Lawyers for President Jacob Zuma will have to refine their arguments over how the High Court in Johannesburg will implement a ban on the controversial artwork, The Spear, since the image has already gone viral.
While on one hand, advocate Gcina Malindi delivered a compelling argument about the classist nature of the painting, and how it was “an insult” to Zuma, he appeared to falter when asked how the court would police a court order making the image unlawful and unconstitutional.
The ANC, along with Zuma and his children have called on judges Neels Claassen, Lucy Mailula and Fayeeza Kathree-Setiloane to go beyond interdicting the Goodman Gallery and the City Press newspaper from displaying the portrait.
Since Brett Murray’s painting of Zuma with his genitals on display first appeared in the newspapers two weeks ago it has been replicated, copied, lampooned and photographed. It has also been carried on international news websites, Facebook and Twitter.
Judge Kathree-Setiloane put it to Malindi that “the image is already out there”, while Judge Claassen said an apology from the gallery, City Press and artist Brett Murray, “can be monitored” while it would be near-impossible to police a declaration of unlawfulness in the digital age. “What happens when the image is downloaded from various other websites? Would that be a transgression?” Claassen asked.
University of KwaZulu-Natal constitutional law lecturer David Hulme says the implementation of a court order which would effectively ban the painting is a major hurdle in Zuma’s case.
“The internet hasn’t changed law as much as its practical application… Courts don’t like to make impractical judgments. In this case there is a change in reality brought about by the internet. Can it (the painting) effectively be banned? Can you stop someone from displaying it in a gallery while it already has a Wikipedia page? How do you stop it from being seen internationally?” Hulme said.
On Thursday Judge Claassen had quoted a British judgment in a case where the UK government tried to prohibit the publication of the memoirs of an MI5 officer, although the book could be obtained in other countries.
“If such was the law, then the law would indeed be an ass, for it would seek to deny our citizens the right to be informed of matters which are freely available throughout the rest of the world,” Lord Hugh Griffiths had said in his 1988 UK judgment.
Meanwhile, in heads of argument before the court the gallery and Murray say the order Zuma wants is “indistinguishable from a censorship ban”. The gallery argues that the painting was never intended for the mass market but rather for the “educated, art-loving, knowledgeable and opinionated” typical visitor to the gallery. It also argues that the portrait is “highly symbolic” and needs to be viewed in the context of the rest of the exhibition.
“Brett Murray’s exhibition is tongue-in-cheek.”
It forms part of “the long-established historical tradition of political satire… that reflects on the nature of society, perception and, like the jester, constantly cajoles or stings us to question our preconceptions,” the gallery says.
It has drawn on the expertise of arts professors to cement its case.
The case will return to court for a three-day hearing which is likely to be heated, however dates have yet to be finalised.