Over the last year or so there has been much speculation in the media as to who created South Africa’s national anthem, who owns the national anthem, and who receives royalties for exploitation of the national anthem.

The following article was commissioned from Michael S. Levy, retired SAMRO Musicologist of 35 years, to set out SAMRO’s understanding of the historical record and copyright status of our National Anthem.

Every country has its national symbols – a flag, a coat-of-arms, a motto. However, after the flag, the one which registers most in the minds of its citizens is the National Anthem. 
A national anthem is a generally patriotic musical composition that evokes and eulogizes the history, traditions and struggles of its people, recognized either by a nation’s government as the official national song, or by convention through use by the people. – Wikipedia, March 2010.

In April 1993, the Multiparty Negotiating Forum (MPNF) began work in Kempton Park outside Johannesburg with the aim of creating a democratic South Africa., and, in November of that year ratified the Interim Constitution of the Republic of South Africa which regulated government of the country through the 1994 elections until the adoption of the final Constitution in 1996.

Prof. Elize Botha was appointed by the MPNF as Chairman of its Commission on National Symbols which at first invited submissions from the public for the creation of a completely new and original National Anthem. A Sub-Committee was appointed to oversee this process. Although more than 200 new proposed anthems were received, none was considered suitable.

The Sub-Committee then suggested the combining of two pre-existing anthems, “Die Stem van Suid-Afrika” and “Nkosi sikelel’ iAfrika”, to constitute the new National Anthem. This proposal was accepted by the Negotiating Forum, and this combination of the two works was, at first, the official National Anthem from 1994. The combined National Anthem “is a national symbol that is designed to promote reconciliation and nation building. It encourages us, despite cultural differences, to embrace our common heritage” (Iliska Crossley, The Story of the South African National Anthem, “Classic feel”, September 2007.)

Thus, the South African National Anthem is a combination of two separate pieces of pre-existing vocal music:- “Nkosi sikelel’ iAfrika” (1897), music and lyrics by Enoch Sontonga (ca. 1873 – 1905), was officially adopted as the closing anthem for meetings of the African National Congress in 1925. “Die Stem van Suid-Afrika” (1921), music by Marthinus Lourens de Villiers (1885 – 1977), lyrics by Cornelius Jacobus Langenhoven (1873 – 1932), was adopted as the official National Anthem of South Africa in May 1957. However, it was immediately apparent that, in this form, the Anthem was extremely long. The Cabinet thus called into being a Committee to produce a shortened version in both choral and instrumental settings. Prof. Khumalo, who, for many years, was Vice Chairman of SAMRO, states: “Dr Ben Ngubane, [then] Minister of Arts, Culture, Science and Technology, invited the following academics in January 1995 to form a committee to work out a choral and instrumental shortened version”

The members of the Anthem Committee are acknowledged by SAMRO, the Southern African Music Rights Organisation, for the purpose of historical record, but, as will become apparent, no copyright or commercial revenue is generated by the work.

The persons invited by Dr Ngubane to constitute the Committee were:- Ms Anna Bender, Prof. Elize Botha, Mr Richard Cock, Mr Dolf Havemann (Secretary), Prof. Mzilikazi Khumalo (Chairman), Prof. Masizi Kunene, Prof. John Lenake, Prof. Fatima Meer, Prof. Khabi Mngoma, Dr Wally Serote, Prof. Johan de Villiers, Dr Jeanne Zaidel-Rudolph.

The Anthem Committee commenced work in February 1995, the first item of attention being the length of the anthem. Prof. Khumalo continues: ”A study of twenty-seven national anthems gave an average duration of 1 minute 47 seconds each. The longest anthem in this group – that of Switzerland – lasted for 2 minutes 40 seconds. Ours, on the other hand, was 5 minutes and 4 seconds!”

Apart from the length of the anthem, the Committee left out “those sections that had words considered unacceptable by some sections of our community”. For example, the “Council of Muslim Theologians made a submission against the retention of the [words], ‘Woza Moya’ ….

This refrain is a reference to the Christian concept of the Holy Trinity.”

Also, it was decided to omit “reference to the Great Trek (‘met die kreun van ossewa’), since this was the experience of only one section of our community”. It was also decided to have the last four lines of the text in English, “so that those members of our community who had a closer association with English rather than with Afrikaans or African languages should feel included rather than excluded in the national anthem of their country”.

In May 1995, the Anthem Committee made several proposals to the Cabinet, which chose one of them. This selected version was officially adopted as the National Anthem of South Africa by the President, Nelson Rolihlahla Mandela, by Proclamation No. 68 in the Government Gazette of 10 October 1997, as printed in a Schedule to the Proclamation in both Staff Notation and Tonic Sol-fa.

In this form, the National Anthem is an adaptation of the two constituent works, the main changes being to the lyrics. Dr (now Prof.) Zaidel-Rudolph, who became a member of the Board of SAMRO in 2008, produced the official orchestration of the proclaimed version for use either as accompaniment to the singing, or for purely instrumental performance.

Along with the public at large, SAMRO Members and Staff in particular will be interested in the copyright status of what might be called South Africa’s “First Song”. In terms of current copyright legislation, the Copyright Act No. 98 of 1978 as amended grants copyright to the creators of a work of music – mainly the Composer of the music and the Author of the lyrics in the case of vocal works – for the lifetime of the creators and a further period of 50 years after the death of such Rightsholders.

From this it is clear that there are some creative Rightsholders in the constituent works of the Anthem who are still in copyright. First among these is, of course, Marthinus Lourens de Villiers, who died in 1977. Secondly, those of the 11 members of the Anthem Committee who played a part in producing the final – official – version as we know it today by contributing original artistic material would have a claim in principle. In normal copyright circumstances, these Rightsholders would be entitled to a share proportionate to the additional creative material they put into the work as it exists in its official version.

However, it is immediately apparent that it is undesirable to have a situation in which patriotic South Africans would have to obtain a performing-right licence every time they wanted to show their love of their country by singing or playing their country’s National Anthem! It would be equally undesirable to have to obtain a Mechanical (Recording) Rights licence to authorize the making of sound recordings of the work, e.g. on CDs and on the sound-tracks of videos and films!

The various Governments of the day have overcome this difficulty by taking assignment of the rights which the creative Rightsholders would normally hold. In the case of the adoption of “Die Stem” as the National Anthem by the government of Prime Minister, J.G. Strijdom, this was done by means of the “Stem van Suid-Afrika” Copyright Act No. 2 of 1959, in which the heirs to the creators of both the music and the words of that song formally handed over their copyrights to the Government and its successors to own. Thus, as far as the original material of that section of our Anthem which is made up of ‘Die Stem van Suid-Afrika” is concerned, that is in effect in the Public Domain. As regards the original creator of “Nkosi sikelel’ iAfrika”, he is in any case out of copyright by reference to the provisions of the Copyright Act, as detailed above.

Then, as regard such contributions which were made by the members of the Anthem Committee, it should be noted that their creative work was done under contract to the Government. One of the provisions of the Copyright Act confers ownership of the copyright in works created by an employee in the course of his duties to the employer. Thus, the copyright in such work also belongs to the Government.

For these reasons, the answer to the question, “Who owns the South African National Anthem?”, is, strictly speaking, all of us South Africans, but free of any and all copyright and commercial restraints.

The National Anthem of South Africa is owned by the State, which has determined
that the work is in the Public Domain. Thus, in practice, no copyright revenue is accrued by the work, not even for
arrangements or adaptations of the music and/or lyrics. Anyone who wishes to use or adapt the National Anthem in any way whatsoever
should make application to the State Herald in advance at:

The State Herald, Private Bag X 236, Pretoria 0001.

Written by Michael S. Levy Consultant Musicologist.