The Goodman Gallery told artist Brett Murray it would not be showing one of his work's in his latest exhibition because it might offend Muslim and Jewish viewers, the High Court in Johannesburg heard on Thursday.
"By indication Mr Murray accepted that it should not be displayed," said advocate Gcina Malindi, arguing on behalf of President Jacob Zuma who wants images of Murray's painting The Spear, which shows Zuma's genitals, removed on the grounds that it violates his constitutional right to dignity.
Zuma, the ANC, and his children want the painting removed from the gallery, even though two people were filmed painting over it on Tuesday.
The gallery has refused to remove the painting, saying that would be like censoring their artists.
City Press, who are also respondents, have refused to removed images of the un-defaced painting on the grounds of their constitutional right to freedom of expression.
Judge Neels Claassen wanted to know why there were racial overtones to the case, when three people who were in support of the painting staying up are black.
"...But [we] also have three black people saying that that picture is not necessarily to be interpreted as insulting. So it's black against black. So where does the racial question come in?" asked Claassen.
Malindi replied: "They are seeing art through the eyes of the elite class. It's not to say black people don't have greater appreciation of the arts. Black people also have high levels of appreciation of these things, but it is an elitist approach to where rights in South Africa must be pitched."
He said that elitist appreciation was that the most liberal approach must be taken without mediating diversity.
Murray should have asked himself if he was going to offend anyone when he was making the painting.
He implored the court to consider the diversity of South Africa and that no background or cultural approach should be regarded as inferior, because there was a "super-class" that believed things should only be seen through their eyes.
Claassen then asked: "Where is the evidence that black culture is inferior? Because if that is so Mr Malindi, you would not be standing here very eloquently arguing this matter," said Claassen."
Malindi replied that he had been privileged enough to have attended university.
They moved on to how it would be possible to control the dissemination of the pictures taken of the painting, when an adjournment was suddenly called.
Twitter feeds of people close to the door Malindi had exited from said he appeared to be upset.