EXTINCTION: Artist Andries Botha with The Three Elephants sculpture, which the eThekwini municipality is trying to destroy. Picture: PETER MACHEN

THE creative process has always been vulnerable to censorship and political interference . Nowadays it is the intolerant Chinese government that interferes in art and treats one of its most well-known artists, Ai WeiWei, as a political dissident.

Freedom of artistic creativity was introduced in SA by the new constitution. According to the government's white paper on arts, culture and heritage, the arts in the new SA "are premised on freedom of expression and critical thought". But it seems old habits die hard. Political censorship and interference in SA is again violating artistic expression, and the disputes involving The Three Elephants sculpture and the King Shaka statue have unexpectedly become a modern- day cause célèbre for the rights of artists and the public's right to enjoy (and judge) art.

The Three Elephants is a life- size public sculpture by the internationally respected artist Andries Botha at the Warwick Triangle Viaduct in Durban. eThekwini municipality has decided the sculpture - which the municipality selected and commissioned - will be taken down and replaced.

Although the municipality initiated the contract which involved Botha building three elephants emerging from a sea of stones, it ordered him to stop working on the final stage of the sculpture. No reasons were cited. It is suspected the true reason is a neurotic fear in the minds of (some in) the African National Congress that The Three Elephants too closely resembles the symbol of a political rival - the Inkatha Freedom Party.

This is ironic because the municipality chose the elephants as an apolitical metaphor for tolerance, coexistence and due consideration for a vulnerable ecosystem. Nevertheless, by its resolution dated June 3 last year the municipality was insisting on the destruction of two of the elephants and the incorporation of the remaining one into a new "Big Five" urban design concept.

The Three Elephants (and the King Shaka statue) has been sympathetically reported on in the local and international media. What seems like an unimportant, petty, local party- political dispute has turned into a national legal dispute about censorship and political interference - and in particular the legal status of art and creative expression under South African law.

Art has to be treated differently from other "objects" because its status is derived from (among other things) the operation of intellectual property and other rights and laws - as seen through the lens of SA's liberal constitution. In particular, the artist's "moral right" is closely derived from Article 6 of the Berne Convention, 1886 which has been incorporated into section 20 of the Copyright Act in SA . The moral right is infringed when without his approval the artist's right of paternity in the work is not acknowledged or (as in this case) an unjustifiable distortion, mutilation or other modification of the work takes place or is threatened.

The main point is that the municipality's decision to remove two of the elephant figures is a decision to destroy, mutilate or change a work of art in a manner that undermines the integrity of the artwork.

In addition to the "moral right" debate, both sides will also be inviting the court to consider detailed arguments about the freedom of artistic expression and the general constitutional principles relevant when public money is used to commission public artworks.

The resolution is a decision to modify and/or mutilate the artwork and, given that the municipality has offered no other justifiable reasons for its conduct, the resolution also amounts to political censorship and interference which, without justification, violates the freedom of artistic expression guaranteed by section 16(1)(c) of the constitution.

This right implies the right both to create and to show the artistic creation. Therefore the artist has the right to make and the public has the right to see (and hear) artistic creations. It is Botha's contention that the municipality's decision is a violation of the public's right to freedom of artistic expression, namely its right to see the completed work of art.

There are good reasons to be concerned when artistic expression is compromised. Censoring art also undermines other hard-won human rights achievements.

The process whereby public art is commissioned must also be constitutional. In this case, t he municipality's decision , taken during the commissioning process, constitutes direct state interference with the overall vision of the artist and with the creative process.

The Constitutional Court has repeatedly affirmed that a cornerstone of constitutional democracy is tolerance of diversity and respect for the views of others. The municipality is a public body involved in making use of public funds. This means commissioning public art must take this into account. It is thus vital the commissioning process for public art commissioned by public bodies using public money be "hands off" and "arms length". This is violated if the commissioning process adopted by public bodies can be distorted or abused to reflect the cultures, values, beliefs and opinions of those officials who happen to be in power at the time.

The municipality has refused to give an undertaking to safeguard the integrity of the sculpture, which means the elephants may be removed (and modified) at any time. Botha's application is brought against the municipality and other parties, including Arts and Culture Minister Paul Mashatile. The court is asked to confirm Botha's rights, to review the municipality's decision and to interdict the municipality (and others) from modifying, altering or destroying the work. Botha is also bringing separate claims in contract for breach of contract, stand-off penalty charges and damages, together with damages (in delict) for contractual interference.

The Dube Tradeport commissioned the King Shaka statue at Durban's airport. At the request of King Zwelethini, and based on his objections, the statue has been summarily removed by the KwaZulu-Natal legislature. While a replacement is being sought, the cow, bull and calves are all that remain of Botha's original Shaka Memorial Sculpture.

History has shown that, for very good reason, politicians who happen to be in power should not be deciding what artists are allowed to create and what art the public is allowed to see and hear. Rights and procedures protect the artistic process. All of this means The Three Elephants debacle is an opportunity to determine the "moral right" of the artist in SA and the freedoms enshrined in the Constitution. It is unfortunate that an artist needs to have recourse to the courts in the new SA but this decision has been taken only after careful deliberation and - given that it is not an isolated case - in order that the creative process and the public's interest in art may be shielded from damaging, self-serving censorship and interference.

. Toby Orford Art Law is a legal consultancy specialising in art and cultural property.