REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 012705/2026
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
17 FEBRUARY 2026
DATE
In the matter between:
GABRIELLE TESS GOLIATH
INGRID LEHLOHONOLO MASONDO
JAMES MALCOLM MACDONALD
CAMPAIGN FOR FREE EXPRESSION
and
MINISTER OF SPORT, ARTS AND CULTURE
DIRECTOR-GENERAL, DEPARTMENT OF SPORTS,
ARTS AND CULTURE
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
MINISTER OF INTERNATIONAL RELATIONS AND
COOPERATION
DIRECTOR-GENERAL , DEPARTMENT OF
INTERNATIONAL RELATIONS AND COOPERATION
First Applicant
Second Applicant
Third Applicant
Amicus Curiae
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
1
2
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deemed to be 17 February 2026.
JUDGMENT
KUBUSHI, J
Introduction
[1] The crisp question in this application is whether the application concerns a case
about the freedom of artistic expression and the rule of law, or whether it is about an
ordinary private agreement between two parties, one being a State department.
[2] The applicants contend that the first respondent, the Minister of Sport, Arts and
Culture (the Minister), censored their freedom of speech by interfering with and
obstructing the implementation of the decision taken by the Independent Curatorial
Selection Committee (the Selection Committee). The Selection Committee was
appointed by Art Periodic South Africa (Art Periodic), a non-profit organisation,
designated by the Minister as the administrative, production and fundraising platform
to manage and deliver the Pavilion's 2026 Venice Biennale art exhibition.
[3] The submission by the first and second respondents (the respondents) is that
this was just an ordinary private agreement between two parties, one of them being a
State department.
[4] The applicants approached this Court on an urgent basis, seeking an order to
review and set aside what they say is the respondents’ unlawful interference with, and
the obstruction of , the implementation of the decision taken by the Selection
Committee, and the purported cancellation of the said decision. They further seek
interdictory relief preventing the respondents from taking any steps to interfere with or
obstruct the implementation of the decision.
[5] The respondents are opposing the application. They have raised a number of
points in limine like locus standi, non-joinder of Art Periodic to these proceedings, and
points in limine like locus standi, non-joinder of Art Periodic to these proceedings, and
mootness. A further point in limine, pertaining to proper service, was raised by the
3
respondents in oral argument in Court. The respondents are, furthermore, challenging
the application on the merits, contending that the application should be dismissed as
there is no case made out for the relief the applicants seek. The respondents’
application for condonation for the lat e filing of the answering affidavit was granted ,
unopposed.
[6] The third and fourth respondents have filed a notice to abide by the decision of
the Court. There was also an application for the admission of an amicus curiae, which
was granted without any opposition.
The Factual Background
[7] The factual background is gleaned partly from the heads of argument of the
applicants and partly from the papers filed on record. The Government of the Republic
of South Africa, through the second respondent, the Department of Sport , Arts and
Culture (the Department), rents a Pavilion in the Venice Biennale Arsenale area Sale
D’Armi building (the Biennale) for the display of South African artistic work, the idea
being to market South African artists.
[8] In previous years, the Departme nt ran an exhibition selection process for the
South African Pavilion (the Pavilion) . It tendered for submissions via an open call
process and convened and oversaw an independent selection committee. On 5
November 2025, the Department announced that i t would adopt a new approach ,
outsourcing this process to industry stakeholders for implementation . The new
approach marked a significant evolution in the Pavilion's governance model, moving
from a purely government-led process to one of sector-driven collaboration.
[9] The Department appointed Art Periodic as the implementing partner for the
Arsenale for Venice Biennale Arte 2026. Art Periodic was assigned the right of use and
access to the South African Pavilion space in the Arsenale for Venice Biennale for
2026, with the full respons ibility for raising the execution budget, contracting
2026, with the full respons ibility for raising the execution budget, contracting
production, and delivering an exhibition to international standards, aligned with the
Department’s protocol and oversight.
[10] Pursuant to the appointment, Art Periodic undertook to convene a working
group of curators from five South African institutions to run a focused, time -bound
4
process to solicit short proposals from artists/curators (by invitation), assess feasibility
and impact, and select the exhibitor(s) for 2026. Proposals were to be assessed on
"conceptual strength, artistic vision, feasibility, and alignment with the Pavilion's
mission to strengthen South Africa's international cultural presence." The Department
would continue to fund the rental of South Africa’s official exhibition space. Interested
South Africans were encouraged to submit proposals in response to a nation al open
call, to be published on 7 November 2025.
[11] On 1 December 2025, Art Periodic announced the appointment of the Selection
Committee, comprising four respected members of the arts sector, including
academics, museum owners, and art reporters. On 7 November 2025, the Art Periodic
published an open call for proposals for the 2026 South African Pavilion. Curators were
invited to respond to the over arching curatorial vision for the 2026 Biennale with
"concepts that capture the vitality, nuance, and complexity of South African art today”,
offering multiple interpretations of what cultural ownership might mean in a global
context. On 24 November 2025, the applicants responded to the open call with a
proposal for an exhibition , comprising three filmed performances of Elegy . On 6
December 2025, Art Periodic announced that the applicants' proposal had been
unanimously selected by the Selection Committee. The Selection Committee issued a
statement in support of the appointment of the applicants to represent South Africa at
the Biennale.
[12] On 22 December 2025, the Minister wrote a letter to Art Periodic in which he
raised his concerns about the applicants' proposal. He noted that the proposal "centres
on the subject of Palestine , including in ... the Nakba, the Israeli occupation, and the
ongoing conflict, in Gaza and the West Bank”. The letter further stated that the subject
matter is "highly divisive", not aligned to the Department's mandate of social cohesion,
matter is "highly divisive", not aligned to the Department's mandate of social cohesion,
nation-building, and constructive dialogue , and is not rooted in South African
experience. The Minister called for the se aspects to be excised, as it appeared that
the proposed curatorial direction departed fundamentally from the Department ’s
expectation. He also stated that he has instructed the Department to consider
available options including the possible termination of South Africa's participation in
the Biennale. He requested an urgent response to that letter from Art Periodic. When
no response was received by 2 January 2026, and the concerns raised in the letter of
22 January 2026 remained unattended to, addressed another letter to Art Periodic in
5
which he informed Art Periodic that: "it would not be wise or defensible for South Africa
to support an art installation against a country currently accused of genocide while we
as South Africa are also fielding unjustified accusations of genocide ”. In the same
letter, the Minister terminated the partnership between Art Periodic and the
Department. He said that the Department would resume "direct management" of the
South African Pavilion and "use the platform for a positive message that will help to
repudiate the lies and misinformation that South Africa is a genocidal country".
[13] On 4 January 2026, the applicants addressed a letter to the Minister, in which
they explained the content of the work Elegy is all about. And, further stating that the
request to remove the aspects of the piece relating to the deaths of women and
children in Gaza violated the right to freedom of expression. They asked the Minister
to “respect the decision taken by the Selection Committee pursuant to a transparent
public process ”. On 20 January 2026, in response to a letter of demand by the
applicants, the Minister s tated that the Department intended to proceed with its own
arrangements for the South African Pavilion. He complained, among other things, that
Art Periodic had failed to seek or obtain the Department's approval, that South Africa
was engaged in international court proceedings “aimed at the cessation of hostilities
and the de-escalation of violence", and that the Department had a policy of prioritising
new artists when allocating opportunities for representation on global platforms. On 22
January 2026, the applicants launched this application.
Preliminary Issues
[14] I deal first with the preliminary issues raised by the respondents. The first being
the point in limine on the standing of the applicants before this Court , which might be
dispositive of the matter.
[15] The respondents argue that the applicants lack the requisite locus standi to sue
[15] The respondents argue that the applicants lack the requisite locus standi to sue
them in these proceedings. The contention is that the Minister never took any decision
to select the applicant s’ artwork for exhibition at the Biennale in the South African
Pavilion. The only relationship that the Department had was with Art Periodic and it
was a contractual relationship, which could be terminated in terms of the normal
principles of the law of contract. The applicants were never a party to the said
6
relationship or agreement. Accordingly , they have no right in law to compel
performance by the Department under the said agreement.
[16] The argument went further that the respondents never requested or mandated
Art Periodic, or anyone, to select artists or curators to exhibit at the Biennale's SA
Pavilion. The respondents only allowed Art Periodic to have access to the Pavilion to
showcase South African art following an application to the respondents from Art
Periodic. Accordingly, there was never any agreement with the applicants, nor did the
respondents take any decision in favour of, or against the applicants, which would
have entitled the applicants to bring these proceedings against them, so it was argued.
The respondents, as such, submit that , for this reason alone, this application falls to
be dismissed with costs.
[17] In response to this argument , the applicants argue that the respondents’
allegation that the applicants lack standing, because the Minister "never took any
decision to select the applicant's artwork for exhibition at the Biennale", is not the
correct test. The contention is that the Min ister's interference with, and purported
cancellation of, the binding decision by the Selection Committee threatens the
applicants' right to exhibit at the 2026 Biennale. As a result, the applicants' rights and
interests are directly and adversely affected by the conduct of the respondents.
Applying the broad and generous approach to standing which is required under the
Constitution, there can be no doubt that the applicants have a direct and substantial
legal interest which is affected by the conduct of the first and second respondents and
accordingly are entitled to approach this Court, so it was argued.
In addition, the applicants contend that they are afforded standing in these
proceedings in terms of section 38 of the Bill of Rights , which provides that “[a]nyone
listed in this section has the right to approach a competent court , alleging that a right
listed in this section has the right to approach a competent court , alleging that a right
in the Bill of Rights has been infringed…”. They argued that they are allowed standing
in their own interest as envisaged in section 38(a) of the Constitution. This, as the
argument went, is so because their rights to expression have been infringed. They, in
that regard, have locus standi because the conduct of the Minister directly implicates
their entitlement to display their artwork at the Biennale , which infringes their section
16 constitutional rights, so it was argued.
7
[18] In support of their argument, the applicants relied on Kruger v President of the
Republic of South Africa and Others ,1 where the majority of the Constitutional Court
held that, in order to facilitate the protection of the Constitution, the generous approach
to standing applies even when section 38 of the Constitution is not directly applicable.
They, in that regard, contended for the application of the broad and generous approach
to standing which is required in the Constitution. There can be no doubt that the
applicants have a direct and substantial legal interest which is affected by the conduct
of the respondents and are therefore entitled to approach the Court, so it was argued.
[19] The quintessential question in this regard is whether the applicants have
standing to bring this application against the respondents. Underlying this question is
whether the applicants’ section 16 constitutional rights and interests are directly and
adversely affected by the respondents’ conduct in terminating the relationship or
agreement with Art Periodic.
[20] The applicants rely on the decisions in Kruger,2 Ferreira v Levin NO and Others;
Vryenhoek and Others v Powell NO and Others 3 and Giant Concerts CC v Rinaldo
Investments (Pty) Ltd and Others4 to bolster their argument that a generous approach
should be applied by this Court to the question of standing in this case. In this regard,
they are correct. It is now settled that even where own -interest standing is at issue,
courts should adopt a “broad approach” in order to facilitate the protection of the
Constitution.5
[21] It is not in dispute that the applicants are acting in their own interest and that
this Court must apply a broad approach to the question of standing. The applicants
must, however, show that their section 16 constitutional rights and interests have been
directly and adversely affected by the conduct of the respondents.
[22] The conduct complained about is that the respondents are interfering with or
[22] The conduct complained about is that the respondents are interfering with or
obstructing the implementation of the decision of the Selection Committee, which gives
them access to exhibit their artwork at the Biennale. The conduct of the respondent in
1 2009 (1) SA 417 (CC).
2 Id.
3 1996 (1) SA 984 (CC).
4 [2012] ZACC 28.
5 Ferreira above n 3.
8
this regard is the termination of the agreement or the relationship that the respondents
had with Art Periodic.
[23] Did the said termination of the agreement adversely affect the rights and
interests of the applicants? I do not think so. I say so because the only decision that
the Minister withdrew is the contractual relationship in terms of which Art Periodic was
granted access to the Pavillion by the Minister. Such a decision, in my view, did not
interfere with the selection or cancel the selection of the applicants ’ artwork. This, it
could not do because there was no relationship between the Minister and/or the
Department and the applicants. Because there was no relationship, contractually or
otherwise, between the respondents and the applicants, the Minister would not have
the authority to interfere with the relationship between Art Periodic and the applicants,
which was a relationship or agreement separate from that of the respondents and Art
Periodic.
[24] The challenge for the applicants is that they approach this case on the basis
that administrative law is applicable, hence their contention that the decision of the
Selection Committee is an administrative action in terms of P romotion of
Administrative Justice Act 3 of 2000, which the Minister must review to have it set
aside if he is not happy with it. They place reliance in this regard on the Oudekraal
principle. which states that an unlawful or invalid administrative act remains valid and
binding until it is formally set aside by a court of law. They place reliance in this regard
on the Oudekraal principle. which states that an unlawful or invalid administrative act
remains valid and binding until it is formally set aside by a court of law.
This approach is not correct, as it was shown in Government of the Republic of South
Africa v Thabiso Chemicals (Pty) Ltd 6 where it has been held that a contractual
relationship between the parties is not affected by the principles of administrative law.
relationship between the parties is not affected by the principles of administrative law.
Once this principle has been established, it stands to reason that the applicants’ case,
which is formulated from that perspective, must fail.
6 2009 (1) SA 163 (SCA) at para 18.
9
[25] The applicants have referred this Court to the judgments in Allpay Consolidated
Investment Holdings (Pty) Ltd and Others v Chief Executive Officer , South African
Social Security Agency , and Others 7 and City Power (Pty) Ltd v Grinpal Energy
Management Services (Pty) Ltd and Others 8 as an indication that agreements of the
nature entered with Art Periodic are normally concluded by State departments and
organs of state with private companies. It seems they also wanted to infer that such
agreements, once concluded, confer some of the functions of the State department or
organ of state to the private compan ies and, as such , private compan ies perform
public functions akin to the State department o r an organ of state to which it is
contracted to.9 They also sought to show the bindingness of the decisions by entities,
like the Selection Committee, that exercise public power.
[26] The applicants’ argument however ignores what the court in City Power10 said
regarding the exercise of public power:
“A mere reliance on the fact that City Power is a private company does not take into
account the fact that these entities are usually established for the sole purpose of
performing public functions as required in terms of section 86E. In terms of section
86E(1) a municipality may establish a municipal entity only for the “purpose of utilising
the company as a mechanism to assist it in the performance of any of its functions or
powers” and where the functions of such a municipal entity would benefit the loc al
community. The public nature of the functions performed by City Power and the
restrictions imposed on such municipal entities by the Municipal Systems Act
distinguish them from other private entities.”
[27] Art Periodic was not established by the respondents as a State department for
the sole purpose of managing the Biennale Pavilion. It , thus, cannot fall within the
category of private companies like City Power , which have been established for the
category of private companies like City Power , which have been established for the
sole purpose of carrying out the mandate of the organ of state that established them.
For that reason, Art Periodic cannot be said to have been exercising a public power or
acting on behalf of the respondents. No such power formed a term of the agreement
between it and the respondents. Therefore, the applicants’ argument that the Selection
Commission, when exercising its power to select the applicants , was doing so on
7 2014 (1) SA 604 (CC).
8 2015 (6) BCLR 660 (CC).
9 Id.
10 Id at para 20.
10
behalf of the respondents, has to be rejected. It is evident that the Minister had entered
into an agreement with Art Periodic and assigned to it access to the Biennale Pavilion.
This agreement, in my view, was an ordinary private agreement between two parties.
[28] It follows that there is no evidence on the papers before this Court that the
conduct of the Minister , in terminating the agreement with Art Periodic , directly and
adversely affected the applicants’ rights of expression or any of their rights and
interests.
[29] The Constitutional Court in Giant Concerts11 held that:
[1] “The own -interest litigant must therefore demonstrate that his or her interests or
potential interests are directly affected by the unlawfulness sought to be impugned.”
[30] The applicants have failed to demonstrate that their rights or interests are
directly affected by the alleged unlawful conduct of the respondents, which they sought
to impugn. They, therefore, have no locus standi in these proceedings.
[2]
[31] The Constitutional Court in Giant Concerts12 held that:
[3] “When a party has no standing, it is not necessary to consider the merits, unless there
is at least a strong indication of fraud or other gross irregularity in the conduct of a
public body.”
[32] I would, therefore, say nothing more about the other preliminary issues and the
merits. In any event, the question of whether the application concerns a case about
the freedom of artistic expression and the rule of law, or whether it is about an ordinary
private agreement between two parties, one being a State department, provide s an
answer to all the preliminary issues as well as the merits. The issues are all
intertwined. Having found that this application is about an ordinary private agreement
between two parties, one being a State department, all the issues raised in the points
in limine as well as on the merits, are disposed of.
Costs
11 Above n 4 at para 43.
12 Above n 4 at para 58.
[33] The respondents, as the successful parties, are contending for costs, including
costs of two counsel on a punitive scale against the applicants. The contend further
that the principle accorded to costs in Biowatch Trust v Registrar, Genetic Resources,
and Others13 does not apply in this matter. The applicants' case is not based on a
genuine constitutional issue, so it is argued. I agree, a contractual dispute between
the respondents and Art Periodic cannot be said to be about constitutional issues. I,
however, do not think that the respondents are entitled to a punitive cost order. The
applicants had a right to approach court for relief which they thought they were entitled
to. There is no abuse of process that calls on this Court to penalise them.
[34] No costs are sought against the amicus curiae even though he tried to align
himself with the applicants' case.
Order
[35] 1. The application is dismissed.
2. The First, Second and Third Applicants are ordered to pay the costs of
this application, including costs of two counsel, one senior and one junior
on scale C.
APPEARANCES:
13 2009 (6) SA 232 (CC).
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
11
12
For the Applicants: A HASSIM SC
Adv N Ferreira
Adv N Siboza
Counsel for Campaign for Free Expression Adv B Winks
For the 1st and 2nd Respondents: ZZ Matebese SC
Adv A Shude
Date of the hearing: 11 February 2026
Date of judgment: 17 February 2026.