The Pretoria high court finally provided reasons on Sunday for its dismissal of artist Gabrielle Goliath’s application challenging sports, arts & culture minister Gayton McKenzie’s termination of the exhibition of her work, Elegy, as South Africa’s pavilion offering at the 2026 Venice Biennale.
The judgment, delivered 11 days after the urgent application was heard on February 11, finds Goliath had no legal standing to bring the case and it did not concern freedom of artistic expression or the rule of law, as the applicants and we, as amicus curiae, had contended. Instead, the court characterises the matter as an ordinary private agreement between two parties: the department of sport, arts & culture, and Art Periodic, the entity designated by the minister to manage and deliver South Africa’s pavilion.
The applicants have already indicated they intend to approach the Supreme Court of Appeal. We will seek to continue our role as amicus in that process, looking to highlight the implications of the minister’s conduct for artistic freedom for all artists in South Africa.
However, the sad fact is that even if the appeal succeeds, the particular injustice visited on Goliath cannot be undone. Venice Biennale deadlines for proposed national installations have closed. Domestic court processes, even if ultimately vindicating her, cannot compel their extension or reopening.
Regrettably, the high court’s own conduct has factored into this outcome.
No disinterested observer of our courts can fail to appreciate the profoundly challenging environment in which they operate. Our judiciary is severely underresourced and confronts overwhelming backlogs. These pressures are only amplified in urgent matters. Yet, for a court to issue an order without any reasons, as occurred in the Goliath matter, eight days after hearing argument, and while fully apprised of the urgent Venice Biennale submission deadlines, is not merely dilatory. It is potentially prejudicial to the constitutional right of access to justice, in that any realistic possibility of an urgent appeal is in effect foreclosed.
Yet, for a court to issue an order without any reasons, as occurred in the Goliath matter, eight days after hearing argument, and while fully apprised of the urgent Venice Biennale submission deadlines, is not merely dilatory. It is potentially prejudicial to the constitutional right of access to justice, in that any realistic possibility of an urgent appeal is in effect foreclosed.
Without written reasons, neither litigants nor appellate courts can meaningfully assess the prospects of success on appeal. It will be for higher courts to determine whether this dispute is properly characterised as an ordinary private agreement in relation to which Goliath has no standing. As amicus, we strongly believe this not to be so, and that even if it is an ordinary private agreement, implications for artistic freedom and rule of law must be weighed.
However, regardless of that further litigation, it is important to reflect on a passage cited by the court in its judgment: “When a party has no standing, it is not necessary to consider the merits unless there is a strong indication of fraud or other gross irregularity in the conduct of a public body.”
The court essentially concludes its judgment with this citation, as if it were dispositive. In truth, it should have been the starting point.
Irregular exercise of public power
This formulation recognises technical rules of standing must yield where there are credible indications of irregular exercise of public power. It affirms the judiciary’s supervisory role in ensuring executive authority is exercised lawfully, rationally and in good faith.
It should have been among the starting points of the court’s inquiry precisely because the minister’s justifications — to the public and before the court — have lacked the candour demanded of executive authority by our constitution.
In his letter of January 2 terminating Goliath’s exhibit, the minister explained it “would not be wise or defensible for South Africa to support an art installation against a country currently accused of genocide while we as South Africa are also fielding unjustified accusations of genocide”. This rationale amounted, in substance, to an explicit veto of subject matter.
Moreover, reference to other contemporary art productions currently garnering prestige and acclaim for their respective countries indicates it is irrational. The docudrama The Voice of Hind Rajab recounting the death of a five-year-old girl trapped in a car with her deceased relatives in Gaza, and the targeting of Palestine Red Crescent rescuers attempting to reach her, is likely to earn Tunisia the best foreign film award at this year’s Oscars, having already won the Grand Jury Prize at the 82nd Venice International Film Festival.
Globally, artists and their countries are being honoured for confronting precisely the kinds of political realities the minister excluded. Perhaps reminded that this explicit censorship did not align with his mandate, the minister shifted his justification in public. Instead, he insisted he was acting to protect South Africa’s pavilion from insidious foreign interference. That narrative was shown through investigative reporting to be such a sham that he did not even attempt to advance it before the court.
Globally, artists and their countries are being honoured for confronting precisely the kinds of political realities the minister excluded. Perhaps reminded that this explicit censorship did not align with his mandate, the minister shifted his justification in public.
What did, however, emerge in the litigation was more troubling. Evidence indicated the minister and his advisers appeared purposefully to withhold knowledge of Venice Biennale deadlines from the applicants and the court. Had they succeeded, this would have had the predictable effect of rendering the matter moot ahead of the hearing, despite their knowledge of the monumental efforts undertaken by the applicants to secure an urgent slot.
In constitutional litigation public authorities are subject to a duty of candour towards litigants and the courts. The deliberate withholding of material information undermines effective judicial oversight and distorts the adjudicative process.
Submissions before the court characterised the minister’s conduct as “dishonest, underhanded and designed to evade accountability”. They are allegations of the gravest sort that might be directed at a minister. Yet the judgment leaves them unaddressed. That is especially perplexing when the court itself notes a “strong indication” of “gross irregularity in the conduct of a public body” will make standing irrelevant to the adjudication of a matter involving a public body.
As things stand, taxpayers continue to bear the cost of renting exhibition space in Venice for the purpose of participating in the Biennale. This year that space will stand empty and echoing. That is regrettable, but perhaps an ironically fitting reflection of the minister’s self-regarding, ill-conceived plan to use the pavilion to showcase his “positive message” about the country: significant sunk costs. Nothing to show.
• Fritz is executive director of the Campaign for Free Expression.
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