President Jacob Zuma tried to stop "The Spear" court case before proceedings started a week ago, but the ANC insisted on going ahead.
Apparently Zuma was concerned about the strength of his case and the potential negative consequences for South Africa.
On Thursday morning last week, as a crowd gathered in the street outside and the court prepared to hear an urgent application that would force City Press to remove a picture of “The Spear” by artist Brett Murray from its website and bar the Goodman Gallery from displaying it, Zuma sent a senior advocate to try to stop the case.
Lawyers representing the parties had gathered for a discussion in the presiding judges’ chambers. But they were interrupted by advocate Nazeer Cassim, who had not previously been involved in the case but had done work for the ANC before. Cassim told them that the president had briefed him and wanted the case to be postponed.
The counsel for the ANC and presidency, Gcina Malindi and Muzi Sikhakhane, were clearly taken aback by this, one of the lawyers present told the Mail & Guardian. Lawyers for City Press and the Goodman Gallery also rejected any postponement. They appeared confident that they had a strong case and that the application brought by the ANC and Zuma was deeply deficient on the law.
Cassim was not available for comment.
Two people familiar with the details said the president was concerned about the anger and emotion surrounding the case and intent on halting it before events spun out of control. They claimed the ANC had pushed Zuma to go ahead.
But the ANC’s version of the matter is completely different. ANC spokesperson Jackson Mthembu, who at one point was on the phone to Zuma from the judges’ chambers, said: “The ANC and the president were in agreement that the government should also be part of the matter – he is, after all, also the state president, by the way.”
But the manner in which Cassim approached the case on government’s behalf left the ANC, and Zuma, fuming, Mthembu claimed. “It was very clumsy,” he said. “They had no documents; they went straight to the judges and said they wanted to intervene so the matter needs to be postponed, and said all kinds of things.
“I can tell you the president didn’t want the matter going away from court; he didn’t want it removed. That’s the truth and the whole truth.
“How they [the government lawyers] did what they should have known to do was a disgrace. The president was equally angry … How do we go to court on an urgent matter and ask for it to be postponed? We would look like clowns. I think in front of those judges the ANC didn’t come out smelling of roses. If I were one of those judges I would have said: ‘Are you guys serious?’”
One legal expert, who reviewed the papers, said: “They could have put up a case around the core dignity right, but they didn’t do so. The judges demolished their case point by point.”
But no decision was reached. The judges would not sit after 4pm and no agreement could be reached about using the remaining time – and Malindi’s emotional breakdown further complicated the process.
But, less than a week later, both City Press and the Goodman Gallery had both succumbed to the pressure and made the concessions the ANC and Zuma had originally demanded in court.
“The message that comes through us is that we will not win in court what we have not won in the streets,” ANC secretary general Gwede Mantashe told the crowd outside the court later that day.
Before the weekend was out, Murray was in hiding (according to two people familiar with his personal circumstances), City Press had decided to remove the image of the painting from its website (partially out of fear for the safety of journalists, editor Ferial Haffajee said), and the Goodman was left to face a crowd (the ANC threatened) of up to 50 000 angry people coming to defend the president’s dignity.
The gallery was the last holdout but, with the protest looming, found itself in late-night negotiations with the ANC, acknowledging that it never intended to cause harm, while maintaining it had the right to display the online picture of “The Spear”. But no agreement was reached.
By the time that the crowd, estimated at about 4000 people, marched on the gallery on Tuesday, it had become an unconditional promise to do as the party had asked.
A senior gallery staffer who was on hand to receive the petition felt that, in light of the large crowd of protesters outside, he could not refuse the demand to take the image off the website.
However, as the marchers dispersed, the gallery owner, Liza Essers, swiftly tried to set the record straight, releasing a statement to the effect that no agreement had been reached with the ANC. But less than 24 hours later, after a flurry of behind-the-scenes activity, the Goodman said it would remove the image from its website after all – not as part of a formal settlement, but in a gesture of good faith.
The sequence of events bears some resemblance to the effect the outrage over “The Spear” has had on Murray’s personal life. A member of the Shembe Church called for him to be stoned to death and a case of crimen injuria was opened against him, although its current status is not known. But the chances of a successful prosecution are remote at best and, in the highly unlikely event of conviction, he would mostly likely face only token punishment.
But Murray has received many death threats and is understood to be still in hiding.
Victory on the streets has not been the ANC’s only success regarding “The Spear”. This week, the Film and Publications Board (FPB) decided to place an age rating on the painting because of its sexual content.
If it does, it will be the first formal pronouncement by an official body on the painting, which could give Zuma a reason to demand the removal of the image from websites hosted in South Africa.
But the publications board’s process shows many irregularities. On Monday May 21, in a highly unusual move, the board dispatched five reviewers to the Goodman Gallery to see the painting. The reviewers, who may not be named according to a FPB tribunal ruling on Tuesday this week, “stormed” into the gallery, one of them said – before correcting himself to say they “went in gently”.
At the tribunal, the board was hard-pressed to provide records of the complaints it said had triggered the inspection and seemed confused over how many complaints had been received or when. The complainants could not be named, it said, although their names had been published.
The complaints apparently closely mirrored those the ANC had made to the courts in the preceding days.
The board’s chief executive, Yoliswa Makhasi, recused herself from the matter and swiftly deleted a Twitter post in which she had complained that newspapers were trying to prevent the board from publishing an age rating for the painting, a matter that officially would take nearly two more weeks to complete.
The board admitted that it had no jurisdiction relating to a complaint it received about City Press – but it would not dismiss the complaint.
It heard hours of argument from representatives of the gallery about why it had no jurisdiction over the painting itself, why it could not rate an artwork, why it could not rate a painting that no longer existed in its original form, and why it could not enforce an age rating or a ban online. Nevertheless, the board said, it had to act on the complaints.
The night after the painting was defaced by two men several lawyers with links to the ANC, including Krish Naidoo, arrived at the Rosebank Police Station where the alleged vandals had been taken to be charged.
Naidoo said he was briefed by the family of one of the accused. Asked whether he had been briefed by the ANC or had any discussions with it about “The Spear”, he refused to comment.
But Naidoo is understood to have approached the gallery on behalf of the ANC to discuss a settlement after the postponement of the court case.
Man in the street gives his two cents’ worth
It would have been only a matter of crossing the street to see “that painting”, but many of the Goodman Gallery’s neighbours on Jan Smuts Avenue in Johannesburg had priorities other than “The Spear”.
A bleary-eyed McKenzie Ntsoseng (26), reclining against the wall of a shop at the corner of the avenue and Bolton Street, an unwashed green sleeping bag over his knees, said: “You can’t take a picture of someone’s penis because it’s the South African law.”
Passing a joint to his sidewalk neighbour, Lifi Jonker (25), Ntsoseng said he had been sleeping on the street for 15 years and that the metro police were “always troubling us”.
Ntombi Sono, an account administrator at the David Krut bookstore and gallery, said the Goodman Gallery was closed when she visited but she had seen the painting in newspapers.
“Maybe when it comes to culture or religion, as black people we were not raised to see our elders naked. I was not offended. It’s not like it’s the first time I’ve seen a painting of a naked man. What triggered the issue of this thing? It’s this election and Zuma getting people on his side for the Mangaung thing.”
Further down Jan Smuts Avenue, Johann Odendal, owner of Pool ’n Pond Specialists, said he had also not seen the painting. He said he understood it from the artist’s point of view, but if it was “in the open eye of the public, young kids could see it”.
The clerk at Adult World, who did not want to be identified, said he had not seen “The Spear” but that Zuma should be left alone to “have his personal life and dignity”.
A man from Harare selling wire sculptures, who gave his name as Goredema, had visited the gallery and said “The Spear” would never have been exhibited in Zimbabwe and that pornography was not allowed.
“In South Africa you have freedom of speech and he [Brett Murray] uses that to his advantage. We need to respect each other and know your boundaries.”
Goredema was selling a small wire springbok sculpture, with gold beads, for R600. But “that painting cost R136 000”. – Matthew Burbidge