Court dismisses Gabrielle Goliath’s Venice Biennale challenge against Gayton McKenzie

South Africa is unlikely to be represented at the 61st Venice Biennale this year after the Gauteng High Court in Pretoria dismissed Gabrielle Goliath’s urgent application to reinstate her artwork Elegy for the international exhibition.

Not only did the court dismiss the application, which would have seen Goliath represent SA at the prestigious international art event this year, but it also ordered that costs be awarded to the respondents, including Minister of Sports, Arts and Culture Gayton McKenzie.

Judge Mamoloko Kubushi gave no reasons in the written order handed down on Wednesday, 18 February 2025.

Goliath, in a statement from her team, said she was “profoundly disappointed” with the ruling.

“The judge dismissed the application in two sentences, and a full week after hearing argument (on the afternoon of the Venice Biennale’s submission deadline for National Pavilion exhibition plans). It was also a shock to learn that she has ordered us to pay costs of the application, including costs of a senior and junior counsel.

“These are punitive measures, enacted against those the Department of Sport, Arts and Culture is mandated to support, and will certainly discourage others in the arts community from attempting to defend their constitutional rights in court.

“We believe this ruling sets a dangerous precedent, jeopardising the rights of artists, curators and creatives in South Africa to freedom of expression – freedom to dissent. It goes without saying that we will be contesting this ruling through an appeal.”

The non-profit Campaign for Free Expression (CFE), which was admitted as amicus curiae, or friend of the court, in the matter, said the judge’s lack of reasons in her order “defies comprehension”.

Its executive director, Nicole Fritz, said: “It’s obviously something that we are alarmed by. It’s more than disappointing. We are just very concerned at the order without reason, in a context where the minister is alleged not only to have conducted himself unlawfully but also to have undermined the independence of the arts sector.”

In earlier court papers, Fritz had argued that McKenzie’s actions had a “manipulating effect on artistic freedom” and that he had violated his constitutional obligation as a government representative to be “truthful and transparent”.

Meanwhile, McKenzie’s spokesperson, Stacey-Lee Khojane, said: “We welcome the ruling, thank you.”

Allegations of unlawful interference

Daily Maverick earlier reported that the dispute started when McKenzie sought to interfere with, and then cancel, Goliath’s participation after an independent selection committee chose her to represent South Africa at its national pavilion in Venice.

Read more: Gayton vs Goliath — minister’s machinations to cancel Venice Biennale artwork head for court showdown

Initially, McKenzie had taken issue with Elegy because part of the “work of mourning” engaged with the Israel Defense Forces’ killing of women and children in Gaza. McKenzie also publicly claimed, spuriously, that it was funded by the Qatari government – an allegation that was debunked by Daily Maverick.

The spokesperson for the South African Zionist Federation (SAZF), Rolene Marks, welcomed the judgment, which she said underscores the need for cultural sovereignty and transparency, adding that the country’s global representation ought to reflect national pride and creative integrity, not hidden sponsorships or proxy politics.

“This ruling affirms the minister’s authority to safeguard South Africa’s national cultural platforms from external interference. It reinforces the principle that taxpayer-funded representations of our country must remain sovereign, transparent and grounded in genuine artistic expression, not repurposed as vehicles for foreign geopolitical agendas,” Marks said.

Read more: ‘A power he doesn’t have’ — Gayton McKenzie’s Venice Biennale cancellation slammed in court

Goliath’s lawyers sought to have the court declare that McKenzie’s attempts to interfere with and obstruct the independent selection committee’s decision to select her work were unconstitutional, unlawful and invalid.

They also wanted to interdict McKenzie from taking any further steps to interfere with or obstruct Elegy from being showcased at the Biennale.

This came after the department had appointed the non-profit organisation Art Periodic to set up a selection process for participation in the Biennale.

Goliath, represented by media law expert Dario Milo and advocate Adila Hassim SC, said McKenzie’s actions were ill-conceived attempts at after-the-fact justification and amounted to contrived, unlawful interference.

In her founding affidavit, Goliath had argued that the decision by the selection committee appointed by Art Periodic constituted an administrative action “which is binding and valid until it is set aside” by the courts. McKenzie did not approach the courts; instead, resorting to “unlawful self-help”, according to Goliath’s affidavit.

The last part of Goliath’s application said McKenzie’s actions showed a worrying clampdown on artistic freedom, which is protected in South Africa’s Bill of Rights. She argued that his conduct “is incompatible with the right of freedom of expression and the rule of law”.

In addition, she warned that because of the minister’s behaviour, South African artists might in future feel they “must self-censor to ensure that their work complies with the views and beliefs of those who happen to hold high executive office”, which she said undermined freedom of expression. DM

This story was updated at 6:40 on 19 February 2025 to include Gabrielle Goliath’s statement.