IN THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG

(REPUBLIC OF SOUTH AFRICA)

CASE NO: 17978/2012

In the matter between:

JACOB GEDLEYIHLEKISA ZUMA - First Applicant

AFRICAN NATIONAL CONGRESS - Second Applicant

and

GOODMAN GALLERY - First Respondent

CITY PRESS - Second Respondent

ANSWERING AFFIDAVIT

I, the undersigned

FIKILE-NTSIKELELO MOYA

do hereby make oath and state as follows:

1 I am an adult male and the executive editor of the City Press, the second respondent in this application. I am duly authorised to depose to this affidavit on behalf of the City Press.

2 The facts contained herein are true and correct and, unless the context indicates otherwise, within my personal knowledge. Where I make legal submissions, I do so on the advice of City Press's legal advisers.

3 I have read the founding affidavit of the First Applicant and the annexures attached thereto, including the confirmatory affidavit of Mr Jackson Mphikwa Mthembu. 

4 At the outset, and before answering the allegations contained in the founding affidavit ad seriatum, I deal with the following issues in turn:

4.1 The position of City Press in relation to the artwork and the flaws inherent the applicants' case;

4.2 The publication of the portrait in context; and

4.3 The extent of publication of the portrait by parties other than the respondents.

THE POSITION OF CITY PRESS AND THE FLAWS INHERENT IN THE APPLICANTS' CASE

5 City Press has no connection to Brett Murray or his exhibition at the Goodman Gallery. It had no involvement in the theme or details of the exhibition or the portrait that is the subject of the present application.

6 Instead, we at City Press did what we are constitutionally entitled and obliged to do - we reported on and reviewed an interesting and remarkable exhibition that marks a renaissance in protest art, which we are tracking. In doing so, we neither sought to endorse nor adopt the messages conveyed by the exhibition or the portrait. Rather, we allowed the public to judge the matter for itself.

7 We are now faced with the present application which seeks to compel us to remove the portrait from our website - in other words to remove it from public view.

8 I submit that the application in this regard is fatally flawed for at least three reasons:

8.1 First, there is no basis or precedent in law for an order of this sort;

8.2 Second, even if the order were legally permissible in theory, it would not be permissible here where it cannot be effective; and

8.3 Third, the publication of the portrait by City Press is lawful and does not breach any of the applicants' constitutional rights in light of well-established defences in our law.

9 I deal with each of these in turn.

No basis in law for the order

10 It is clear that the applicants seek to compel the removal of the artistic work from public view. They do not seek to impose some sort of time, manner and place restriction on the work - like an age restriction. Their aim, it is quite plain, is to obtain a blanket ban which would prevent all South Africans and indeed those in other countries from seeing the portrait.

11 They do not seek this order as a temporary order pending trial or some other event. They seek it as a final order, in perpetuity.

12 The notion of an order requiring a blanket ban on an artistic work is truly extraordinary and unprecedented. Neither City Press nor its lawyers are aware of any such order being made by our courts at any point in our history.

13 The order is also, I submit, legally untenable. It breaches a series of rights under section 16(1) of the Constitution:

13.1 The right of City Press to freedom of expression, including the right to freedom of the press and other media in section 16(1)(a) and the right to impart information and ideas in terms of section 16(1)(b);

13.2 The right of the artist, Brett Murray, and the Goodman Gallery to freedom of expression, including the right to impart information and ideas in terms of section 16(1)(b) and the right to freedom of artistic creativity in terms of section 16(1)(c); and

13.3 Most fundamentally, the right of the public to freedom of expression, including the right to receive information and ideas in terms of section 16(1)(b).

14 I point out in this regard that the applicants do not suggest (nor could they do so) that the publication of the portrait falls within the exceptional categories of speech contained in section 16(2) of the Constitution, which fall outside the scope of the right to freedom of expression in section 16(1).

15 Moreover, I am advised Supreme Court of Appeal has held that even temporary publication bans (let alone final and perpetual bans such as the present one) must occur very rarely and must then be narrowly tailored. It has held expressly that even where an infringement of rights is threatened, it should not be assumed that even a temporary ban should immediately ensue, least of all a ban that goes beyond the minimum that is required to protect the threatened right. This approach self-evidently applies with considerably greater force to the final and perpetual ban sought by the by the applicants in this case.

16 On this ground alone, therefore, there is no basis for the order sought and the application falls to be dismissed.

The order would not be effective

17 I am advised and submit that an interdict is a remedy to prevent future wrongs - not to remedy past wrongs.

18 Thus, even if an order directing a newspaper or gallery to remove an artistic work from public view were ever to be legally permissible (which is denied for the reasons set out above), I submit that such order could only ever be granted where it is quite clear that the order sought would be effective at properly resolving the complaints of the person affected. 

19 In the present case, the very opposite is true. The horse has long since bolted. As a direct consequence of the media statements made by the applicants and the launch of the present application, the portrait has been given widespread national and international publicity. 

20 Subsequent to the ANC media statement and because of it and the present application, the portrait is now available on at least 10 South African websites (none of which are controlled by the City Press or Goodman Gallery) and on websites in at least 15 foreign countries ranging from Argentina and Australia to Zambia and Zimbabwe. I deal with this in detail below. 

21 This is in addition to the picture being posted countless times by members of the public on social media, such as Twitter and Facebook. 

22 The order sought by the applicants will not and cannot alter this and, in the circumstances, the order sought simply cannot be effective.

23 On this ground too, the application falls to be dismissed.

The publication of the portrait was not unlawful

24 In light of the considerations set out above, it is not even necessary for this Court to determine whether the publication of the portrait is unlawful. Even if this Court was of the view that the publication of the portrait is unlawful, I submit that it must refuse any relief on the grounds set out above.

25 But if this Court is minded to consider the lawfulness of City Press carrying the picture on its website, I submit that the applicants cannot succeed on this ground too.

26 The applicants' case is said to rest on an infringement of their constitutional right to dignity. President Zuma at times also makes oblique reference to his right to privacy - thought it is his right to dignity that is his focus.

26.1 I am advised that it is well-established in our law that a juristic person has no constitutional right to dignity. That, with respect, is the end of the ANC's case. 

26.2 Likewise, while President Zuma has the right to privacy, the portrait does not disclose any private facts about him given that it derives from the artist's imagination. In any event, the notion of an interdict based on a right to privacy is unsustainable where there has already been such wide-scale publicity given to the image.

27 The case thus narrows to President Zuma's right to dignity. However, it is well established in law that no unlawful violation of a right to dignity occurs where:

27.1 The publication of the image or words concerned amounts to reasonable publication in the circumstances; or

27.2 The publication of the image or words concerned amounts to protected comment; or

27.3 The publication of the image or words concerned amounts to legitimate criticism.

28 In the present case, all three of such defences are applicable and all three operate to render the publication of the portrait lawful and not in breach of the right to dignity of President Zuma.

29 In this regard, the applicants contend at paras 16 and 22 of their founding affidavit that the portrait means that President Zuma is "a philanderer, a womanizer and one with no respect" and that he is "an abuser of power, corrupt and suffer(s) political ineptness". 

30 City Press does not concede that the portrait bears all of these meanings. However, even if it does, I submit that City Press's publication of the portrait amounts to reasonable publication, amounts to the publication of protected comment and amounts to the publication of legitimate criticism. It is therefore lawful. 

31 This is so in light of the following facts, all of which are public knowledge.

31.1 President Zuma has himself publicly stated that he has engaged in extra-marital sex with at least two women over the past few years. The first of these women is publicly known as "Kwezi" and was the complainant in the rape trial of President Zuma (in which he was acquitted). The second was Sonono Khoza, with whom President Zuma fathered a child - for which he publicly apologised. I refer in this regard to a summary of President Zuma's evidence at his rape trial, as appeared in the Mail & Guardian and two statements from the Presidency concerning President Zuma's fathering of child with Sonono Khoza, the daughter of Irvin Khoza. Copies are attached marked Annexures FM1 to FM3 and I pray that, to the extent necessary they be read as incorporated in this affidavit.

31.2 The High Court, Supreme Court of Appeal and Constitutional Court have all confirmed findings that, as a matter of fact, President Zuma's financial adviser, Schabir Shaik, had a corrupt relationship with President Zuma. The courts detailed specific instances of this corrupt relationship which appear from their judgments. I refer in this regard to the judgments of the Supreme Court of Appeal and Constitutional Court which are annexed as Annexures FM4 and FM5 and pray that to the extent necessary they be read as incorporated in this affidavit.

31.3 Charges against President Zuma in this regard have been withdrawn - though that decision that remains subject to a pending legal challenge. However, it is quite clear that the charges were withdrawn because of alleged abuses of power in the investigation - not because President Zuma had no case to answer. On the contrary, the statement by the NDPP, Mr Mpshe, explaining this decision makes this expressly clear. It records that President Zuma sought to make representations to the NDPP as to why, on the basis of the substantive merits of the case against him, the charges against him should not be pursued. However, it states that the NDPP could not find anything in this regard that militated against a continuation of the prosecution. This was also confirmed by an interview given by Advocate Billy Downer to the Mail & Guardian newspaper. I refer in this regard to copies of the NDPP statement and the interview, annexed as Annexures FM6 and FM7 and pray that to the extent necessary they be read as incorporated in this affidavit.

31.4 Finally, in relation to the question of "political ineptness", there has been repeated and widespread public criticism of President Zuma for being unable to take firm action and properly manage government. Two particularly acute and recent examples of this have been the manner in which the e-tolling saga was handled and the manner in which the matter of Lieutenant-General Richard Mdluli has been handled. I refer in this regard to two editorials that appeared in the City Press on 29 April 2012 and 6 May 2012 and a front-page editorial that appeared in the Business Day on 4 May 2012. Copies are attached as Annexures FM11 and FM12 which are annexed as Annexures FM8 to FM10 and I pray that to the extent necessary they be read as incorporated in this affidavit.

32 In light of all of the above, I submit that City Press's publication of the portrait:

32.1 amounts to reasonable publication;

32.2 amounts to the publication of protected comment; and

32.3 amounts to the publication of legitimate criticism.

33 The lawfulness of the publication is significantly bolstered by the fact that, as the applicants themselves expressly state in paragraph 32 of the founding papers, the portrait in the context of the exhibition seeks to convey a political criticism of the ANC and its leader. The publication of the portrait therefore amounts to political speech.

34 I refer also in this regard to the supporting affidavit filed together herewith and deposed to by Mr Mondli Makhanya on behalf of the South African National Editors Forum. Mr Makhanya is the Editor-in-Chief for Avusa Newspapers, the Chairperson of Sanef and a vastly experienced journalist. He states at paras 7 and 8:

I have noted the manner in which City Press covered the exhibition - initially in its print edition of 13 May 2012 and subsequently on its website. I noted, in particular that a review of the exhibition, written by City Press arts journalist Charl Blignaut and entitled "White Noise", is the centrepiece of the media outlet's coverage, including in both print and electronic formats. Images of various works from the exhibition, including one of the portrait, accompany the text of the review wherever published.

I understood that the images were not published to raise controversy or to titillate; to the contrary, it was clear to me that they were published to complement the text and give the reader, who may not have seen the exhibition, the opportunity to consider and reflect on the exhibition and make sense of the review. In the result, my view is that far from being unlawful or even inappropriate, the publication of the portrait is to be supported. It seems to me that publication of the portrait was undoubtedly reasonable in the circumstances and amounted to both fair comment and legitimate criticism.

35 I confirm the correctness of the facts and assessment set out in these paragraphs.

36 Finally, even if the publication of the portrait was not rendered lawful by the defences set out above (which it is), the publication of the portrait would still be rendered lawful by virtue of the fact that it is a publication of artistic creativity protected by section 16(1)(c) of the Constitution.

36.1 The position of City Press in this regard is fortified by a recognition of the important and indeed provocative role of political art in democracies, and of South Africa's rich heritage in this regard.

36.2 Political art continues to play a vital role in our society, as articulated by South African artist and art educator, Bongi Dhlomo in December 2004:

"Bongi Dhlomo in conversation with Michael Godby:

MG: what do you consider the most important role of art to be today, as the New South Africa celebrates ten years of democracy?

BD: "artists are (or we should be) barometers of our nation's conscience. We tease society's mind--we keep it busy--we create release valves for ourselves and our society. I believe that if you think about this in relation to both subject matter and form, this is a very important role for artists to play."

36.3 A copy of the interview is attached marked Annexure FM11.

36.4 It should be added that the notion of painting a head of state naked as a form of legitimate artistic creativity and satire is not unprecedented. I am aware of a 2011 oil painting by Margaret Sutherland of Canadian Prime Minister Stephen Harper. Sutherland's Emperor Haute Couture features a naked Harper reclining on a chaise longue surrounded by headless people in suits; a dog lies at his feet. I have been advised that Sutherland's work is a modern twist on Edouard Manet's impressionist masterpiece Olympia. An image of the oil painting is available athttp://maggiethered.com/ and attached marked Annexure FM12.

36.5 I understand that the painting continues to hang as part of an exhibition at the central branch of the Kingston Frontenac Public Library in Ontario. The response of Harper to this painting is revealing. Rather than take legal action, as appears from the last mentioned annexure, Harper's communications chief, Andrew MacDougall, posted the following light-hearted message on twitter on 18 May 2012: "On the Sutherland painting: we're not impressed. Everyone knows the PM is a cat person".

37 Thus on the basis of no fewer than four separate defences, the publication of the portrait is lawful. These defences apply to any reliance by President Zuma on his rights to dignity and privacy as well as to any reliance by the ANC on its right to dignity, whatever that right might be.

38 This does not mean that City Press itself endorses all of the sentiments said to be conveyed by the portrait. But it does mean that such views of the artist are lawful, that City Press is entitled to publish them and, most critically, that the public is entitled to receive them.

39 In the circumstances, the application falls to be dismissed on this ground too.

THE PUBLICATION OF THE PORTRAIT IN CONTEXT

The artist responsible for the portrait

40 Brett Murray ("Murray"), the artist responsible for the portrait, lives and works in Cape Town. He has not been cited as a respondent in this matter.

41 According to his biography, available athttp://www.brettmurray.co.za/biography/ and attached marked Annexure FM13 , Murray -

41.1 studied at the University of Cape Town where -

41.1.1 he was awarded a Master of Fine Arts degree with distinction in 1989;

41.1.2 the title of his dissertation was "A Group of Satirical Sculptures Examining Social and Political Paradoxes in the South African Context"; and

41.1.3 he won numerous scholarships and awards, both as an undergraduate and postgraduate student;

41.2 has exhibited extensively in South Africa and abroad, including at -

41.2.1 the Rembrandt Gallery in Johannesburg in 1996;

41.2.2 the Bell-Roberts Gallery in Cape Town in 2000;

41.2.3 the Axis Gallery in New York in 2003;

41.2.4 the Goodman Gallery in Johannesburg in 2006;

41.2.5 the Cape Town and Johannesburg branches of the Goodman Gallery in 2007 and 2009;

41.2.6 the Goodman Gallery in Cape Town in 2010;

41.2.7 the Goodman Gallery in Johannesburg in 2012 (the exhibition which includes the portrait that is the subject of this application); and

41.2.8 the Cape Town International Convention Centre.

41.3 has had his works included in -

41.3.1 the Cuban Biennial of 1994, which were subsequently exhibited at the Ludwig Museum of Contemporary Art in Germany.;

41.3.2 the group show, "Springtime in Chile" at the Museum of Contemporary Art in Santiago, Chile;

41.3.3 the travelling show "Liberated Voices, Contemporary Art From South Africa", which opened at the Museum for African Art in New York in 1998;

41.3.4 the show "Min(d)fields" at the Kunsthaus in Baselland, Switzerland in 2004; and

41.3.5 the show "The Geopolitics of Animation‘ at the Centro Andaluz de Arte Contemporaneo in Seville in Spain in 2007;

41.4 has curated numerous exhibitions;

41.5 established the sculpture department at the University of Stellenbosch from 1991 to 1994;

41.6 co-founded a non-profit company in 1999 that "manage[s] and initiate[s] art projects in the public arena with the [aim] to develop a greater profile for public art in Cape Town";

41.7 has won public art competitions/commissions; and

41.8 has his work housed in a number of South African and international public collections, including -

41.8.1 Iziko, South African National Gallery, Cape Town;

41.8.2 Johannesburg Art Gallery;

41.8.3 Durban Art Gallery;

41.8.4 Tatham Art Gallery, Pietermaritzburg;

41.8.5 University of the Witwatersrand, Johannesburg;

41.8.6 University of Cape Town;

41.8.7 University of South Africa, Pretoria;

41.8.8 Sandton Municipality, Johannesburg;

41.8.9 South African Broadcasting Corporation, Johannesburg;

41.8.10 The South African Reserve Bank, Johannesburg;

41.8.11 Sindika Dokolo African Collection of Contemporary Art, Luanda, Angola;

41.8.12 Red Bull, Salzburg, Austria; and

41.8.13 Collection of Mikki and Stanley Weithorn, USA.

42 Murray is well-known for his work entitled "Save the Press", published by the Save the Press Campaign in 1989. A copy of the work is attached marked Annexure FM14.

43 From 23 March to 29 August 2011, "Save the Press" was included in an exhibition at the Museum of Modern Art ("MoMA") in New York entitled "Impressions from South Africa, 1965 to Now".

44 In a description of the exhibition, which is attached marked Annexure FM15and available at http://www.moma.org/wp/impressions_from_south_africa/, MoMA notes as follows:

Printmaking in South Africa has been a tool of collective political action, a means of subsistence, and, above all, a medium of artistic expression. Drawn entirely from the Museum's collection, Impressions from South Africa, 1965 to Now features prints, posters, books, and wall stencils created over the last five decades that demonstrate the exceptional reach, range, and impact of printmaking during and after a period of enormous political upheaval.

45 In a description of the work, attached marked Annexure FM16 and available athttp://www.moma.org/wp/impressions_from_south_africa/works/save-the-press/, MoMA contextualises the work:

Brett Murray derived this image from a photograph in David Goldblatt's historic photobook On the Mines (1973), which explores the harsh realities of mining in South Africa. The muzzled face appeared on posters and stickers for Save the Press, a short-lived grassroots campaign formed in Cape Town by journalists in reaction to draconian restrictions imposed by the apartheid government on the freedom of the press.

The exhibition of which the portrait forms part

46 The portrait presently at issue is one of over 50 works at the Goodman Gallery that collectively make up the exhibition entitled "Hail to the Thief II". These works include paintings, etchings, silk-screens and bronzes, amongst others. A list of the works is attached marked Annexure FM17.

47 In its description, which is attached marked Annexure FM18 and available athttp://www.goodman-gallery.com/exhibitions/265, the Goodman Gallery contextualises the exhibition:

This body of satirical work continues his acerbic attacks on abuses of power, corruption and political dumbness seen in his 2010 Cape Town show Hail to the Thief. In this sequel show, Murray's bronzes, etchings, paintings and silk-screens form part of a vitriolic and succinct censure of bad governance and are his attempts to humorously expose the paucity of morals and greed within the ruling elite.

48 Murray's previous exhibition is described by the Goodman Gallery as follows:

Whereas [Murray's] last show, Crocodile Tears, sought to parody [former President] Mbeki's still-born African Renaissance, Hail to the Thief uses the populist imagery and language currently in vogue with the present powers that be, to mock and goad.

49 The Goodman Gallery's description of the 2010 Cape Town show is attached marked Annexure FM19 and available at http://www.goodman-gallery.com/artists/brettmurray.

City press's coverage of the exhibition

50 In its print edition of 13 May 2012, City Press reported on the portrait in two ways:

50.1 First, a four-paragraph article on page 3 - entitled "R136 000 for Zuma's jewels" - briefly described the portrait, included an image of it covered partially by a price-tag, and explained that it had been one of the first works to sell soon after the exhibition had opened earlier that week; and

50.2 Second, a double-page spread in the entertainment supplement contained a review of the exhibition and images of some of the artworks, including the portrait. Written by Charl Blignaut (City Press Arts Journalist) and entitled "White Noise", the review carried the following strapline: "In Brett Murray's new exhibition the artist returns to his political protest roots". Depicted on the cover of the supplement is another work from the collection titled ‘Amandla' - a silk-screen adaptation of an anti-Apartheid poster that deliberately twists a struggle slogan 

51 Copies of the relevant pages are attached marked Annexures FM20 to FM22.

52 Blignaut's review, as well as images of a number of the works featured in the exhibition, are also available at http://www.citypress.co.za/Lifestyle/News/White-Noise-20120511. A copy is attached as Annexure FM23. In addition to an image of the portrait, images of the following works - which are attached marked Annexures FM24 to FM28 - are available on City Press's website by way of a direct link from the online review:

52.1 Amandla, 2010 - a silk-screen adaptation of an anti-Apartheid poster that deliberately twists a struggle slogan;

52.2 Sold, 2011 - a print of an ANC logo which substitutes the words "FOR SALE" for "ANC" and is covered, in part, by the word "SOLD";

52.3 Power and Control, 2011 - a raised fist (a symbol of protest) accompanied by a downward-facing fist (a symbol of oppression);

52.4 Monopoly, 2012 - described by City Press as "[a] tongue-in-cheek rendition of the Monopoly [Get Out of Jail Free] card"; and

52.5 Forward Comrades, 2012 - a reworked Johnnie Walker logo. 

53 The portrait is one of the works to which Blignaut refers. As mentioned above, it is also one of the works in respect of which an image is available on City Press's website.

54 I emphasise that until the ANC issued a statement about this matter (and thereafter launched the present application), there had been fairly minimal viewing of the review page (to which the pictures, including the portrait at issue, are linked). Indeed, the relevant page at that stage did not even appear in the top ten pages visited at on the City Press webpage during any given day or night.

55 The ANC statement was then issued at approximately 4pm on Thursday May 17 2012. Immediately thereafter, the relevant page received a vast number of hits - including almost 17 000 hits during the 10 hour period from 6am to 4pm on Friday 18 May 2012. This is an unprecedented number of hits for any content item on the City Press website for a Friday.

56 The number of hits received by the page and its rank in the City Press top 10 pages during the relevant period is as follows:

57 Finally, in an article entitled "The spear of the nation stays up", which was published online on 18 May 2012, and in the City Press newspaper on 20 May 2012, City Press editor in chief, Ferial Haffajee explained why the paper could not agree to remove an image of the portrait from its website:

City Press covered an art exhibition, an interesting and remarkable exhibition that marks a renaissance in protest art, which we are tracking. To ask us now, as the ANC has done, to take down an image from our website is to ask us to participate in an act of censorship. As journalists worth our salt, we can't. Besides, the horse has bolted. We published on Sunday.... 

But mostly, I will not have my colleagues take down that image because the march away from progressive politics to patriarchal conservatism is everywhere. It is there in the Traditional Courts Bill, which seeks to return rural women to servitude; it is there in a governing party MP, who seeks to strip gay people of their right to love; it is there in the draft Protection of State Information Act, which seeks to pull a securocrat's dragnet over the free flow of news and information. It is there in the march of polygamy; there in the push-back on quotas for women politicians and there in the people who want art pulled down because they do not like its message. We are Mzansi after all, not Afghanistan, where they bulleted the Buddhas of Bamiyan because the art did not conform to what the rulers believed it should be.

58 A full copy of the article, available athttp://www.citypress.co.za/Columnists/The-spear-of-the-nation-stays-up-20120518, is attached marked Annexure FM29.

THE EXTENT OF PUBLICATION OF THE PORTRAIT BY PARTIES OTHER THAN THE RESPONDENTS

59 Following the ANC media statement and the launch of this application and because of them, images of the portrait have been published by numerous media outlets in South Africa, including in both print and electronic form, and internationally.

60 In particular, the image has been published - in full colour - in the following local newspapers:

60.1 The Times (18 May 2012);

60.2 The Saturday Star (19 May 2012); and

60.3 The Sowetan (18 May 2012).

61 Copies of the first and third items are attached as Annexures FM30 and FM31. A copy of the Saturday Star page was not available at the time of deposing to this affidavit.

62 In terms of electronic media, images of the portrait are widely available on the social media sites twitter and facebook, as well as on numerous websites. For example, the following ten locally-based websites (none of which are controlled by City Press or the Goodman Gallery) are amongst the many that are currently publishing an image of the portrait:

62.1 http://www.timeslive.co.za/entertainment/2012/05/18/distressing-portrait-of-zuma-angers-anc ;

62.2 http://constitutionallyspeaking.co.za/on-the-president-his-penis-and-bizarre-attempts-to-censor-a-work-of-art/;

62.3 http://www.news24.com/SouthAfrica/Politics/ANC-froths-over-Zumas-Spear-20120517;

62.4 http://francoisrademeyer.wordpress.com/2012/05/18/zuma-skildery-maak-moles/;

62.5 http://www.looklocal.co.za/looklocal/content/en/fourways/fourways-news-general?oid=5578918&sn=Detail&pid=217614&Murray-s-Zuma-painting-upsets-ANC;

62.6 http://www.roekeloos.co.za/kuns/zuma-se-penis-dis-groter-as-wat-jy-dink/;

62.7 http://www.censorbugbear.org/africa/south-africa/sa-cabinet-saps-plunged-into-fear;

62.8 http://inside-politics.org/2012/05/17/the-painting-of-president-zuma/;

62.9 http://www.dementia.co.za/forums/viewtopic.php?t=17225&p=224323; and

62.10 http://www.witness.co.za/index.php?showcontent&global%5B_id%5D=81431

63 Copies of the relevant pages of each of these websites are attached markedAnnexures FM32 to FM42.

64 In addition to extensive publication in South Africa, the portrait has been published on websites - including those of various media outlets - in more than 15 countries worldwide, including in Africa, Australasia, South America, Europe and North America:

64.1 Zambia: http://www.zambianwatchdog.com/2012/05/18/painting-showing-president-zuma-genitals-displayed-in-gallery/;

64.2 Zimbabwe: http://www.bulawayo24.com/index-id-news-sc-africa-byo-15344-article-Zuma+portrait+%22The+Spear%22+distasteful+and+indecent+-+ANC.html and http://www.thezimbabwemail.com/world/11793-presidential-penis-portrait-riles-anc.html;

64.3 Australia: http://www.abc.net.au/news/2012-05-19/exposed-president-stirs-up-controversy/4021208;

64.4 Argentina: http://vos.lavoz.com.ar/artes/polemica-cuadro-que-retrata-genitales-presidente-sudafricano;

64.5 Chile:http://www.emol.com/noticias/magazine/2012/05/18/541199/polemica-en-sudafrica-por-un-cuadro-que-retrata-los-genitales-del-presidente.html;

64.6 Brazil: http://oglobo.globo.com/mundo/governo-sul-africano-pede-retirada-de-quadro-que-retrata-zuma-nu-4934972;

64.7 Colombia: http://www.ntn24.com/news/news/painting-zumas-genitals-provok-13552;

64.8 Czech Republic: http://www.ceskatelevize.cz/ct24/svet/177514-jihoafrickemu-prezidentovi-se-hanbaty-portret-nelibi/;

64.9 Estonia: http://www.ohtuleht.ee/477471;

64.10 Lithuania:http://www.alfa.lt/straipsnis/14580197/Prezidento.Zumos.portretas.su.isryskintomis.genitalijomis.sukele.pykti=2012-05-18_18-33/;

64.11 Spain: http://www.republica.com/2012/05/18/polemica-en-sudafrica-por-un-cuadro-que-retrata-los-genitales-del-presidente-zuma_494793/;

64.12 Italy:http://www.asca.it/news-Sudafrica__dipinto_Zuma_con_genitali_in_vista_scatena_proteste_governo-1155980-ATT.html;

64.13 France:http://www.jeuneafrique.com/Article/ARTJAWEB20120518125213/ andhttp://afriquedusud.blog.lemonde.fr/2012/05/18/le-penis-de-zuma-un-cache-sexe-pour-lanc/;

64.14 Belgium: http://m.7sur7.be/article/news24/1505/1440595/LAfrique-du-Sud-exige-le-decrochage-dun-tableau-irreverencieux.html; 

64.15 Canada: http://www.lapresse.ca/international/afrique/201205/18/01-4526608-afrique-du-sud-retirez-ce-tableau-que-zuma-ne-saurait-voir.php; and

65 Copies of the relevant pages of each of these websites are attached markedAnnexures FM43 to FM60. All of these websites are, of course, able to be viewed by the South African public.

66 I now turn to deal with the founding affidavit ad seriatim. In doing so I will avoid answering at length given that the relevant issues have been dealt with above. Where the founding affidavit contains allegations or contentions inconsistent with what is stated in this affidavit, they must be taken to be denied by the City Press.

Ad paragraphs 1 and 2

67 Save to deny that the facts and submissions contained in the founding affidavit are true and correct, I note the contents of these paragraphs.

Ad paragraph 3

68 I note that the relief summarised in this paragraph does not accord with the relief sought in the notice of motion. I presume that the relief sought in the notice of motion is the relief sought by the applicants. 

69 I deny that the applicants are entitled to any relief and deny further that the rights of the applicants have been violated whether as alleged or otherwise. 

Ad paragraphs 4, 5 and 7

70 I deny the contentions contained in this paragraph and refer to what is stated above in this regard.

Ad paragraph 8

71 I deny that this matter is urgent and deny further the contentions contained in this paragraph regarding the first applicant's rights to dignity and privacy.

Ad paragraph 14

72 I refer to what is stated above in detail regarding the manner in which City Press dealt with the exhibition and the portrait in the City Press newspaper and on the City Press website. To the extent that what is contained in paragraph 14 is inconsistent therewith, I deny the contents of paragraph 14.

Ad paragraphs 15 - 21

73 I deny that it is proper for the present application to be brought on an urgent basis in the manner that it has been. 

73.1 The present application was launched at approximately 22h00 on Friday 19 May 2012. As I have made clear in detail above, it is clear that by that time widespread publication of portrait had already occurred both domestically (in print and electronically) and internationally. This was as a result of the ANC media statement issued at approximately 16h00 on Thursday 18 May 2012.

73.2 Moreover, as again is made clear above, the publication of the portrait will continue to occur irrespective of whether the relief sought by the applicants is granted.

74 In the circumstances there is no basis for this Court to be required to deal with this matter as one of extreme urgency as the applicants seek.

75 I deny the contents of paragraphs 16, 17 and 20 and deny in particular that the continued display of the portrait results in a violation of either of the applicants' rights. I reiterate what is stated above in this affidavit: even if the meanings pleaded by the applicants at paragraph 16 were to be accepted, the publication of the portrait is lawful and does not unlawfully breach any of the applicants' rights.

Ad paragraphs 22 - 24

76 I again reiterate what is stated above: even if the portrait in the context of the exhibition conveys the meaning pleaded at paragraph 22, this does not render the publication of the portrait unlawful.

77 I deny that the image of the ANC has been seriously tarnished by the portrait in question but deny, even if this is the case, that this renders the publication of the portrait unlawful.

78 In relation to paragraph 24, I deny that the portrait is making a mockery of the office of the President and deny, in any event, that this would have rendered the publication of the portrait is unlawful.

Ad paragraph 29

79 I accept for present purposes that President Zuma may have been felt personally offended upon receiving and viewing the portrait and that he believes that his constitutional rights have been and are being violated.

80 I deny, however, that this is sufficient for President Zuma or the ANC to succeed in the present application. In particular, I deny that such feelings of personal offence and violation that President Zuma may have felt were objectively reasonable in the circumstances. 

81 Moreover, I reiterate that, in any event, the publication of the picture is rendered lawful by the considerations set out in detail above.

Ad paragraph 32

82 I note that in this paragraph the applicants plead that the portrait is meant to be critical of the ANC for "abuses of power, corruption and political dumbness". Once that meaning has been pleaded by the applicants, it is quite plain that on their own version the portrait amounts to a form of political speech, protected comment and legitimate criticism. It would, I submit, be truly extraordinary if our law countenanced the banning of such expression. I submit, however, that our law does not permit this and that the application is stillborn as a result.

Ad paragraph 33

83 I deny that President Zuma sought any undertaking from City Press in relation to stopping the continuing exhibition or display of the portrait. As appears from annexure "GJZ7", the letter was written on behalf of the African National Congress alone and made no reference to the President's rights at all.

Ad paragraph 34

84 I confirm that City Press declined to give any undertaking to the ANC's legal representative in response to the ANC's request that the portrait be removed from the City Press website. City Press stands by that position for the reasons articulated in this affidavit.

Ad paragraph 36

85 I deny that President Zuma was forced to seek the intervention and protection of this Court and deny further that his rights and those of the ANC have been infringed in any way.

Ad paragraphs 37 - 38

86 I accept that President Zuma has a constitutional right to dignity, as do all ordinary South Africans. I deny that President Zuma's right to dignity has been infringed or violated by the publication of the portrait.

Ad paragraph 39

87 I deny that the course of conduct followed by the respondents has in any way been unlawful.

Ad paragraph 40

88 I again accept that President Zuma has a constitutional right to dignity. I deny that the right to dignity as in any way been infringed or violated by the publication of the portrait and deny that President Zuma has any clear right justifying the relief sought in the present application.

Ad paragraphs 41 - 42

89 I deny that there has been any violation of President Zuma's dignity by virtue of the publication of the portrait. 

90 I note the concession that the portrait has already been displayed and has been accessible to millions within and outside the country and that despite its removal it will continue to exist in the minds of those people who have seen it and had access to it. 

91 I strenuously deny the allegation that the removal of the portrait will ensure that the harm caused by its continuous publication and accessibility is limited to only those that have seen it or have had access to it. As I have demonstrated in detail above, the order sought by the applicants will not achieve this. It will instead only preclude the first and second respondents from displaying the portrait but will still allow other websites and entities to display the portrait. In other words, again as I have stated above, the horse has already long since bolted and this case does not warrant any interdict in the circumstances.

Ad paragraphs 43 - 46

92 I deny the contents of these paragraphs. I am advised and submit that the Supreme Court of Appeal has made clear that the appropriate remedy for a breach of dignity or reputation is ordinarily an award of damages at trial - not a prior restraint or publication ban in advance of such trial, let alone a blanket and perpetual ban such as is south by the applicants.

93 In the circumstances, the second respondent prays that the application against it be dismissed with costs, including the costs of two counsel.

FIKILE-NTSIKELELO MOYA

I hereby certify that the deponent knows and understands the contents of this affidavit and that it is to the best of his knowledge both true and correct. This affidavit was signed and sworn to before me at Johannesburg on this the ____day of ______________ 2012, and that the Regulations contained in Government Notice R.1258 of 21 July 1972, as amended, have been complied with.

_____________________________

COMMISSIONER OF OATHS

Source: www.citypress.co.za

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