Why we cried in court
The Spear case was about lost dignity for the majority
SOON after The Spear was seemingly buried, most conversations at watering holes, dinner tables and taxi ranks immediately turned to the future of our lamentable national team Bafana Bafana, or "Bafoona Bafoona", as Sowetan once called the inept lot.
But for advocates Muzi Sikhakhane and Gcina Malindi, the issues raised by the The Spear debate remain unaddressed.
Sikhakhane and Malindi represented President Jacob Zuma and the ANC in the case against the Goodman Gallery and City Press, seeking to have the painting removed from the gallery and taken off the newspaper's website.
The two, both seasoned advocates, hogged media attention when they became emotionally overwhelmed in court. Malindi, in particular, broke down in tears, forcing the adjournment of court proceedings in the Johannesburg High Court.
So why did they break down during court proceedings and what was the significance of that uncharacteristic moment?
Sikhakhane and Malindi (like many other young black South Africans) sacrificed their youth by getting directly involved in the fight to liberate this country.
Both are former United Democratic Front activists and were part of ANC-underground structures in the 1980s and suffered detention and brutal torture at the hands of apartheid security police.
Malindi was one of the accused in the infamous Delmas treason trial. The Delmas trialists were activists, who in 1985 were charged with treason, terrorism and furthering the aims of a banned organisation - and murder.
The murder charge related to the death of four councillors in the Vaal Triangle. He was convicted and sentenced to five years imprisonment on Robben Island in 1988 after a lengthy trial, but was released in 1989 after he won his appeal on a legal technicality. Sikhakhane was arrested, detained and convicted together with long-time friend and activist-turned political analyst, Aubrey Matshiqi, for MK activities.
Given this background, it is not difficult to understand what led to the two men "letting their guard down and getting emotionally involved" during the court hearing.
"For some reason, the issues and the manner in which we were asked certain questions, immediately brought back terrible memories of torture and harassment," Malindi told Sowetan in an interview.
"Once again, we were at pains to explain and justify the legitimacy of the existence of the historically oppressed as well as the legitimacy of their viewpoints."
Having to justify why Brett Murray's portrait was offensive brought back the memories of how the apartheid security police had tortured them. It was difficult to bear.
"For activists it was worse because your body - whether male or female - was used to show [that] you are nothing; you were stripped naked," said Malindi.
He explained why they felt the case was not only about Zuma being painted with his genitals hanging out, but rather about the black majority who were stripped of their dignity under apartheid.
Sikhakhane and Malindi pointed out that they were frustrated that 18 years into democracy they had to explain why they should be involved in a case where the rights of those whose liberation they had fought for were being trampled upon - in the name of freedom of expression.
"It sounded like the day I was forced [by the apartheid security police] to explain why should black people matter", said Malindi.
Added Sikhakhane: "We were not even arguing that freedom of expression or that of the media was an unimportant right. We were simply imploring the court to factor in all sensibilities in balancing the rights, particularly a paramount right like the right to dignity."
While welcoming the manner in which The Spear case was settled out of court, the two advocates feel an opportunity has been lost for the high court to rule on such an important matter regarding the limits of freedom of expression, especially the right to artistic creativity in relation to the right to dignity.
Both feel that it is unfortunate that "the legal question whether the inherent right to dignity may be infringed in the name of artistic creativity, or put another way, whether the right to freedom of expression may be limited by the inherent right to dignity will not be determined in the near future".
Sikhakhane and Malindi's concerns are important , especially in the view of Zuma's call for a social cohesion summit, which will deliberate on the challenges of building a truly non-racial South Africa that takes into cognisance the nation's cultural diversity.
In this regard, their position is that a non-racial South Africa cannot be built from a platform where the views of others are regarded as "silly and backward" simply because they do not agree with the elite.
Both believe that non-racialism cannot be built in a situation where members of the elite believe society is developing for their own convenience, to the exclusion of those who remain trapped in conditions where they continue to be stripped of their dignity by the scourge of poverty and unemployment.
It is also their view that for South Africans to succeed in building a new non-racial society, it is important to acknowledge that society is made up of different perspectives.
"It is also important to understand and acknowledge that all our statements made during a debate are not value-free but rather driven by our outlook and prejudices," said Sikhakhane.