Miriam Makeba performs at the 7th Cape Town International Jazz festival in 2006.
The department of arts and culture wasted public funds to appoint private lawyers to remove the trustees overseeing late singer-songwriter Miriam Makeba’s affairs.
This is according to an investigation by public protector Busisiwe Mkhwebane, who released a tranche of reports on Monday. The reports covered allegations of maladministration in the leasing of communal land, the irregular approval of a disability grant, the irregular granting of mining rights to AngloGold Ashanti and more.
In relation to the allegations relating to Makeba’s trust, the public protector found that the department of arts and culture contravened the provisions of the Public Finance Management Act, treasury regulations and the Culture Promotion Act when it provided funding for litigation in which it was not a party.
In 2018, copyright lawyer Graeme Douglas Gilfillan lodged a complaint alleging that between 2009 and 2018 the department had entered into agreements with various private law firms.
The firms were allegedly hired to ensure the removal of Gilfillan and his fellow trustee, Dumisani Motha, from the ZM Makeba Trust. Motha acted as Makeba’s manager and agent upon her return from exile, when she was re-establishing her music career in South Africa. The singer, whose full name was Zenzile Miriam Makeba, died in November 2008 aged 76.
Gilfillan alleged that the department incurred irregular, fruitless and wasteful expenditure by making direct payments to the law firms and other intermediaries.
In 2009, the trust’s beneficiaries — Makeba’s grandchildren, Zenzile and Nelson Lee — requested funding from the department to appoint ENSAfrica in their fight to remove Gilfillan and Motha.
The pair were accused by the Lee family of breaching their fiduciary duties by mismanaging the trust’s funds and of holding Makeba’s legacy for ransom. Motha allegedly continued to co-administer the trust after Makeba’s passing in 2009, despite having resigned as a trustee. Gilfillan was accused of concealing Motha’s resignation.
In September 2009, the department’s director general at the time, Themba Wakashe, attended a meeting where he was briefed on the Lee family’s complaints against the two trustees.
According to a briefing note from the meeting, referenced in the public protector’s report, the department’s director general of legal services, Anil Singh, and its acting chief financial officer, Mike Rennie expressed reservations over whether it had the budget to fund the litigation.
ENSAfrica required an upfront payment of R500 000. It was estimated that the litigation would cost about R3-million in total.
But in 2012, the Lee family, unhappy with ENSAfrica’s work, sought to appoint another law firm. A sum of R1-million was requested from the minister’s discretionary fund to do so. According to correspondence obtained by the public protector, this funding was procured with the help of the office of the presidency.
In 2017, the department expressed reservations over whether it should continue to fund the private litigation. The minister, according to an email, was willing to do so but, in light of financial constraints, the department hoped that further litigation may be done on a pro bono basis or at a reduced rate. ENSAfrica was not willing to wrap up the case for free.
In December 2017, the department signed an agreement to provide financial support to the Makeba beneficiaries to the tune of R912 000 during the 2017-18 and 2018-19 financial years. In 2018, in the wake of further litigation, a further sum of R487 000 was requested from the department.
In response to the allegation, the current director general, Vusumusi Mkhize, said his department did not engage the services of private attorneys and instead made funds available to the Lee family directly. These funds, he said, were made available in terms of the Culture Promotion Act.
The Act allows the minister to finance any organisation or project that promotes arts and culture in the country.
“The view of the department was that the grandchildren of the deceased sought to protect the legacy of the deceased and that would have an impact throughout the republic because the deceased was one of the national icons and liberation struggle heroines through her music,” Mkhize said in his affidavit.
“The department, as the custodian of heritage and preserver of arts and culture in the republic, believed that it has an obligation to preserve and protect the legacy of the late Ms Miriam Makeba.”
Mkhize asserted that the department had no record of ever entering into agreements with law firms as alleged by the complainant. But he conceded that the department had made payments directly to ENSAfrica.
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