Battle for the BRAND

2013-04-29 00:00

THE battle for the Nelson Mandela brand is about to explode.

The acrimonious lawsuit, brought by two of ailing former president Nelson Mandela’s surviving children with the support of the third child and most of his grandchildren earlier this month, is only the first salvo.

At the heart of the unfolding drama will be the question of who holds the rights to the one of the most valuable personal brands in the world.

The Witness has established that key to the fight is a company formed in 2000, to which Nelson Mandela signed over the commercial rights to his name and brand and which is about to claim that those rights are valid and legal.

Ismail Ayob, the attorney who represents the Mandela children and grandchildren in the lawsuit, told The Witness this week that the suit was an attempt by the Mandela family to “reclaim what rightfully belongs to them”.

But he also revealed a plan to have lifted a court order from 2005 that prevents the two companies at the heart of the current lawsuit from trading on the Mandela name.

The order banned the two companies — Magnifique and Harmonieux Investments and Holdings — from marketing or selling any artwork or art reproductions or other merchandise using Nelson Mandela’s name or reputation locally or internationally, or claiming that Mandela had authorised such sales.

Speculation is that the companies have made some R40 million off the sale of handprints and other artwork.

Ayob said it was last year when he was about to launch a high court application to set aside the 2005 order that he discovered that George Bizos, attorney Bally Chuene, Human Settlements Minister Tokyo Sexwale and Eastern Cape judge Temba Sangoni had been appointed as directors to the two companies in 2006.

The Mandela children and grandchildren now claim in their lawsuit that the appointments were unlawful and are applying for an order that they be removed.

This would leave the two sisters Makaziwe Mandela and Zenani Dlamini as the sole directors of the two companies.

But key to profits from the Mandela name is a third company, Tinancier, which Ayob says retains all commercial rights to the Mandela name.

Tinancier was at the heart of the 2005 court battle in which Mandela fought to regain control of his copyright and commercial use of his name.

The battle saw Ayob effectively fired by Mandela as his family lawyer, with Mandela claiming the Ayob duped him into signing the contract.

The contract saw Mandela sign over rights to his copyright and brand to Tinancier, set up by Ayob in 2000, although he has now resigned as a director.

The 2005 court order was issued pending the resolution of the legality of that contract — an issue which Ayob now claims was never settled and which made the court order redundant.

“They [Bizos, Chuene and others] hijacked [Harmonieux and Magnifique] and ignored Tinancier because it was just a shelf company, but they didn’t know that it actually was the one that held the rights [to the Mandela name],” Ayob charged.

Tinancier’s return to the fray is signalled in the current court documents. The two litigants in the current case, Makaziwe Mandela and Zenani Dlamini, are also directors of Tinancier.

The current court case includes a mandate from Tinancier, which remains registered and in business, for Ayob to also represent it.

Ayob said he had appointed Mandela family members to all the companies in which he had been a director prior to being fired as Mandela’s attorney in 2005.

“I took a view that the money belongs to the family and I appointed family members to all the companies that I was a director in.

“This was when I became concerned at the time when he [Mandela] wanted to make Bizos and them directors. At that time I saw people were trying to take chances,” said Ayob.

Recently, Mandela family members have been quietly creating commercial vehicles that trade directly on the Mandela name, which has over the last decade been vigorously protected by the Nelson Mandela Foundation (see sidebar).

A source, who asked not to be named due to sensitivity around the subject, said the Mandela children and grandchildren were concerned that because Mandela had married Graça Machel “in community of property” that they could lose out on what they viewed as their justified claim to the Mandela name upon his death.

Nelson Mandela Foundation spokesperson Sello Hatang said the foundation was not aware of the existence of Tinancier, adding: “In 2003 the NMF registered various trademarks in relation to the Nelson Mandela Foundation and its founder in order to protect the institution and the founder’s intellectual property from unauthorised use.

“The intention was not, and could not be to prevent any member of the Mandela family from using his/her name for their own initiatives.”

Bizos’ attorney, Michael Hart, of Norton Rose, would not comment on Ayob’s claims, and said all the allegations made by the Mandela family would be dealt with in their responding affidavits, which were due to be filed in mid-May.

Attempts to get comment from Makaziwe Mandela and Zenani Dlamini and a number of other Mandela family members were unsuccessful.


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