The dispute in the Johannesburg High Court over a painting of President Jacob Zuma has diverted into a side-row over the non-broadcast of an advocate’s breakdown at the hearing.
The court ruled on Thursday that video footage of the ANC’s lawyer crying may not be televised.
“Before we postpone the matter, there is another thing that has to be dealt with,” said Judge Neels Claassen.
“It has been brought to the court’s notice that the portion where the ANC and Zuma’s advocate, Gcina Malindi, broke down has been televised.
“And, as a full court, we are of the view that it should not be further televised,” he said.
This would apply locally and internationally.
Malindi broke down and was surrounded by colleagues before leaving the courtroom.
“I was just overcome by emotions,” he said after the matter was postponed indefinitely.
Government spokesman Jimmy Manyi said he was “appalled” and “disappointed” that e.tv had “censored” visuals of Malindi’s tears.
“Government believes that, in this particular instance, e.tv was biased and failed to broadcast a true reflection of the court proceedings,” he said.
“e.tv censored the visuals that would have shown his deep pain and emotion, that expressed the culmination of the sentiment of humiliation and denigration of the dignity of President Jacob Zuma, his office and the African culture that is shared by millions of South Africans.”
Malindi had been responding to a question on changes in SA when he started crying, and Judge Claassen adjourned the court.
In response, eNews said that in the past it had been criticised by the judiciary for airing sensational material unrelated to matters being argued.
“Firstly, eNews respects the rule of law. Advocate Malindi’s breakdown was unexpected and caught our team off-guard. The decision was taken not to broadcast the clip until we had clarity from the judges,” said group head of news Patrick Conroy.
It was mindful that the court might have taken a dim view of this being broadcast, regardless of editorial opinion.
“What the Government Communication and Information System fails to recognise is that normal editorial rules do not apply when filming in court. There are judicial sensitivities we must be mindful of and respect,” said Conroy.
The ANC, Zuma and his children want the Brett Murray painting, The Spear, showing Zuma with his genitals exposed, removed from the Goodman Gallery in Joburg.
Two people were filmed painting over it on Tuesday, because they believed it had violated Zuma’s constitutional right to dignity.
The gallery and City Press, which posted a picture of the painting on its website, have refused to remove it, arguing censorship and a constitutional right to freedom of expression.
Throughout the day, a large crowd of ANC supporters gathered outside the court to show their support for Zuma.
During the adjournment, ANC secretary-general Gwede Mantashe asked the crowd to march on the Goodman Gallery on Tuesday.
“The march must be successful and it must send a clear message. African culture is not inferior. We must protect African-ness,” Mantashe told the crowd.
He echoed SACP leader Blade Nzimande’s call to boycott City Press.
In the morning, the judges had strongly queried how they were expected to implement a ban on a picture that had already gone viral around the world.
Judge Claassen referred to the words of British judge Lord Hugh Griffiths, in 1988, when the government there tried to prohibit the publication of the memoirs of a former MI5 officer even though the book was freely available in the rest of the world.
“‘If such was the law then the law would indeed be an ass, for it would seek to deny our own citizens the right to be informed of matters which are freely available throughout the rest of the world’,” said Judge Claassen, quoting Griffiths.
“If the whole world can see it (The Spear), why not in this country?”
It was about the principle, argued Malindi, about vindication.
After all, he explained, the tenets of the constitution had not been fully realised, but the fall of apartheid had acted as vindication for those people who had struggled against it.
“A lot of things promised in the constitution have not reached many people; the right to water, access to water, sanitation, food and shelter,” he said.
“That does not mean the constitution or the law is an ass. They’ve been vindicated that their struggle was a just struggle.”
There was no particular signal in his voice, no break that told the gallery behind him that he was upset; just a moment of silence.
“I don’t think you’ve answered the question, but we’ll leave it at that,” said Judge Claassen.
Then Malindi’s sobs rang out.
Malindi was a political activist in his youth and was one of the co-accused in the 37-month-long Delmas Trial. – Additional reporting by Sapa