The Spear: what will be argued in court

2012-05-23 13:58

The lawyers for the Goodman Gallery and City Press will argue tomorrow that Brett Murray’s controversial portrait, The Spear, cannot be banned because the Constitution protects the right to artistic expression.

President Jacob Zuma and the ANC have filed an urgent application before the South Gauteng High Court seeking an order to have the painting, in which Zuma’s genitals are exposed, removed from the gallery and an image of it removed from the City Press website.

The case will be heard tomorrow before a full bench, or three judges. The ANC has called on members to come to court tomorrow in support of the party and its president.

In their heads of argument filed before the court today, lawyers for the Goodman Gallery, led by David Unterhalter SC, said that the gallery, Murray, other practising artists and leading fine art academics who have filed affidavits in support all understand “the work as a symbolic and metaphorical satire”.

“They have testified that, like it or loathe it, The Spear has made an important contribution to the milieu in which they work,” court papers say.

“The Spear has been a catalyst for the type of deliberation that characterises and is indeed the lifeblood of a democracy.”

In their heads of arguments filed today, City Press’s lawyers, Steven Budlender and Buhle Lekokotla, say that they will argue that Zuma and the ANC’s case is “fatally flawed” because:
» “There is no basis or precedent in law for a blanket ban of a work of art”;
» No ban could be enforced as the image has been reproduced by numerous news organisations both in South Africa and around the world; and
» That City Press’s publication of the image was lawful.

In addition, the ANC, as an organisation and not an individual, has no constitutional right to dignity.

The newspaper contends that any banning of the artwork would be “extraordinary and unprecedented”. “We know of no such order by any court in South Africa, even in the darkest days of apartheid censorship. Indeed, we are unaware of any such order even being granted by foreign courts in comparable countries,” the court papers state. “The publication of the painting by City Press is relevant, honest and not malicious. It is made in the context of an art review covering an exhibition of political art of a kind rarely seen in South Africa since the advent of democracy.” City Press, which is seeking to have the matter dismissed with costs, will also argue that politicians and public office bearers should have “a thicker skin”. “Politicians knowingly lay themselves open to close scrutiny and forthright criticism by both journalists and the public at large, and consequently ought to display a greater degree of tolerance.” [View the story "ANC goes to court over Zuma’s jewels" on Storify]

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