KRISTEN VAN SCHIE
A PAINTING, a political party, and a burst of emotion. There was no warning for Advocate Gcina Malindi SC’s breakdown in court yesterday.
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 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 – 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.
He spoke slowly and clearly, in his measured, eloquent way.
After all, he explained, the constitution had not yet 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 signalled 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 began ringing through the court.
The judges quickly adjourned and left the room.
Lawyers clustered around Malindi, offering him comfort, fetching him 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 one of the co-accused in the 37-month-long Delmas trial.
After his breakdown yesterday, the legal teams also 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.
Journalists swarmed around him.
“I’m an attorney, it’s unfortunate that I broke down,” he told them.