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

“There is both sound and fury to be heard, but you’ll find it signifying very little,” said Advocate Adila Hassim SC, responding sharply to the arguments made by counsel for Minister of Sports, Arts and Culture Gayton McKenzie during a virtual hearing held by the North Gauteng High Court on 11 February.

The court was hearing an urgent application to prevent McKenzie from cancelling artist Gabrielle Goliath’s participation in the 2026 Venice Biennale.

“At the heart of this is a minister exercising a power that he does not have,” argued Hassim, acting for Goliath. “He says he does, but nowhere [in the documents between McKenzie, his department, and Art Periodic, the nonprofit appointed by the government to organise South Africa’s exhibition at the 2026 Venice Biennale] is there any veto right,” she concluded.

McKenzie’s counsel, Advocate Zinzile Matabese SC, had spent the final 40-odd minutes of a truncated hearing arguing that the minister’s cancellation of Goliath’s participation in the Biennale was not about constitutional rights such as freedom of expression, but merely about contractual law.

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

Despite this argument, when asked by Judge Mamokolo Kubushi where the minister’s right to veto the artwork could be found, Matabese had scrambled and scratched around to find contractual proof that his client had the power to determine what artworks were selected for the South African Pavilion, or that he could prescribe the content of the selected artwork.

He eventually offered up annexure “GG12”, which turned out to be a letter Goliath, curator Ingrid Masondo and studio manager James Macdonald had written to McKenzie on 4 January explaining the nature of the work to the minister and defending it against his allegations of being “highly divisive in nature and relate[d] to an ongoing international conflict that is widely polarising”.

When this was pointed out, Matabese settled on claiming that the minister “alludes” to the “right to review and approve” the artwork for the Biennale in his responding affidavit.

Gabriel’s artwork, Elegy, described as “a work of mourning”, engages with the killing of women and children in Gaza by the Israeli Defence Force since October 2023, contemporaneous femicide in South Africa and the German colonial genocide in Namibia at the turn of the 20th century.

McKenzie, a self-proclaimed Zionist and leader of the right-wing Patriotic Alliance, had previously sent letters to Art Periodic attempting to interfere with Goliath’s work before cancelling her participation in the Biennale.

Around his floundering, Matabese had sought to refute the other claims made by Goliath’s legal team.

The matter was not urgent, he argued, because Goliath had had enough time to start litigation much earlier. The urgency was “designed to inconvenience everyone to the benefit of the applicants”.

He argued that McKenzie had been “deceived” by Art Periodic, which had allegedly proposed “two female artists” to participate in the Biennale when it first approached the Department of Sports, Arts and Culture with a proposal for a public-private partnership for the Venice Biennale.

Goliath did not have legal standing to approach the courts because the Biennale contract was between Art Periodic and the department, not with Goliath.

“They are the children of Art Periodic, they cannot now pretend to be the adults… The applicants are taking up a fight that is not about them,” Matebese said. Allegations of censorship and attempts to dictate to the artist were “really non-issues”, according to Matebese, who said the matter was actually about “access to the pavilion” which McKenzie had denied Art Periodic after a “breakdown of trust” between the nonprofit and the minister.

This matter was not about freedom of expression, said Matabese, accusing Goliath et al of “not bringing before this court a genuine constitutional matter” but rather one “masquerading behind a contractual case”. Because of this, Matebese argued, the costs of two counsel on a punitive scale should be awarded against the artists themselves.

‘Litigation misconduct’

Earlier in proceedings, which had been shortened because of Matabele’s unavailability for the entire day, Hassim had suggested that if her team had more time, they would have also argued, if successful in their application, that costs for two counsel on a punitive scale be awarded against McKenzie and his adviser Charles Cilliers in their personal capacity.

This, Hassim argued, was because both had engaged in “litigation misconduct”. McKenzie and Cilliers had been privy to information about Venice Biennale deadlines, which had the potential to render the matter moot, but had not brought it to the attention of the court.

Hassim said her team had only got wind of these emails on 10 February after a leak from a government source. Some of this correspondence was reported on by Daily Maverick on 11 February.

Read more: Artist Gabrielle Goliath sues Gayton McKenzie over cancellation of work for Venice Biennale

Hassim urged “strict censure by the courts” since there was an “ineluctable link that one can’t help making” between McKenzie and Cilliers’ knowledge of the Biennale deadlines, the minister taking weeks to appoint counsel, missing his deadline to file a responding affidavit by 11 days and then arguing the mootness of the case in court.

Instead of keeping litigants and the judge in the loop about deadlines, “the minister sat back, and that he is not allowed do”, Hassim said.

“This matter is about respect for the rule of law and even in the manner of litigation, there is a disrespect for the rule of law.”

Hassim argued that McKenzie’s “ex-post facto rationalisation” about why he cancelled Goliath’s work – ranging from his Zionist predilection to unfounded allegations that the work was funded by a “foreign government” to the legal argument that it was merely a contractual matter – doesn’t save it from passing the rationality test required of actions taken or decisions made by public officials.

Read more: McKenzie’s ‘foreign power’ defence for cancelling Venice Biennale artwork falls flat

Advocate Nick Ferreira, also appearing for Goliath, argued that there was Constitutional Court jurisprudence which made “unconscionable state conduct” – the breaking of a promise publicly given by an organ or member of state – “patently unlawful”.

“The minister took an unlawful decision to break a promise. The minister’s conduct is patently unlawful. […] There is no explanation for this, only a bare denial,” Ferreira argued.

Censorship

Advocate Ben Winks, acting for the Campaign for Free Expression, which was admitted as amicus curiae – friends of the court – argued that funding of artists by the department was required to happen at “arm’s length”. This principle, he argued, was “designed to insulate artists” from government interference.

Winks said considering South Africa’s history, where the apartheid state had used millions of rands to create propaganda, including the multi-artist Peace Song in the 1980s during a time of violent and bloody states of emergencies, it was dangerous for government to cultivate propaganda with its arts and culture budgets.

“The bursar, the person holding all the coins, cannot say I will support those who support my point of view,” he said.

He argued that McKenzie had sought to “police” Goliath’s artwork with the intention of creating propaganda – as made clear in his letters to Art Periodic when he demanded work that would “sell” South Africa.

He also accused McKenzie of lying about the entire matter. “There has been an attempt to pull the wool over the court’s eyes, the applicants’ eyes and the public’s eyes,” he said.

Judge Kubushi reserved judgment, noting that she would decide whether to hand down before 13 or 18 February as soon as she established clarity over Venice Biennale deadlines. DM