Heritage law does not often get an apex court outing. It is a field of gazettes and permits and provincial authorities that most lawyers never touch, and when it does surface publicly it usually does so as a planning dispute about a demolition. That the Constitutional Court heard argument on 8 September 2026 in South African Heritage Resources Agency and Others v Mandela and Others is an exciting development in South African heritage law. Whatever the Court decides, it will be the first judicial account of how the National Heritage Resources Act 25 of 1999 operates and empowers the South African Heritage Resources Agency (SAHRA).
The objects
There are 29 of them. Including a beige floral Madiba shirt; a pen given to Mandela by President George Bush; a signed Rivonia Trial photograph; an original charcoal drawing by Mandela titled Breaking Free; a Holy Quran in a Kaaba box; a gift from President and Mrs Obama; a tennis racquet from Robben Island; a pair of Ray-Ban aviator sunglasses; the Fiorino d’Oro presented by the mayor of Florence; a unique gold medallion, numbered 1 of 1; two busts; several books, including an inscribed family copy of Mandela: The Authorised Portrait; and a copy of Fernando Pessoa’s 35 Sonnets.
Twenty-seven of those belong to Dr Makaziwe Mandela, Mandela’s eldest daughter. Two belong to Christo Brand: a (contentious) key, and a signed copy of a precursor text to the 1996 Constitution, with a personal note to Brand and his family.
On 23 December 2021 SAHRA’s chief executive, Lungisa Malgas, was alerted to an article in the UK Daily Mail headlined, in substance, that the key which had locked up Nelson Mandela was set to sell for more than £1 million. The founder of Guernsey’s Auction House, Arlan Ettinger, was quoted describing what the key symbolised as an extraordinary part of the history not only of South Africa but of the world. The auction, “The Nelson Mandela Auction”, was scheduled for late January 2022. Dr Mandela’s stated purpose was to raise funds for a memorial garden at her father’s grave at Qunu.
SAHRA wrote to Guernsey’s the next day demanding suspension and repatriation. The auction was postponed. Guernsey’s declined to send Dr Mandela’s items back, saying US law required their return to the consignor. On 15 March 2022 SAHRA, the Robben Island Museum and the Department of Sport, Arts and Culture launched the application in the Gauteng Division, Pretoria, that has now reached Braamfontein.
The key in the drawer
The most contested object in the case makes for a fascinating tale on its own.
Christo Brand arrived at Robben Island as a prison warder in 1979. Mandela had by then been there about fifteen years. Brand was assigned an office with a desk, and in one of the drawers he found a key in two pieces. He was told that it was not an official Robben Island key, that it had probably been handmade or forged by another warder or an inmate, and that it had most likely been confiscated and deliberately broken by a warden so that it could not be used. He put it back in the drawer.
He says he never tried it on Mandela’s cell door and never believed it could open it. When he left the Island for Pollsmoor in 1982 he took the two pieces with him, retaining them through Mandela’s release, his presidency, and Mandela’s death in 2013.
In 2018, a curator Celeste Reynolds, acting for MC Exhibits LLC, was assembling material for a travelling exhibition called Nelson Mandela — The Official Exhibition. She was interested in the broken key and other objects in Brand’s possession. Brand had a friend weld it back together. On 19 August 2018, he signed an agreement with MC Exhibits for a five-year worldwide tour, for a fee of US$9,000 and travel. In the “List of Artifacts” attached to that agreement the item appears as a “Robben Island Master Key”, against which Brand added a single annotation: “handmade”. The same list includes two table tennis paddles, his warder’s cap, jersey, trousers and shirt, a spoon, a plate and a bar of soap. The agreement calls all of them heritage objects. That contractual language would later be used against him by Ngcukaitobi AJ in the Constitutional Court, saying, during the hearing, there was clear misrepresentation in how the key was presented.
Brand’s evidence, given under oath, is that his key is not the key to Mandela’s cell, as it was portrayed in the media. He annexed two photographs: one of his key and the other of the replica that the Robben Island Museum, the second applicant, sells as a replica of the actual cell key. They don’t match. The Museum originally claimed to own Brand’s key, then abandoned the claim.
None of this stopped the object from acquiring an aura. The key is now reported to be expected to fetch around R21 million. In the Supreme Court of Appeal, Norman AJA, dissenting, found that Brand had himself identified the key as one that opened Mandela’s cell.1 Brand’s answer is that he had inadvertently mislabelled the two images in his first answering affidavit and corrected the error in his second.
The judgments below
High Court2
On 4 December 2023, a full court — Ngalwana AJ writing, with Ramawele AJ and Baqwa J concurring — dismissed the interdict to stop the sale of the objects.
SAHRA’s case rested on a 2019 notice declaring broad types of objects — anything “related to significant political processes, events, figures and leaders” — to be deemed heritage objects. Before deciding whether the 29 items fitted that description, the Court asked whether the description itself was lawful. It called this the “antecedent question,” and answered it against SAHRA: the wording, it held, failed a requirement in the Act (section 5(3)) that the rules governing heritage resources be “clear and generally available to those affected thereby.” On the Court’s reading, “related to” and “associated with” were so loose that almost anything Mandela had ever touched could be deemed a heritage object — an outcome it called an absurdity, and a dangerous one, since exporting a deemed heritage object without a permit is a criminal offence carrying up to five years’ imprisonment (sections 32(19) and 51(1)(a)).
To test that looseness, the Court built its own twelve-part checklist3 from the Act’s long title and preamble — a heritage object, it reasoned, should be something that helps define national identity, facilitates healing, etc. — and found it hard to see how a pair of sunglasses or an autographed book earned a place on that list. It also noted that SAHRA had never seriously disputed Brand’s evidence that his key was not, in fact, the real Robben Island cell key.
Dr Mandela’s separate bid to have SAHRA’s “decision” reviewed and set aside was dismissed on a narrower point: there was no individual decision to review, because SAHRA had declared a broad type of object under section 32(5)(b), not any specific item under section 32(5)(a).
Leave to appeal was refused by the High Court itself on 20 March 2024, but granted on petition to the Supreme Court of Appeal.
Supreme Court of Appeal4
On 22 January 2026, the majority — Mocumie, Kgoele and Koen JJA, per Meyer JA — dismissed the appeal with costs.
The starting point was interpretation. Applying the Cool Ideas approach of reading a provision by its language, its context and its purpose, the majority rejected SAHRA’s central argument that section 32 sets up a “two-stage permitting process,” under which a deemed object could be controlled first and assessed for genuine heritage status only later. On the majority’s reading, SAHRA’s version of events would sweep in “absolutely anything”5 ever associated with Mandela — a result so uncertain that it offended section 5(3) of the Act (which requires the rules to be clear), and so broad that it would let the state make arbitrary inroads on an owner’s property, engaging section 25(1) of the Constitution.
On the words “relating to” and “related to” in the declarations, the majority found that this was too broad. It had to show that each of the 29 items actually met the relevant declaration. SAHRA, the majority found, had never pleaded the underlying facts to support the heritage status conclusion for any item, relying instead on an auction catalogue and a newspaper article, both of which were inadmissible hearsay as against Brand.
Finally, the majority held that even the relief itself overreached: the Act prohibits exporting a heritage object without a permit, but says nothing about its sale, alienation, or movement from place to place. SAHRA’s request to restrain the sale and alienation of the objects was held to be not legally sustainable.
Norman AJA dissented. She would have upheld the appeal, set aside the High Court’s order, and granted SAHRA the relief it sought — with each party bearing its own costs.
She began with a procedural objection: the “antecedent question” that decided the whole case had never been raised by either party, and the High Court should not have decided the matter on an issue nobody had been given the chance to address.
On the substance, she held that the High Court had simply misunderstood how a deeming provision works. Sections 32(21) to 32(24), on her reading, do set up a two-stage process: deeming (a “statutory fiction”)6 takes effect the moment someone tries to export an object, and expert assessment follows afterwards. If SAHRA were required to prove an item’s heritage status on affidavit before it could step in, she reasoned, that would make the expert-assessment stage pointless and leave the agency “hamstrung in discharging its mandate.”7 Finding the declarations too broad — when nobody had actually challenged their constitutionality — was, in her view, a court overstepping into territory that belongs to the executive, especially given the public consultation process SAHRA had followed in drawing them up.
On the interdict itself, she found that SAHRA had a clear right to protect the national estate, that the unpermitted export was itself the interference justifying court intervention, and that there was no other remedy available, since neither respondent had offered any undertaking not to sell or re-export the items. She also held that none of this deprived anyone of property under section 25, since ownership itself was never in question — only whether the items could be exported and sold without SAHRA’s involvement.
Finally, on the facts, she held that Brand and Dr Mandela’s denials weren’t good enough in law: their own documents — the lending agreement describing the items as heritage objects, the auction catalogue, and their correspondence — contradicted the version they were now putting forward.
That split is what SAHRA took to the Constitutional Court.
In the Constitutional Court
At Braamfontein, the applicants’ case is that the litigation was never about proving heritage status, but about getting the objects back so heritage status could be assessed by experts.
They submitted the Heritage Act lets SAHRA declare broad categories of objects, not individual items, as needing an export permit. Two such declarations exist: one from 2002, covering objects linked to South African history and national leaders; one from 2019, covering objects linked to significant political figures and events. Neither declaration has been challenged in court.
Once an object falls within a declared category, it is automatically treated, “deemed”, as a heritage object for export-control purposes. Only after that trigger does an expert assessment decide whether it’s genuinely significant enough to be formally declared, or released. Casting a wide net at the export-control stage, then narrowing it through expert review, is how the system is meant to work.
SAHRA says the courts below got this backwards — requiring proof, on affidavit, that each of the 29 items was already significant before any interdict could be granted, collapsing the two-step process the Act sets up. This is argued to hamper future work by SAHRA, and that it must be set right by the Constitutional Court in any case.
Five constitutional issues are argued to have arisen, briefly:
Separation of powers — the courts substituted their own test for one Parliament and SAHRA had already built.
Statutory interpretation — the Constitutional Court has never ruled on what this “deeming” provision actually means.
International law — South Africa’s obligations under UNESCO and UNIDROIT conventions on cultural property, plus an African Union position on asset recovery, all favour a broad, precautionary approach — which the SCA’s narrow reading ignored.
Property rights — a temporary hold on export, pending assessment, isn’t the same as taking someone’s property away; and even if it were, the Act includes a built-in compensation process (SAHRA must either buy the object, let it be exported, or send the dispute to arbitration) that the SCA never considered.
Access to courts — the High Court decided the case on an issue nobody had a chance to address, denying SAHRA a fair hearing — and if that stands, SAHRA says it will not be able to enforce its mandate through the courts.
The applicants also argue the SCA majority contradicts itself: it calls Mandela an icon of democracy and the “Father of the Nation,” and then holds that none of that significance can help decide whether objects connected to him deserve protection.8 I circle back to this below.
Dr Makaziwe Mandela’s case is that this is a factual dispute dressed up as a constitutional one, and that the Constitutional Court isn’t the right forum for it. SAHRA never raised any constitutional issue in its original papers; it only started calling this a constitutional matter after losing at the SCA, which she says is too late. Amongst other legal points taken, she rebuts the claim item by item: several of the artworks are prints anyone can buy online, one book was given to her family only in 2018, and the famous Obama blanket was never actually gifted to her father.
She pushes, by way of lawyer no doubt, the “everything Mandela touched” argument: if SAHRA is right, she’d be legally obliged to safely store her father’s pyjamas, report any fishmoth damage to them, and notify the agency if she ever donated them to charity. On the international law arguments, she says none of it was properly pleaded in the lower courts, and it’s too late to introduce it now.
Mr Brand’s arguments broadly follow those of Makaziwe Mandela and what was raised in the lower courts.
The founder’s things, in the founder’s court
While the fight is framed in terms of law, the real impetus of this matter lies in the symbolic weight Mandela carries as the leading figure who founded the constitutional order, as it is understood in the popular imagination.
Dist. Prof. Philippe-Joseph Salazar’s scholarship on South African political rhetoric describes Mandela, alongside Desmond Tutu, as belonging to a tradition of orators — figures who shape a nation not by drafting its founding text per se, but by giving the transition its meaning through speech, ritual and public performance.9
Mandela is, in the national consciousness and as acknowledged by the SCA, the country’s “founding father”. This rhetoric is part of what holds the constitutional order together, giving South Africans a shared account of where their democracy came from and why it deserves their loyalty. Accordingly, a dispute over a handful of his personal possessions has drawn attention well beyond what an ordinary heritage-permit case would attract. It is significant that the fight is now playing out in the Constitutional Court.
In one of the many artworks about or of Madiba in the Constitutional Court Art Collection, Wilma Cruise’s Right to Life inscribes Mandela’s (edited) words from the Rivonia Treason Trial dock onto the Constitutional Court itself — turning his strategic legal plea made in a courtroom, under threat of a death sentence, into a universal moral truth. Through this installation, the Court borrows Mandela’s ethos to authorise itself and, in doing so, turns an act of resistance into a validation of the order that followed.
Accordingly, a question about Mandela’s legacy lands differently in the Constitutional Court than it would in any other court, because the Court’s own visual project leans on his ethos (in part only, but in no small measure) to establish its authority. Asking this Court to rule on the status of his belongings is not quite the same as asking any other bench, and it will be interesting to see whether that context shapes the outcome.
There are risks and limits to placing too much importance on any human figure. Nevertheless, this case is weightier than it would have been if the objects had belonged to any other person of national importance. No doubt the Constitutional Court is mindful of this significance. It is a judgment not only about heritage law, but also about how we manage the national consciousness, through its foundation rhetoric. This is a symbolic task that has been given to the Constitutional Court beyond its purely doctrinal work.
While this is happening, SAHRA is a respondent in the review proceedings concerning the state and governance of the Johannesburg Art Gallery — an institution whose decline is thoroughly documented and whose collection is of a significance that dwarfs these Mandela objects. How SAHRA addresses its watchdog role there will be worth watching.
Appearances
For the applicants (South African Heritage Resources Agency, Robben Island Museum, Department of Sport, Arts and Culture): Robin Pearse SC, Yanela S Ntloko and Deborah Mutemwa, instructed by Bowmans (Clement Mkiva / Bongumusa Sibiya / Angela Matlala)
For the first respondent (Dr Makaziwe Mandela): David Smith (heads of argument), Richard Buchanan SC appearing; instructed by Wesley Hayes Attorneys, Komani, c/o Marston and Taljaard Attorneys.
For the fourth respondent (Christo Brand): R W F MacWilliam SC and R van Wyk, instructed by ZS Incorporated.
SCA judgment, Norman AJA (dissenting), paras 67–69.
SA Heritage Resources Agency and Others v Dr Makaziwe Mandela and Others, Gauteng Division, Pretoria, case number 15867/2022, heard 21–22 November 2023, judgment delivered 4 December 2023.
Para 63: “As I have indicated earlier, the long title and preamble of the Act are instructive. They make plain that not every object that is merely “related to” or “associated with” a significant political event or process or person is a heritage object. On a purposive and contextual reading of the Act through the prism of its long title and preamble, it seems to me that the object must, for example, (1) be a resource of national significance; (2) be instrumental in the nurturing and conservation of a legacy worthy of being bequeathed to future generations; (3) be unique and precious in a manner that cannot be renewed; (4) help us to define our cultural identity; (5) lie at the heart of our spiritual well-being; (6) foster in us the power to build our nation; (7) have the potential to affirm our diverse cultures; (8) shape our national character; (9) contribute to redressing past inequities; (10) educate, deepen our understanding of society and encourage us to empathise with the experience of others; (11) facilitate healing and material and symbolic restitution; and (12) promote new and previously neglected research into our rich oral traditions and customs.”
SAHRA and Others v Dr Mandela and Others (825/24) [2026] ZASCA 06, heard 13 November 2025, delivered 22 January 2026.
Para 17.
Para 47: A deeming provision is a “statutory fiction” — a term borrowed from English law, where a court once quipped that once you accept the fiction, you shouldn’t “permit your imagination to boggle” at what follows from it.
Para 82.
SAHRA’s founding affidavit in the CC, paras 89–90; para 2 of the SCA majority judgment.
Philippe-Joseph Salazar, An African Athens: Rhetoric and the Shaping of Democracy in South Africa (Lawrence Erlbaum Associates, 2002).
It’s interesting how a single key can raise such big questions about who gets to preserve our history. 🤔
I think protecting our heritage matters, but so does making sure the institutions responsible have clear rules and are held accountable.