Dr Sizwe Mabizela
On the phone, one of three ways he is willing to conduct an interview with the Mail & Guardian (the others being WhatsApp and email), Mike Stainbank confesses to waiting for the sheriff to knock on his door.
“It could be any day from now,” says the entrepreneur and brand architect, who faces three months in prison, having lost an appeal to overturn a contempt of court ruling.
Stainbank says he is now awaiting a Constitutional Court ruling on the matter.
Stainbank, who accuses the media of overlooking his plight on the one hand, is, on the other, selective to the point of paranoia about face-to-face interviews. “I know a media lynching when I see one, bru,” he says during one of several phone exchanges. “I don’t want you to come here and write something about how, ‘when I saw him he was trembling’ and so on.”
The court order he disobeyed and the subsequent lost appeal stem from one of his many cases against an entity registered as the South African Apartheid Museum at Freedom Park. The order prohibits him from publishing and disseminating statements that, among other things, characterise the present and past directors of the above entity as “criminals, racists or liars” who have stolen or misappropriated his intellectual property.
Krok brothers
The Apartheid Museum, owned then by brothers Solly and Abe Krok’s Gold Reef Resorts, opened its doors in 2001. Gold Reef Resorts, along with its holding company Akani Egoli, bankrolled the project as part of a gambling licence bid for Gold Reef City Casino.
They incorporated the South African Apartheid Museum at Freedom Park in 2001. The directors have included Richard Moloko, George Bizos, John Kani and Reuel Khoza, who, at one point or another, were at the receiving end of Stainbank’s diatribe.
As of February 24 2011, Gold Reef Resorts was acquired by Tsogo Sun Holdings in a reverse merger transaction. According to Tsogo Sun, at the time of the merger, the Kroks’ shareholding fell to 5%, which is currently owned by a descendant of the Kroks.
Stainbank, an astute businessman, who has been behind the careers of artists such as Sibongile Khumalo and projects such as the Es’kia Institute, is now known as the relentless, “vexatious” litigant (according to one judge) who is often his own worst enemy in a 13-year battle with the proprietors of the museum, south of Johannesburg.
Stainbank always challenged the legitimacy of the museum’s name, arguing his own trademark was unfairly expunged, and that the concept was plagiarised from ideas he had documented in a 1998 prospectus. Stainbank says, although he first registered the trademark “The Apartheid Museum” in 1990, he could only secure its go-ahead from the Bloemfontein town council in 2000. This was a year before the museum opened its doors.
Expunged registration
In a 2002 case in what was then the Pretoria High Court, Judge Brian Southwood expunged the registration of the trademark “Apartheid Museum” from the state register on the grounds that it was not in use.
“Any person can apply to the court for the expungement of a trademark, if the other person is not using that trademark,” said Stainbank in a WhatsApp voice recording. “Once that interest is established, for instance for the purpose of non-use, there’s an expression [that can come into play], and you can look this up in your dictionary: ‘scintilla’. There are judgments in which they say, ‘proof of use of a trademark amounts to nothing more than [the provision of] a scintilla of evidence that the trademark was used’.
“Now in this particular instance, the way Judge Southwood worked to expunge my trademark was by omitting the evidence [of use] that I gave him.”
The Apartheid Museum, south of Johannesburg, was established by the Krok brothers as part of a gambling licence bid for Gold Reef City Casino. (Francois Xavier Marit, AFP)
Stainbank asserts that Southwood was biased against him for the simple reason that “before he was elevated to the bench” he had acted as the Krok brothers’ legal counsel.
In 1988, when the Krok brothers’ Twin Products sought to overcome an attempt to register a company called Hollywood Curl (to protect the interests of their own skin-lightening brand trademarked “Hollywood”) it was advocate Brian Southwood who assisted attorney Owen Salmon. The Krok brothers won that case.
“The implied pitch (whiter is better) was psychologically disfiguring, while the product itself left many disfigured, with grotesquely scarred faces,” writes Stainbank in a letter to Noseweek. “It is hard to imagine a better symbol for apartheid South Africa’s white supremacist thesis.”
‘A cesspool of malfeasance’
With Southwood as judge, the South African Apartheid Museum at Freedom Park successfully applied for the expungement of Stainbank’s trademark in 2002. “If the Kroks knew the law the way they did, what gave them the balls to use my trademark without my permission?” asks Stainbank in another voice recording. “Ask yourself that question; then you will understand what I mean when I say the South African judiciary is a cesspool of malfeasance.”
Although he has failed to get the desired outcome from the courts, Stainbank has not been without his supporters. Through what can be described as a fragmented interview process, in which Stainbank sometimes supplied a heap of decontextualised information, he mentioned three key witnesses who, through the years, have backed his case up.
In an affidavit, Christopher Peter, who ran a graphic design company called Hot Tin Roof in the late 1990s, claims that Gold Reef City Casino happened on Stainbank’s concept document while Peter and Stainbank were pitching for some advertising work, specifically for Gold Reef City Casino in 1999.
In a supporting affidavit Lungi Biko (then Lungi Tyali), a marketing executive at Gold Reef City Casino at the time, writes: “I recall Mike Stainbank including his concept brochure of The Apartheid Museum as a part of his presentation and, in particular, I recall him presenting the brochure to Mr Solly Krok, who expressed a keen interest in the content.”
In a 2012 affidavit, Lesego wa Lesego, a consultant at Akani Egoli between 1999 and 2001, claims his signature was forged during the incorporation of the South African Apartheid Museum at Freedom Park. Significantly, in support of Stainbank, he states the Apartheid Museum was initially conceptualised as Freedom Park.
“Around about mid-1999 … Solly Krok arrived with an instruction that we scrap everything concerning Freedom Park because he suddenly wanted this to be The Apartheid Museum.”
Racial terms
Increasingly, throughout the 13-year-period, Stainbank has framed his battle in racial terms (“there is nothing more definitive of racism than the dispossession of black property”), and at times represented himself in the courts, with often adverse effects.
Most importantly, Stainbank stresses that the right to expunge his trademark was awarded to a company that was incorporated with his trademark while his trademark was of full force and effect on the trademark register at the time.
The curious thing, says Stainbank, is that there are now two companies with the same registration number: the SA Apartheid Museum and The South African Apartheid Museum at Freedom Park. “It’s like two men walking arond with the same ID number,” he says.
It’s all lies and media-baiting filibuster, says attorney
To Don MacRobert, a registered patent agent who has represented the South African Apartheid Museum in Freedom Park since the expungement case in 2002, businessperson Mike Stainbank can be best characterised as a liar.
“It’s important to note that, since 2002, not once has Stainbank been successful in the courts, so now he’s resorting to the press to dispatch his bits and pieces,” MacRobert told the Mail & Guardian this week.
“He has been rejected by the highest courts – and, indeed, as he has been declared a vexatious litigant, he needs the leave of the court to initiate any proceedings. He knows he will not succeed, so he turns to you – as he did to the Sunday Times – who never published the story.”
MacRobert believes Stainbank has been very carefully constructing an image of a man wounded by the justice system.
“He has only given you part of the story. The points mentioned by you have all been chucked out by the courts and constitute lies.”
Referring to affidavits by Lungi Biko, a former executive at Gold Reef City Casino, and Christopher Peter, former head of design company Hot-Tin-Roof, MacRobert said none of the affidavits have ever been led in court. Stainbank has, in part, relied on these documents and others to substantiate his claims that the Apartheid Museum constitutes stolen intellectual property.
Stainbank did not supply any of the documents as part of court papers but as freestanding pieces of information. He added that they had been admitted in court, in some cases as far back as 2002.
Specifically addressing Lesego wa Lesego’s affidavit, in which he claims his signature was forged during the incorporation of the South African Apartheid Museum at Freedom Park, MacRobert says a handwriting expert put paid to Wa Lesego’s allegations. He says he is in possession of a letter proving that Wa Lesego later voluntarily resigned as a director of Akani Egoli, Gold Reef City Casino’s holding company.