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Bid to reverse Santu Mofokeng’s donation of his works falls flat in high court

The late photographer and author of several books, Santu Mofokeng. Picture: African News Agency (ANA)

The late photographer and author of several books, Santu Mofokeng. Picture: African News Agency (ANA)

Published Sep 27, 2023


Pretoria - A legal wrangle has ensued over the pictures and works of world-renowned local photographer and author of several books, Santu Mofokeng.

Mofokeng died in 2020 and donated all his works to the Santu Mofokeng Foundation.

The executor of his estate turned to the Gauteng High Court, Johannesburg to have the donation agreement Mofokeng entered into with the foundation before his death declared unenforceable.

The court was also asked to order the foundation to return the artworks to the executor within seven days.

The application was initially brought by Boitumelo Mofokeng, who remarried the now-deceased in 2016. She was appointed administrator of his property after his death.

During 2008, Mofokeng (the deceased) approached gallery owner Warren Siebrits with a view to housing his artworks at Siebrits’ gallery. He had arrived with his large collection of photographs and requested that Siebrits “take custody and care of them”.

Lunetta Bartz, a consultant in the art world, was Siebrits’ wife at the time. She took up the task of curating and commercialising Mofokeng’s artworks.

A year later, when Siebrits’ gallery closed, Mofokeng asked Bartz to continue offering him professional assistance in managing his artworks.

In August 2015, Mofokeng and Bartz concluded an “exclusive agency agreement”. The agreement was terminated in November 2015 when the donation agreement was entered into. The result was that all his artworks were donated to the foundation.

In 2013, Mofokeng was involved in a car accident and began to suffer from slurred speech. In October 2015, it was established that he had a terminal disease and that his life expectancy was about three years.

The executor of his estate initially argued that Mofokeng was mentally incapacitated and did not have the requisite mental capacity to conclude the donation agreement at the time that it was concluded.

It was later argued that if it was found that Mofokeng had the requisite mental capacity to conclude the purported donation agreement, then the conclusion and enforcement of the agreement was contrary to public policy.

When Mofokeng was diagnosed with a debilitating disease in 2015, he agitated for the establishment of a foundation.

Judge Gcina Malindi said this indicated that it was not mental incapacity that had afflicted him.

“The medical evidence before court excludes mental incapacity. His wish to preserve his legacy was expressed as far back as 2009,” the judge said.

Judge Malindi further commented that as none of his family could assist him in preserving his legacy, he had already in 2010 executed his last will and testament in which he sought to bequeath his artworks to the Smithsonian institute.

“It is clear from this medical evidence that at the time of the conclusion of the foundation agreement Mr Mofokeng was suffering from physical conditions that were debilitating. There is no evidence of mental incapacity,” the judge said.

The judge concluded that the executor of his estate had failed to establish that Mofokeng lacked mental capacity when he entered into the agreement and turned down the application.

Pretoria News