The Art Law Review: Zimbabwe

Introduction

The Zimbabwe art market is a diverse field encompassing 'music, dance, drama, folk art, creative writing, literature, painting, photography, filming, sculpture, crafts, graphic or plastic arts', as well as 'the presentation, performance, execution and exhibition of any arts, art form or culture form'.2 While there are no reliable trade statistics3 that accurately capture the current size and value of the Zimbabwe art market, the art sector is important for the livelihood of many trained and self-taught creatives.4 Zimbabwe is internationally acclaimed for its art. It is globally celebrated for the early artists whose talent caught the attention of art lovers and collectors in the 1960s,5 as well as the continuing generations of artists whose eclectic skill has kept them in the gaze of the art world.6 Formal art education, art competitions,7 art residencies and exhibitions at international showcases such as the Venice Biennial8 have boosted the development and exposure of modern and contemporary artists.

The size and volume of the art market in Zimbabwe is small in comparison to wealthier nations on the African continent such as South Africa and Nigeria.9 Works of art are largely exhibited and marketed by public10 and commercial galleries11 as well as independent art studios. The majority of established artists in Zimbabwe sell their works abroad through domestic local and regional galleries with an international reach.

The year in review

As was the case with the rest of the world, the Zimbabwe art market was negatively impacted by the covid-19 pandemic. This resulted in a marked reduction in regional and global travel with the concomitant decrease in art sales to business travellers and tourists, as well as a severe reduction in domestic purchases as gallery openings and exhibitions were cancelled in compliance with covid-19 measures imposed periodically by the government with varying degrees of severity.12

To mitigate the impact of the restrictions on public gatherings, art galleries opted in some cases to arrange in-person viewings by appointment, to digitise and upload their art collections onto the internet,13 to host digital tours and exhibitions,14 to hold covid-19-themed art competitions15 and to host virtual meetings for local and international audiences on topical visual art matters.16

With the easing of national lockdowns and the advent of covid-19 vaccinations, artists and art galleries rallied to hold traditional open air art fairs.17 However, the trend of using digital platforms for online marketing and sales of artwork is now a permanent feature of art galleries and independent artists.

Art disputes

i Title in art

Title to art is established in different ways.

When buying a piece of art directly from the artist, the most common method of establishing title to the artist's work is a certificate of authenticity dated and signed by the artist, which confirms that the work to which the certificate relates is genuine and was made by him or her.

Where the artwork is purchased through a commercial art gallery, clear title is usually established by a certificate of authenticity issued to the buyer by the gallery. The certificate will specify the name of the artist, the title of the work and its medium. It may also state the dimensions of the work and the date it was made. It will also include the name and the position of the signatory of the certificate.

The third way in which clear title to art is established is through an original sales receipt issued to the buyer by the artist or the art gallery.

In circumstances where an artist is deceased, the authenticity of work attributed to him or her may be established from any person or organisation that is a recognised authority on the artist's work.

A buyer who purchases a work of art knowing that it has been stolen, or knowing that there is a real risk or possibility that it has been stolen, has tainted title, and the true owner may institute vindicatory action for the restitution of the artwork.

Similarly, in circumstances where the seller has no authority to sell a work of art, clear title will not be transferred to the buyer.

ii Limitation periods

The law of Zimbabwe provides for limitation periods within which civil or criminal claims can be instituted in the courts.18

The general prescription period for a civil debt, which includes anything that may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise, is three years.

Where the claimant was not immediately aware of the identity of the offending party or the injury suffered, the law permits him or her to institute legal action at the time that they become aware of the offending party or the cause of action, or both.

The right of prosecution for any criminal offence in relation to works of art (other than murder), whether at the public instance or at the instance of a private party, is 20 years from the time the offence was committed.

iii Alternative dispute resolution

Arbitration is not available to disputes concerning transactions that are classified as consumer contracts under the Consumer Protection Act19 unless the buyer has agreed to submit the dispute to arbitration by separate agreement.20

Similarly, disputes concerning art matters that affect the interests of a minor or an individual under a legal disability may not be resolved by arbitration unless the High Court of Zimbabwe gives leave for it to be determined by this method.21

Where the place of arbitration is Zimbabwe, the law applicable to the arbitration are the provisions of the Arbitration Act and the Model Law on International Commercial Arbitration, as modified by the Arbitration Act.

Zimbabwe has several commercial arbitral bodies but these are not dedicated to art disputes.22 However, unless otherwise agreed by the parties to a dispute, an arbitral tribunal may appoint one or more experts to report to it on specific issues to be determined by the tribunal.

Fakes, forgeries and authentication

The purchase of fakes, forgeries and inauthentic art may be remedied by civil or criminal action.

The civil remedies for the purchase of fake art and forgeries in circumstances where the victim can show that the party at fault (be it the principal or his or her agent) made a fraudulent representation to the victim, which the party knew to be false, which the party intended the victim to act upon, and which was acted upon by the victim, the art transaction is voidable and the victim may cancel the contract, tender restitution and claim damages either on contract or in delict.

On conviction of the crime of fraud, the criminal court may impose a penalty of a fine not exceeding Level 14 (Z$500,000) or not exceeding two times the value of any property obtained by him or her as a result of the crime, whichever is the greater, or imprisonment for a period not exceeding 35 years, or both.23

The penalty on conviction for the crime of forgery is a fine not exceeding Level 13 (Z$300,000) or imprisonment for a period not exceeding 15 years, or both.24

In 2021, Zimbabwe has had no reported civil litigation or criminal prosecution cases concerning fakes, forgeries or inauthentic art.

Art transactions

i Private sales and auctions

Art sales in Zimbabwe are generally conducted as private transactions by art galleries or directly by the artists themselves.

Public auctions of artworks are uncommon, although in 2020 a well-known general auction house conducted a Facebook timed auction of artwork on behalf of the estate of a prominent deceased artist.

Section 3 of the Consumer Protection Act applies to every transaction occurring within Zimbabwe, unless specifically exempted, and for the promotion of any goods or services, or of the supply of any goods or services, within Zimbabwe. Goods are defined to include any tangible object not marketed for human consumption, including any medium on which anything is or may be written or encoded, and any literature, music, photograph, motion picture, game, information, data, software, code or other intangible products written or encoded on any medium, or a licence to use any such intangible product.

The Act further exempts transactions in terms of which goods or services are promoted or supplied to the state or where the consumer is a juristic person whose asset value or annual turnover, at the time of the transaction, equals or exceeds the prescribed threshold value.25

'Juristic person' includes body corporates or partnerships or associations or trusts registered in terms of the Deeds Registries Act.26

Part III of the Consumer Protection Act sets out the fundamental consumer rights. These include an implied warranty of quality in any transaction or agreement pertaining to the supply of goods or services to a consumer (Section 11), the consumer's right of cancellation (Section 20) and the supplier's responsibility for delivery of goods or supply of services (Section 21).

Section 21 of the Consumer Protection Act permits parties to vary the statutory terms concerning, among other things, responsibility for delivering the goods or performing the services, the date and time for delivery and performance, the responsibility for meeting the costs of delivery, and the transfer of risk in the goods between conclusion of the agreement and the consumer's acceptance of the delivery.

While the Consumer Protection Act also deals with the provision of goods and services for sale, hire or exchange by way of electronic transactions, a draft Electronic Transactions And Electronic Commerce Bill 2013, which is intended to give legal certainty and enforceability of electronic transactions and electronic commerce, is yet to be published.

The Consumer Protection Commission has power to conduct conciliation and arbitration between parties to a consumer agreement.

The common law of Zimbabwe refers to the principles of Roman-Dutch law as applied at the Cape of Good Hope on 10 June 1891 as modified by judicial pronouncements made periodically by the courts through case law.27

In transactions concerning the international supply of goods and services, the Zimbabwean rules of conflict of laws apply in any disputes arising from international contracts.

ii Art loans

The National Gallery of Zimbabwe is a corporate body established in terms of the National Gallery of Zimbabwe Act.28

Its functions include the promotion of the interests of art generally, and the preservation of works of art that are acquired by or lent to it, or otherwise in its custody. Works of art are defined to include paintings, drawings and sculptures and other objects pertaining to visual culture.

The constituent Act grants the board of the National Gallery power to borrow works of art for as long as, and on the terms that, the board deems fit. The board is further empowered to lend works of art on terms and conditions that it sees fit.29

An example of such a loan in recent years was the return to the permanent collection of the National Gallery of three paintings that it had loaned to the Tudorian Eltham Palace in Greenwich, London for more than a year.30

iii Cross-border transactions

As at 1 July 2021, Zimbabwe was a state party to the following conventions and agreements adopted under the auspices of UNESCO:

  1. the Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for its Execution, The Hague, 14 May 1954;
  2. the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Paris, 14 November 1970;
  3. the Convention for the Protection of the World Cultural and Natural Heritage, Paris, 16 November 1972;
  4. the Convention for the Safeguarding of the Intangible Cultural Heritage, Paris, 17 October 2003; and
  5. the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Paris, 20 October 2005.31

International conventions, treaties and agreements are required by the Constitution of Zimbabwe to be domesticated to enable them to have force and effect in Zimbabwe.32 Until then, the enforceability of the provisions of international instruments to which Zimbabwe is a party are doubtful.

In the case of Minister of Foreign Affairs v. Jenrich & Ors,33 the High Court of Zimbabwe held that:

[c]ustomary international law is part of the law of Zimbabwe unless it is inconsistent with the Constitution or a law of Zimbabwe. . . . an international treaty which has been concluded or executed by the President does not bind Zimbabwe until it has been approved by Parliament and does not form part of the law of Zimbabwe until it has been incorporated into the law by an Act of Parliament.

With respect to cultural property of Zimbabwe, the National Museums and Monuments Act34 has established a board of trustees35 whose functions include the preservation of monuments, relics and other objects of historical or scientific value or interest, and the compilation and registration of all national monuments and any relics that it has acquired or that have been brought to its notice.

A monument36 means any:

(a) ancient monument; or
(b) area of land which—
(i) is of historical, archaeological, palaeontological or other scientific value or interest; or
(ii) has a distinctive geological formation; or
(c) waterfall, cave, grotto, avenue of trees, old tree or old building or remaining portion of an old building; or
(d) other object, whether natural or constructed by man, of historical, archaeological or other scientific value or interest.

A relic37 is defined in the National Museums and Monuments Act as any:

(a) fossil of any kind; or
(b) drawing or painting on stone or petroglyph known or commonly believed to have been executed in Zimbabwe prior to the 1st January, 1890; or
(c) weapon, implement, utensil or ornament of historical, archaeological or other scientific value or interest known or commonly believed to have been used in Zimbabwe prior to the 1st January, 1890; or
(d) anthropological or archaeological contents of any ancient monument or ancient working; or
(e) other object, whether natural or made or executed by man, of historical, archaeological or other scientific value or interest which is prescribed as being a relic for the purposes of this Act.

The trustees of the National Museums and Monuments have power to make by-laws for, among other things:

(b) safeguarding—
(i) national monuments, ancient monuments or museums, models or displays owned or controlled by the Board; or
(ii) relics, specimens or the contents of the museums, models or displays referred to in subparagraph (i); or
(iii) tablets or notices erected or displayed by the Board;
(c) regulating the possession of any relic;
(d) regulating the excavation of national monuments or ancient monuments and the removal of relics from national monuments, ancient monuments or ancient workings.

The by-laws also regulate the use and export of cultural property from Zimbabwe.38

iv Art finance

The majority of art purchased in Zimbabwe is bought by individuals and corporates for cash payable within a reasonable period of the perfection of the sale agreement.

While there is no legal impediment for financial institutions to finance the purchasing of art, the lending industry has not developed these facilities.

Zimbabwe has domestic legislation dealing with anti-money laundering and customer due diligence.39

Art galleries and public auctioneers are not designated as non-financial businesses or professionals that are required to be registered under the Money Laundering And Proceeds of Crime Act.

However, in light of the customer due diligence on the part of bankers of art galleries and auction houses, the latter are indirectly compelled to conduct customer due diligence on seller and buyers of art to deal with any queries raised by their bankers in efforts to guard against the risks of money laundering, especially where transactions are being executed with a customer who is not physically present for purposes of identification, high-risk customers, politically exposed persons and persons from high-risk countries.

Artist rights

i Moral rights

Moral rights of authors of artistic works are governed by the Copyright and Neighbouring Rights Act (the Copyright Act).40

The author of an artistic work has the right to be identified as the author41 of the work for as long as copyright subsists in it, whenever the work is published commercially or exhibited in public, or a visual image of it is broadcast or included in a cable programme service.

The author of an artistic work has the right to be identified as the author when an audiovisual work including a visual image of the artistic work is shown in public or copies of the audiovisual work are issued to the public. The same applies in the case of a sculpture or a work of artistic craftsmanship when copies of a graphic work representing it, or copies of a photograph of it, are issued to the public.

The term of copyright in an artistic work is the life of the author and 50 years from the end of the year in which the author dies.

The author of an artistic work has a right not to be identified as the author of a work on any copies of a work that are issued to the public

The author of an artistic work has the right, for as long as copyright subsists in the work, of integrity to a work and may object to having a derogatory treatment of his or her work published commercially, performed or shown in public, broadcast or included in a cable programme service.

Moral rights are not transmissible during the lifetime of the person in whom they vest but may be transmitted by testamentary disposition or by operation of law on that person's death.

Moral rights may be enforced under the Copyright Act,42 and the remedies for an infringement include those by way of damages, interdict, attachment, the rendering of account or the delivery of infringing copies or articles used or intended to be used for making infringing copies or otherwise, as are available in respect of the infringement of any other proprietary right.

ii Resale rights

The Copyright Act does not provide for resale rights.

However, as African art becomes more popular and valuable, this is a matter that could be discussed to benefit artists and their families. More so in light of the development of a secondary art market for works produced by artists with an international reputation.

iii Economic rights

The Copyright Act grants artists economic rights in their work.

This permits him or her to benefit financially from their work by vesting in the owner the exclusive right to perform, or to authorise, any of the acts that are restricted by copyright in artistic works.

The Copyright Act provides for the establishment of a corporate body known as the Copyright and Neighbouring Rights Collecting Society of Zimbabwe,43 whose functions include the collection of royalties from the users of artists' work on behalf of member artists, the management of member artists' rights in terms of the Copyright Act, the representation of member artists in the negotiation and administration of licence schemes, and the negotiation of licences as agent for member artists.

The Collecting Society has, however, not yet been operationalised so commercial art galleries and individual artists presently represent themselves in negotiating the commercial aspects of their work.

Trusts, foundations and estates

In the development of the law of trusts in Zimbabwe, the courts have held that trusts established or constituted in Zimbabwe do not have a legal personality.44 It is a legal arrangement whereby assets and liabilities are vested in a trustee or in trustees. The courts have held that trusts are not corporate entities and are not capable of owning corporeal or incorporeal property, neither can they have property registered in their name.

The notarial registration of trusts is voluntary except where assets are vested in the name of the trustees under the Deeds Registries Act45 and any other statute governing the registration of any property.

Foundations are not a familiar legal concept in Zimbabwe as the country does not have a civil law system but a general law system based on Roman-Dutch legal principles as developed by case law.

The Copyright Act permits an artist to bequeath the economic rights and the moral rights in artistic work to one or more of his or her beneficiaries in whole or in part.

Where an artist dies intestate, ownership of his or her artwork, as well as the moral rights in the work, will devolve upon the beneficiaries according to the laws of intestate succession.

Zimbabwe has a plural legal system that is comprised of statute law, Roman-Dutch principles of common law as developed by case law and African customary law as developed by case law. Polygamous marriages are recognised under Zimbabwean law46 for purposes of, among other things, the transmission or inheritance of ownership of the copyright and moral rights in a deceased artist's works of art, under the laws governing testate and intestate succession under customary law.

Outlook and conclusions

The art market in Zimbabwe has for a number of years been affected by the decline in the economy, which has depressed the value of artworks purchased within the domestic market.

Local artists continue to use digital channels including Twitter, Instagram and Facebook to market their work internationally. A number of these are represented by commercial art galleries in Zimbabwe and South Africa.

As artists have become more exposed to professional training, international collaborations, retreats and residencies, the diversity of the sector has grown with a large number of artists being exhibited at international art fairs and winning international awards.

While local conversation about cultural restitution and repatriation has been rather muted, cultural experts have begun to join the discussion on the continent.47

Footnotes

1 Sara Nyaradzo Moyo is a senior partner at Honey & Blanckenberg.

2 Definition of 'the arts' in the National Arts Council Act [Chapter 25:07].

3 Zimbabwe National Statistics Agency, Culture Fund of Zimbabwe Trust, 2013; Cultural Statistics Survey Zimbabwe, 2012; Cultural Statistics Survey Report 2012, www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/Cultural_Statistics_Survey_2012_Report_3April_final.pdf.

4 UNESCO, 'Zimbabwe Culture for Development Indicators (CDIS) May 2017–April 2018', www.natartszim.org.zw/wp-content/uploads/2019/02/Zimbabwe-CDIS-Analytical-Brief-Report-Final-12_4_18.pdf.

5 Diamond Years: 60 Years Of Art In The Media (Zimbabwe Newspapers Limited and National Gallery of Zimbabwe, 1980), pp. 28–31, 35–36.

6 Doreen Sibanda, Zimbabwe Stone Sculpture: A Retrospective, 1957–2004 (Embassy of France and Weaver Press, 2004).

8 Andrew Moyo, 'A look at the Zim Pavilion in Venice', The Sunday Mail, 14 July 2019, www.sundaymail.co.zw/a-look-at-the-zim-pavilion-in-venice.

9 Maryanne Maina, 'Who Are the Leading African Art Buyers?', The African Exponent, 20 August 2015, www.africanexponent.com/post/who-are-the-leading-african-art-buyers-142.

10 The National Gallery of Zimbabwe is headquartered in Harare and has branches in Bulawayo and Mutare.

11 Zimbabwe has a number of commercial galleries, including Gallery Delta, First Floor Gallery, Shona Sculpture Gallery and Mutupo Gallery.

12 Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) (Consolidation and Amendment) Order 2020 (Statutory Instrument 200 of 2020) and as modified from time to time.

13 'The Annual Summer Exhibition 2020 – Signs Of The Times', Gallery Delta, https://gallerydelta.com/exhibition/the-summer-exhibition-signs-of-the-times/.

14 First Floor Gallery Harare, www.firstfloorgalleryharare.com.

15 'Gallery displays Covid-themed works', The Herald, 23 August 2021, www.herald.co.zw/gallery-displays-covid-themed-works/.

16 National Gallery of Zimbabwe in Bulawayo presents 'Bulawayo Conversations: The value of residences in artists' development' and 'Breaking artistic barriers'.

17 Colette Musanyera, 'Visual artists converge in Harare for Jacaranda Art Fair', ZBC News, www.zbcnews.co.zw/visual-artists-converge-in-harare-for-jacaranda-art-fair/.

18 Section 15(d) of the Prescription Act of Zimbabwe [Chapter 8:11]; Section 23 of the Criminal Procedure and Evidence Act [Chapter 9:07].

19 Chapter 14:37.

20 Section 4(f) of the Arbitration Act [Chapter 7:15].

21 id. at Section 4(e).

22 The Commercial Arbitration Centre in Harare and the Africa Institute for Arbitration and Mediation.

23 Section 136(b)(ii) of the Criminal Law (Codification and Reform) [Chapter 9:23].

24 id. at Section 137(b)(ii).

25 The threshold value is yet to be prescribed.

26 Chapter 20:05.

27 Section 192 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 (Act 1 of 2013).

28 Chapter 25:09.

29 Section 4 of Schedule to the National Gallery of Zimbabwe Act.

30 'National gallery welcomes back Zimbabwe paintings from London', 30 April 2018, New Zimbabwe, www.newzimbabwe.com/national-gallery-welcomes-back-zimbabwe-paintings-from-london/.

32 Section 327 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013.

33 [2015] ZWHHC 232.

34 Chapter 25:11.

35 id. at Section 3.

36 Section 2 of the National Museums and Monuments Act.

37 ibid.

38 National Museums and Monuments Act, National Museums and Monuments By-laws, 2011, Statutory Instrument 143 of 2011.

39 Money Laundering And Proceeds Of Crime Act [Chapter 9:24].

40 Chapter 26:05.

41 Section 61(3) of the Copyright Act.

42 Section 67 as read with Section 52 of the Copyright Act.

43 Part XI of the Copyright Act.

44 Crundall Bros (Pvt) Limited and Anor v. Lazarus, No. 1990 (1) RLR 290 (H); Trustees of the Mukono Family Trust (2) Mukonotronics (Private) Limited v. Karpeg Investments (Private) Limited T/A Kadir & Sons, SC 145/2021.

45 Chapter 20:05.

46 Customary Marriages Act [Chapter 5:07].

47 Ivan Zhakata, 'Repatriations top ICAC agenda', The Herald, www.herald.co.zw/repatriations-top-icac-agenda/.

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