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A painting, a political party, and a burst of emotion. There was no warning for advocate Gcina Malindi SC’s breakdown in court on Thursday.
Throughout the morning, the judges had been hammering at one point: how were they expected to implement a ban on a picture that had already gone viral not only in SA, but around the world?
Judge Neels Claassen referred to the words of the British judge, Lord Hugh Griffiths, in 1988, when the UK government attempted 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 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. He spoke slowly and clearly, in his measured, eloquent way.
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 to 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 through the court.
The judges quickly adjourned and left the room.
Lawyers clustered around him. They offered him comfort, fetched water. His junior, Muzi Sikhakhane, sat with his head in his hands.
The gallery buzzed, confused.
Where had the breakdown come from? Colleagues claimed his talk of the transition to democracy brought back memories of his own time in the Struggle.
Malindi was a political activist in his youth, and was one of the co-accused in the 37-month-long Delmas Trial.
But in court on Thursday, Malindi conceded that the legal battle against The Spear was not a racial issue, but one of elitism.
Nobody deserved such an indignity as Zuma had suffered, he replied, when Judge Claassen asked if he would be making the same submissions were it former president FW de Klerk’s head on the portrait.
“Then why make it a racial argument?” asked Claassen.
“What evidence is there to say this is a colonial attack on the black culture of this country?”
He said the respondents to the case – artist Brett Murray, the Goodman Gallery and City Press newspaper– had provided evidence from three black artists saying the painting was not necessarily insulting.
“That’s black against black. Where does the racism come from?” asked Judge Claassen.
“Race in the eyes of three black experts is irrelevant because they’re connoisseurs of art,” replied Malindi.
“They see art through the eyes of the elite class of South Africa that has a greater appreciation of art… Mr Murray should have asked himself, ‘Should I have regard for the many South Africans who have no appreciation for contemporary art, or for some religious sector that might take offence at this?’… This is not a racial issue, but I implore the court to consider the diversity of South Africa.”
Judge Claassen said: “I can understand that argument. Even the elitist group must take into consideration the sensibilities of the rest of the country.”
He said the case should be a question of the dignity of one person versus the artistic expression of the other, regardless of their colour.
Shortly after, Malindi broke down.
The legal teams disappeared into the judges’ chambers.
It was more than two hours before they returned.
The matter was quickly postponed to a yet-to-be-determined date and an interdict placed on broadcasting the footage of Malindi’s breakdown.