The Three Elephants

Medium: Sculpture

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Artist: Andries Botha

Confronting Bodies: eThekwini municipality

Dates of Action: June 3rd 2010

Location: Warwick Triangle Viaduct in Durban, South Africa

Description of Artwork: Life-size public sculpture of three elephants emerging from a sea of stones which symbolize an apolitical metaphor for tolerance, coexistence and due consideration for a vulnerable ecosystem.

The Incident: eThekwini municipality commissioned Andries Botha to make "The Three Elephants", a public sculpture symbolizing an apolitical metaphor for tolerance, coexistence and due consideration for a vulnerable ecosystem. On June 3rd 2010, whilst Botha was working on the final stage of the sculpture, eThekwini municipality ordered two of the elephant figures to be taken down. Although no reasons were cited, it is suspected the removal is due to the African National Congress's fear that the sculpture too closely resembles the symbol of the Inkatha Freedom Party, a political rival. Furthermore, the municipality has refused to give an undertaking to safeguard the integrity of the sculpture, which means the elephants may be removed and or modified at any time.

Botha’s application is brought against the municipality and other parties, including Arts and Culture Minister Paul Mashatile. Botha has asked the court to confirm his rights, to review the municipality’s decision and to interdict the municipality (and others) from modifying, altering or destroying the work.

The main issue being addressed in court is that the municipality's decision to remove part of the sculpture is a decision to destroy, mutilate or change a work of art in a manner that undermines the integrity of the artwork contrary to section 16(1)(c) of the constitution, and therefore a violation of the public’s right to freedom of artistic expression - the right to see the completed work of art.

Also to be debated are the general constitutional principles relevant when public money is used to commission public artworks. The municipality’s decision, taken during the commissioning process, arguably constitutes direct state interference with the overall vision of the artist and with the creative process.

Botha is also bringing separate claims in contract for breach of contract, stand-off penalty charges and damages, together with damages (in delict) for contractual interference.

Results of Incident: Pending

Source: Toby Orford, "The Three Elephants public artwork is the first to test a vital freedom of expression clause in our constitution", Business Day, October 13 2011, http://www.businessday.co.za/Articles/Content.aspx?id=155835