Who owns Miriam Makeba?

"In actual fact, Miriam Makeba runs her business from the grave. The ZM Makeba Trust and Siyandisa Music – of which she was a director – are what she wanted for her legacy and anyone who says otherwise is not being truthful," says Dumisani Motha during a two-hour-long interview with City Press.

It is the first time that Motha, Makeba’s nephew, has spoken to the press about the feud. He managed and toured with the country’s most legendary musician for 18 years and was, according to numerous accounts, her trusted adviser in matters of her property, her performances, her state ambassadorial functions and her business.

“I am speaking out for the first time because of the utterly unfounded allegations being made against the trustees – myself and especially Graeme Gilfillan – by her grandchildren Zenzi and Lumumba Lee,” he says.

Motha is responding, in part, to a front page article published in the Sunday Independent on May 20, ahead of a court case involving the parties. In it, the Lees accuse the trust of being “fictitious” and “illegal”, and of robbing Makeba’s legacy through “fraud”. Gilfillan, a tenacious and sometimes abrasive copyright expert known for taking on the state and major record companies in defence of artists’ rights, is singled out in the article, which claims he is the owner of Siyandisa Music and that it is “stealing” the Makeba family money.

Yet, according to all relevant records and company listings studied by City Press, Siyandisa is wholly owned by the ZM Makeba Trust. It was established as the trust’s commercial division. Makeba, Gallo Music and law firm Webber Wentzel set it up in 2006 to protect and exploit her considerable intellectual property. The trust, in turn, collects income to be paid to beneficiaries determined by Makeba herself.

Gilfillan and Motha insist they earn no income from being trustees and directors of Siyandisa.

The grandchildren claim victory

While Lumumba did not respond to City Press’ request for an interview, Zenzi was having none of Motha and Gilfillan’s explanations and affidavits when contacted for comment.

Aside from the allegations about Gilfillan owning Siyandisa – “I never said that, the media say what they want” – she repeats the claims that the trust is illegal and fraudulent, and is stealing from the Makeba family, claims she also made last year to City Press.

“The Pretoria High Court has ruled against Siyandisa’s application regarding the ownership rights,” Zenzi told City Press. “The judgment confirms that Siyandisa has no rights and Gilfillan and Motha have no right to be trustees.”

It’s a view repeated in the media across the world: “Miriam Makeba’s family wins rights to her music. The legendary South African singer’s intellectual property now belongs to her two grandchildren,” reads a BBC Africa report.

But a reading of the court documents and the ruling concludes no such thing, and it appears that fake news continues to swirl around the Makeba copyright.

The matter in the high court concerned an interdict application brought by Siyandisa Music against Sun International and the Makeba grandchildren. Court documents reveal that the hotel group, wanting to induct Makeba into their hall of fame, paid the Lees for the rights to use her image. The trust objected as rights must be cleared by them, and Sun International backed down, asking for their “donation” of R30 000 back from the grandchildren. After the Lees opposed the application, Siyandisa also asked that the costs of the case must be borne by the respondents.

“The court judgment dismissed Siyandisa’s application on a technical point, relating to when the rights were transferred from the ZM Makeba Trust to Siyandisa”, responded Gilfillan and Motha.

The grandchildren claimed victories apparently beyond the scope of the ruling.

“No pronouncement was made on Siyandisa’s right to trade or license Makeba’s rights – that is the plain language.”

In fact, the judgment left the trust open to refiling the application and that is exactly what the trust says it will do tomorrow. City Press has seen the documents that will be filed.

Zenzi did not wish to be drawn on the possibility of the case going back to court and remains adamant: “They are thieves because the beneficiaries of the trust never received a cent. The master of the court made us trustees. That is what our grandmother wanted. They are not supposed to be trustees.”

Zenzi made numerous claims about logistic and legal matters around the trust, all of which the trust systematically denied or disproved. She was sent their responses, but did not respond.

What did Mama Miriam want?

At the heart of the ongoing battle, which began when Makeba was still alive, remains the question of what the superstar wanted to happen to her legacy after she died.

According to Motha: “In 1961, Miriam Makeba registered her own music publishing company when she was living in the US. She may well have been the first black woman in the world to do that. It was the same in 2004, when she set up the ZM Makeba Trust, and then Siyandisa Music to protect her archive. She understood the power of royalties. She knew who she wanted as trustees – herself, myself and Mr Gilfillan, who she met during a taping of The Felicia Show about music royalties and came to expressedly trust to advise her on her intellectual property, which was in tatters and resided all over the world.

“She believed Siyandisa was the way to do business – it’s a model way ahead of its time, separating family and business – and she was clear she wanted Mr Gilfillan and I to be directors of Siyandisa, which she ran. She drew her salary from Siyandisa.”

It’s an account supported by numerous other impeccably placed sources City Press spoke to in the past three weeks.

Leanne Billett was legal adviser at then Johnnic, which owned Gallo Music, Makeba’s record company.

She told City Press: “When Makeba rejoined Gallo, her rights were all over the place, her intellectual property was scattered. We made it a corporate social commitment to build her legacy and we paid a lot for it. We helped her form the trust, and Siyandisa, and we gave the intellectual property to the trust. She knew exactly what she wanted. When the trust was formed, the grandchildren immediately objected. We sat with the master of the court. I was there. We met several times in Pretoria. The master dismissed their case.”

Her account is supported by Gilfillan, Motha and another well-placed source involved in the establishment of the trust, who did not wish to be named because concerns about sensationalism around the matter.

“It was clear to me that Gilfillan and Motha were acting on Makeba’s instructions. It was also clear that Makeba wanted to ensure that her musical legacy was held under the control of a single entity. She was concerned that it should be for the long-term benefit of her heirs, and she did not want her legacy to become the subject of her grandchildren’s direct control, for fear that it would be squandered or dissipated,” said the source.

A close friend of Makeba’s, photographer Rashid Lombard, says the singer gave the same account to him during one of her final tours in Sweden.

“She told me everything about the plans. In fact, she was so enthusiastic, she convinced me to do the same with my family trust – separate it from a business structure – which I ended up doing.”

But Zenzi emphatically denies any such claims, or the repeated claims that Makeba loved her grandchildren, who performed in her band, but didn’t want them running her business because they had not proven to be stable enough.

“That’s Dumisani’s fantasy,” she said. “My grandmother wanted [Motha and Gilfillan] gone.”

She told City Press she had emails to prove it, but did not provide them, despite several follow-up requests.

The state fans the flames

The court victory was celebrated by someone else: Arts and Culture Minister Nathi Mthethwa, who called it a “victory for artists”. It emerged in the high court that Mthethwa’s department had paid for the Lees to fight the trust.

When City Press asked why the state was funding a private matter that involved a corporate entity, Sun International, his spokesperson Zimasa Velaphi said: “We wish to advise that in terms of section 2(1)(a)(iv) of the Culture Promotion Act 35 of 1983 read with section 2(3)(b) of the same act, the minister has a discretion to provide assistance as has been done.”

Our investigation, however, found a long history of what seems to be state interference in the Makeba matter. Motha says former arts minister Lulu Xingwana investigated the claims of the grandchildren and took no action against the trust as she felt none was needed. Zenzi denies the matter was concluded.

In 2011, the trustees were astonished to learn that, after the master of the court had ruled against the grandchildren and told the department to stop getting involved in the matter, a judgment was handed down and the master declared that Zenzi and Lumumba were also to be made trustees. The trust tried to fight the matter, but lost.

“There was interference from the state, from the department of arts and culture,” says Motha.

The department did not respond to questions.

But there is a new problem. According to Motha and Gilfillan, Makeba was very careful to create a clause saying that the trustees – or their families – may not benefit financially from the trust. Zenzi, Lumumba and two great-grandchildren were named as beneficiaries, but now none could receive any money.

In email correspondence between the department’s legal director Given Mditshwa and Gilfillan around the use of Makeba’s image for Africa Month, Mditshwa is accused of making the same claims that the trust is illegal.

When he and Gilfillan get into a sparring match, Mditshwa, out of the blue, raises another case Gilfillan was advising on – in which the SA Roadies Association took the department to the Public Protector and won.

The department did not answer questions about whether its support of the grandchildren has grown into a personal vendetta against some of the trustees, nor why it is apparently acting against the express wishes of an artist, Miriam Makeba.

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