The Film and Publication Appeal Tribunal on Wednesday set aside the 16N classification of Brett Murray’s controversial painting of the president, after the Goodman Gallery appealed against the rating in September, on the grounds that it was "impermissible and unsustainable".
According to City Press, in its ruling, the tribunal says it appears the FPB attempted to use a section of the act governing its work aimed at protecting children to "vindicate the right to dignity of those who were affronted by the painting".
In terms of the law, the tribunal said, the FPB was not permitted to do so.
The tribunal also found that the board should not have considered the complaint against City Press (for publishing an image of the painting on its website) since the board has no jurisdiction over the newspaper or its website, and that erred in extending its decision to classify The Spear to all websites that had published the image, City Press said.
It found that the classification committee was "heavily influenced ... by the need to affirm the dignity of African males and to protect sensitive persons and children", and that there had been no evidence before the committee that "the painting would be harmful to children on the grounds that it seriously undermines and is insensitive to African culture".
The argument that the presence of nudity in the painting by default deems it "potentially disturbing, harmful or inappropriate to children" is flawed.
"It would mean that every artistic work that contained nudity would be deemed presumptively harmful to children," the tribunal found.
The tribunal did, however, agree that the classification committee's finding that The Spear is not pornographic, was correct.