one that has not yet developed adequate tools for recognising the constitutional significance of how the state performs its identity in international cultural spaces.

The legal fault lines — and the question nobody openly asked

The legal issues in Goliath v McKenzie were, on their face, procedural. Before the Court could reach the substance of whether the Minister had unlawfully censored an artist and violated the constitutional right to freedom of artistic expression, it had to navigate a thicket of preliminary objections raised by the respondents: urgency, standing, non-joinder, and mootness. The Court disposed of the matter on standing alone, finding that the applicants had no direct legal relationship with the Minister. The merits — the censorship allegation, the irrationality of the Minister’s shifting justifications, the duty of candour — were not reached.

Each of the preliminary points deserves examination, but it is the non-joinder argument that raises the most practically significant question — one that, seemingly, the Court did not ask and the parties did not adequately address.

The Minister’s position was straightforward: the only agreement he had was with Art Periodic. If the applicants had any grievance arising from the selection process, their recourse lay against Art Periodic, not against him. Art Periodic, he submitted, had a direct and substantial interest in the proceedings — indeed, any order granted in the applicants’ favour could not be executed without affecting Art Periodic’s rights and responsibilities — and its absence from the proceedings was therefore fatal. The Court did not reach the non-joinder point — having disposed of the matter on standing, it expressly declined to address the remaining preliminary issues or the merits. But the non-joinder argument, left hanging, raises a question the litigation never adequately confronted.

If Art Periodic’s presence was so essential to the resolution of this dispute, why was it not simply joined as a party? Or, alternatively, why did Art Periodic not want to be joined as a party?

Joinder in motion proceedings is not an insurmountable obstacle. Courts regularly direct that absent parties be joined when their interests are materially affected. The applicants could have joined Art Periodic from the outset. Alternatively, the Court, upon identifying the non-joinder difficulty, could have directed joinder rather than using the absence of Art Periodic as a further reason to dispose of the matter summarily. It is fair to acknowledge that none of this is straightforward in urgent proceedings — the compressed timelines, the volume of papers, and the procedural pressures of the urgent court are ill-suited to the kind of careful institutional and constitutional analysis this dispute ultimately required. The tragedy of Goliath v McKenzie is in part a tragedy of forum: a matter of genuine constitutional complexity was forced, by the urgency of Biennale deadlines, into a procedural environment that was structurally inhospitable to it.

An extension of the question follows: why did Art Periodic not seek to intervene? An organisation that had convened an independent curatorial committee whose selection it publicly supported,* and that had issued a statement supporting Goliath’s appointment — that organisation had an obvious institutional interest in the outcome. Its silence once litigation commenced is telling. One possible reading, consistent with the Minister’s affidavit, is that Art Periodic effectively acquiesced to the termination — that when the Department withdrew, Art Periodic accepted the position and stepped back. Deadlines and fundraising prospects were obviously against them, given the Minister’s actions. If so, it raises its own troubling questions about the structural vulnerability of public-private arrangements of this kind, where a newly constituted civil society entity, dependent on state goodwill for access to a state-controlled venue, may lack both the resources and the institutional independence to contest such executive actions in court.

Which brings us to the deeper issue that the litigation has exposed but not resolved.

The governance gap — and why it matters for 2028

South Africa’s participation in the Venice Biennale has, over the past decade, migrated away from direct state management toward a hybrid model in which the Department retains ownership of the pavilion relationship while delegating curatorial and operational responsibility to civil society and arts sector partners. This model has genuine virtues. Direct state management of cultural selection produces exactly the kind of ministerial interference that Goliath v McKenzie illustrates — when the state both funds and curates, political considerations inevitably distort artistic judgment. Delegating curatorial authority to an independent body insulates the selection process from political pressure, brings specialist expertise to bear, and signals to the international arts community that South Africa’s pavilion is governed by artistic rather than governmental logic.

But the Goliath v McKenzie litigation has revealed shortcomings. The arrangement between the Department and Art Periodic was, on the Court’s finding and the Minister’s own account, a private contractual agreement between two parties — one of whom happened to be a state department. Whatever its formal terms, it contained no legally enforceable curatorial independence clause, no mechanism by which the selection committee’s decisions could be understood as binding on the state, and no provision for what would happen if the Minister decided he did not like the outcome. When the arrangement collapsed under political pressure, there was nothing in its architecture — legally speaking — to hold it together.

This is the governance problem that the litigation has made visible, and it will not resolve itself by appeal. Even if the SCA were to find in the applicants’ favour — reversing the standing finding, holding that the Minister’s conduct engaged constitutional rights, and declaring his interference unlawful — the structural vulnerability of South Africa’s pavilion governance would remain. The next Minister could repeat McKenzie’s manoeuvre in 2028, or 2030, or any subsequent edition, unless the legal architecture governing the pavilion is fundamentally redesigned.

The Biennale returns in 2028 — and 2027 will bring the Architecture Biennale to Venice, a forum that operates under the same national pavilion structure and would be equally vulnerable to ministerial interference (South Africa’s contribution was also absent last year). It is not fanciful to suggest that the world the South African pavilion will encounter in future years will be more politically fractured than the one in which Elegy was selected and suppressed. The international order is reorganising itself around competing civilisational claims, contested notions of sovereignty and self-determination, and the weaponisation of culture as an instrument of soft power and narrative control. The pressure on national pavilions to conform to governmental foreign policy positions — already visible in Russia’s contested return to Venice in 2026 after four years of absence following its invasion of Ukraine, and in the closure of Israel’s pavilion in 2024 by its own artists in protest at the Gaza war, and now in South Africa’s own pavilion in the aftermath of Goliath v McKenzie — will only intensify. In this environment, the independence of curatorial processes is not a luxury of the culturally sophisticated. It is a structural necessity for any state that wishes to participate in the Biennale on terms that preserve its credibility as a constitutional democracy committed to artistic freedom.

South Africa has a particular stake in getting this right. Its return to Venice after the apartheid ban was itself a constitutional statement — a declaration that a new kind of state had emerged, one whose legitimacy rested on democratic values, human dignity, and the rule of law. The Constitutional Court and the Venice pavilion are, as Garnsey’s work demonstrates, continuous sites of this constitutional self-projection. To allow the pavilion to become an instrument of ministerial message management — a platform for “positive messages” calibrated to the Minister’s foreign policy preferences — is to hollow out that constitutional statement from within.

The solution is not to abandon the public-private partnership model. It is to make it legally robust. A formal governance framework for the South African pavilion — one that entrenches curatorial independence, establishes transparent selection processes, creates enforceable obligations on both the state and its civil society partners, and provides legal standing for selected artists when those processes are unlawfully overridden — would transform the pavilion from a site of supposed ministerial discretion into a genuine constitutional institution. It would also provide the legal architecture that the applicants in Goliath v McKenzie sought: a framework within which the Selection Committee’s decision could be recognised as more than an internal matter between two private parties, and within which artistic freedom at Venice could be understood as a constitutionally protected interest deserving of judicial protection.

The pavilion stands empty in 2026. Gabrielle Goliath is showing Elegy elsewhere at Venice — the work will nevertheless be seen. The silence belongs to South Africa alone, and the bills to the taxpayer. It is a gross forfeiture of this country’s place on a stage where its constitutional vision needs to be heard, in a world that needs to hear it.

About the author

*A previous version of this piece stated that Art Periodic announced the selection of Gabrielle Goliath’s work. This has been corrected: the selection was made and announced by the Independent Curatorial Selection Committee.