Classification of ‘The Spear’ unnecessary, says lawyer

The Film and Publication Board conceded on Tuesday that it did not have the legal jurisdiction to classify any content published or broadcast by media outlets.

The board’s chief operations officer Mmapula Fisha told a hearing about the classification of artist Brett Murray’s painting The Spear in Pretoria that she understood and respected the self-regulation of the print media.

She said not having jurisdiction over the City Press newspaper did not mean the board was going “to fold hands over the issue”.

City Press published a photo of the painting, which depicts President Jacob Zuma with genitals exposed, on its website. Following a public outcry, it removed the image.

Fisha said her organisation had sound working relations with the press ombud and would forward the complaints about City Press “for the sake of the complainants”.


“We have always known that we don’t have the authority over newspapers. But we don’t fold our hands. We have to protect the children of this country,” said Fisha.

She said the board’s classification board would go ahead and deliberate about the classification of the painting.

“We can only take further steps on the portrait after our classification committee has decided on it. We had the legal obligation to hear presentations from City Press,” said Fisha.

The board said the five classifiers dispatched to work on the portrait would come to a conclusion in the next week.

Advocate Matthew Welz, for the gallery, said the classification hearing was moot because the painting had been removed.

“Now the image no longer exists. We do not have the portrait in the gallery and you also heard it was removed from the City Press website,” Welz said.

Overstepping the mandate
City Press contended earlier that the board was overstepping its legal mandate as it had no jurisdiction to classify content published or broadcast by media outlets.

Steve Budlender, representing the newspaper, said bona fide newspapers were regulated by the press ombudsman and the South Africa Press Code.

“Where does the [FPB] its power to charge City Press?,” asked Budlender.

At that stage the board’s legal manager Sipho Risiba intervened and informed Budlender the board was mandated to regulate online content, which included the City Press website.

Budlender argued the website and the newspaper were one item and did not fall under the board’s authority. He pointed out that even under apartheid’s “repressive laws” newspapers were exempt from the censor board. Budlender urged the FPB to “stick to the law” and dismiss the complaints brought against the paper.

“If this board goes ahead and makes a ruling on the City Press online content, it would be in violation of its own act,” he said.

Public interest
He argued it was in the public interest for City Press as a media house to publish the portrait, without sensationalising or endorsing it.

City Press did not create the image. They did not endorse the image, but only published it as something which people need to know about.

“The media is doing what is allowed to do in the Constitution that is informing the public.”

Budlender contended that in a country where children aged 16 could have sex, get condoms and have abortions, “why would you want to restrict a portrait of a penis?”

The board’s chief operations officer Mmapula Fisha said the five classifiers had made “opinions over the portrait”, but a decision had not been reached.

“The classification at this stage is underway but we have not made a decision. We have the views of the classifiers we dispatched to examine and classify the portrait.”

Complainants were also allowed to make presentations to the FPB on Tuesday. The names of all complainants and the classifiers may not be published in the media, Fisha announced.

The FPB is a government entity under the home affairs department’s jurisdiction. – Sapa

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