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.

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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

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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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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 at

http://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.

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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 at

http://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;

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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;

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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;

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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 FM15

and 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 at

http://www.moma.org/wp/impressions_from_south_africa/works/save-the-

press/, MoMA contextualises the work:

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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 at

http://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:

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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 

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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.

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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:

Date and times No. of hits Rank in City Press top 10 pages

Sunday May 13 6am to 4pm Less than 472 Not in top 10

Sunday May 13 4pm to Monday May 14 6am

Less than 356 Not in top 10

Monday 14 May 6am to 4pm Less than 676 Not in top 10

Monday May 14 4pm to Tuesday May 15 6am

Less than 145 Not in top 10

Tuesday May 15 6am to 4pm Less than 262 Not in top 10

Tuesday May 15 4pm to Wednesday May 16 6am

Less than 262 Not in top 10

Wednesday May 16 6am to 4pm Less than 254 Not in top 10

Wednesday May 16 4pm to Less than 87 Not in top 10

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Thursday May 17 6am

Thursday May 17 6am to 4pm Less than 250 Not in top 10

Thursday May 17 4pm – ANC statement released

Thursday May 17 4pm to Friday May 18 6am

1458 2

Friday May 18 6am to 4pm 16922 1

Friday May 18 4pm to Saturday May 19 6am

3243 1

Saturday May 19 6am to 4pm 2668 1

Saturday May 19 4pm to Sunday May 20 6am

1319 1

Sunday May 20 6am to 4pm 2542  2

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-

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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 at

http://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).

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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/;

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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 marked

Annexures 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;

26

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.isry

skintomis.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-

27

Sudafrica__dipinto_Zuma_con_genitali_in_vista_scatena_proteste_gove

rno-1155980-ATT.html;

64.13 France:

http://www.jeuneafrique.com/Article/ARTJAWEB20120518125213/ and

http://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 marked

Annexures 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.

28

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

29

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.

30

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.

31

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

32

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

33

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

34

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

Full names:

Address:

Capacity: