Freedom of expression


Rights of Individuals

Extracted from

Talking about freedom of expression

Brett Murray’s controversial The Spear painting depicting President Jacob Zuma with his genitals exposed has received a lot of attention, pitting South Africans against one another on issues of freedom of expression in the country versus the rights of individuals.
The media has since been plunged into the middle of the brouhaha, with the ANC calling for a boycott of the City Press for publishing the image, while Zuma sought an interdict from the South Gauteng High Court against publishing the image.

The Mail & Guardian, in collaboration with Oresego Holdings, is hosting a media and communications colloquium to talk about how far freedom of expression can be taken, specifically in the South African context.

Speakers at the event include M&G editor-in-chief Nic Dawes, cartoonist Jonathan Shapiro (Zapiro), City Press editor Fariel Haffajee and political analyst Justice Malala.

Good evening readers. Some notes on the format of the colloquium:  It kicks off at 7pm, with an intro by Oresego group CEO Onkgopotse JJ Tabane.

Political analyst Eusebius McKaiser will then “set the tone”. I guess that means he’ll provide some background for the context of this debate on freedom of expression. Expect discussion around Brett Murray’s The Spear to feature prominently.

After that there will be two panel debates. The first will involve City Press editor Ferial Haffajee, former Azapo president Itumeleng Mosala, McKaiser again and political cartoonist Jonathan Shapiro aka Zapiro.

The second debate panel will feature writer Khaya Dlanga, political analyst Prince Mashele, Mail & Guardian editor-in-chief Nic Dawes, and City Press political reporter Carien du Plessis.

And then there’ll be a free for all, or as some would have it, an open discussion.



7:12:49 pm

Tabane says the colloquium must answer the question of how far we can go when it comes to freedom of expression. He mentions recent issues that will feed into the debate including the so-called Secrecy Bill, the role of the Film and Publication board, and debates around the Press Commission’s surprising conclusion of co-regulation, proof that dialogue can produce unseen outcomes.

Tabane says that the furore around the Goodman Gallery’s display of The Spear has thrust us into a debate not he limits of artistic freedom.

Tabane apologizes for calling McKaiser’s open letter to Haffajee (published on Facebook earlier today) as a “rant” and says that in order to debate you don’t need to denigrate somebody else’s view.



7:18:56 pm

McKaiser takes the podium, elicits laughter after saying that even as a gay man, he’s tired of hearing about penises now.

There are five questions that need answers, he says.

First, what does dignity mean?  Then, how do you draw the line? And, do we have healthy attitudes about nudity? (He says we haven’t had good discussions about this.) An aesthetic question, does it make sense to put a particular piece of artwork in a canon? Finally, courtesy of someone saying ‘Ferial Haffajee blocked me’, what should be our conception of free speech — should it be liberal or libertarian?

McKaiser says ANC bullied us into thinking it wasn’t legitimate to have these kinds of debates.

He says the legal and moral duty of artists to portray the world as you’d like them to see it and that “good art must be sincere and must reflect the world as he or she sees it”.

“Artists only have an obligation to their own conscience,” he says.

McKaiser says that the ANC is guilty of jingoism.

He says writer JM Coetzee left the country, in part, because they were not happy about his novel Disgrace being taught at schools; the black characters did not fit in with political purposes.



7:28:38 pm

McKaiser asks about where the lines are concerning an affront to one’s dignity, legally speaking.

Is someone feeling offended a threshold for their dignity being violated? He says if we accept that, then what lies around the corner is someone being thrown in jail for “pulling the zap sign” at a presidential motorcade.

McKaiser references the Zakes Mda piece in City Press recently that asks whether prudishness is African or Victorian.

McKaiser says if you look at a white person’s portrayal of a black person’s body and sexuality,you have to interrogate the work, the history of the artist and the intention of the artist before deciding that a piece of work is motivated by racism.

He says it’s reductionist to say one strike and you’re out, the penis is hanging out ergo racism.

He moves on to say that social media is challenging his own conception of free speech. However, there are moral limits to free speech.

He notes that although generally our threshold is more liberal, online it is more right wing, and this needs to be further interrogated.

He goes on to say that there has indeed been a national dialogue around the issues concerning Murray’s painting over the past few weeks and mentions commentators like Palo Jordan, Chris Thurman, Justice Malala, Zakes Mda and Ferial Haffajee grappling with the issues around The Spear in public fora.

“The last two weeks is testimony to just how robust this discussion actually is,” he says.

McKaiser steps down.



7:48:56 pm

Jonathan Shapiro — aka Zapiro — takes the podium and says that in the past few weeks the ANC has displayed “Stalinist and bullying” behavior and that he would have liked to have confronted some of the ANC leaders including Jackson Mthembu and Kgalema Mothlanthe about this.

Someone points out that Nkenke Kekana is in the room, and Shapiro acknowledges him but says he didn’t see Nkenke Kakana in action as a Stalinist this week. “I would have liked to have confronted some of the people who did the bullying this week,” he says.

Shapiro says there was real hurt around the painting but that the ANC “mercilessly exploited [it] in a decontextualised way”.

He provides some context with some slides and points out that Murray’s painting is a parody of a portrait of Lenin, and that he then parodied Murray’s painting in a cartoon published in the Sunday Times.

Shapiro refutes idea that Brett Murray didn’t lampoon white apartheid leaders and produces images from Murray’s earlier work as proof. There are imagines of naked men with phalluses exposed.

He also shows some of his own work featuring Magnus Malan and PW Botha also naked and with penises exposed. He also shows some of his cartoons featuring Bill Clinton flying in a phallic-shaped Air Force One and George W Bush having a rectal exam. (The doctor finds his brain there.)

Shapiro says he showed this last cartoon to world leaders in Davos at the World Economic Forum but this would never have been possible in South Africa.

He’s also been criticized for his comment on religious and ethnic leaders and shows his Swastika cartoon and the Prophet Mohammed cartoons, which got him into big trouble with the Jewish and Muslim communities here in South Africa.

Shapiro says that the conundrum everyone gets themselves into is that they say they believe in freedom of expression but you can’t draw the prophet or someone who’s behaving like a fascist in fascist uniform or a naked person.

There is much laughter as Shapiro shows one of his cartoons concerning the proposed media tribunal with some suggested improvements to his depictions of Jacob Zuma.

7:59:18 pm

The first panel is up. A new addition to the panel is journalism professor and former Mail & Guardian editor Anton Harber.

Haffajee asks listeners to look at various factors impacting freedom of expression — the defaced painting, the burning of newspapers on the weekend, the media appeals tribunal — and asks listeners to beware. She says she expects the Film Publication Board (FPB) will classify the painting as having an age restriction of 18.

Harber says he disagrees with Haffajee who has “been in the eye of the storm and has been pretty battered”.

He says she showed great wisdom and timing in deciding on Monday morning to take the image down from the City Press website.

He had a heavy heart when there were threats from a churchman for the artist to be stoned and the ANC went to court. He says he feels a lot better now for two reasons.

First all the parties have had the wisdom to allow us to move forward on this issue and that must be commended. The ANC for dropping their case, the Goodman Gallery for coming to an agreement with the ANC and for City Press for taking down the image.

“I can only hope the FPB will be equally wise,” he says.

Harber says its true the newspaper and the gallery were bullied and that the issue was exploited opportunistically by politicians. “It didn’t come from nowhere.”

But, secondly, the positive part of this is that issues of race, dignity, cultural inferiority and superiority and dominance in society are out there and being discussed like never before.

“The debate in the last week has been full and fascinating. We can’t leave the courts to decide what is acceptable and not acceptable. We need to have this debate and thrash it out … and that’s democracy,” he says.

Harber says all good journalism is disruptive, upsetting and sometimes shocking.

“We don’t want boring newspapers. We want good investigative stories. When Ferial ran the story, she said here’s an issue,” he says.

8:09:50 pm

Itumeleng Mosala now addressing the question of respect. He goes into detail about his background — he’s from Bloemfontein and works in the east of Pretoria. Much laughter at this.

He says likewise journalists come from somewhere. What he’s missing is the political economy of all our positions, perspectives and reactions on these things.

“We live in a society that has yet to be liberated. Freedom of expression has been fought for and died for but its not there yet,” he says.

Mosala says this debate should have happened before “so that we would have been ready for The Spear“.

“This is typical South Africa. The Spear happens and then we debate,” he says, again to laughter from the crowd.

He says he worries about the idea that the media has been bought, as if they do not come from somewhere like Bloemfontein, and the idea that the media is always right and knows everything.

“Sometimes what journalists write is so pathetic,” he says. They should know much more. There are smatterings of applause.

Mosala says he doesn’t actually know much about arts and culture even though he was once a DG of arts an culture. The mediator if “it was just a deployment”. And he says, he wasn’t an ANC cadre so he wasn’t deployed. Much laughter again

He now speaks about his family and says that issues of culture are important.

We move on to Shapiro.

He now mentions ANC stalwart Joe Modise.

8:14:10 pm

Shapiro decried the triumphalism of Gwede Mantashe, the decorating one of the people who defaced the painting, and the ideas of violence towards arts and editors for doing something that is about freedom of expression.

“This week we saw the constant, deliberate ramping up of this sort of thing,” he says.

He mentioned that the Human Rights Commission litmus test to see whether something has gone beyond the bounds of free speech towards hate speech. That is that if someone is encouraging people to harm or kill people from another group, that is the kind of speech that should be curtailed and prevented.

“Who did that in this instance? Did Brett Murray do that? Rubbish!” he says.

“There are many interpretations of art, cartoons, of different kinds of speech. I have yet to see anybody make a cogent argument that by doing this cartoon it was inciting hurt or death to any other people. It was potentially causing offense … the issue is, the people who did say things and do things that incited harm and hurt were the people opposed to this. People like the Shembe church head who said Brett should be stoned, people who said — unchecked — that he should be necklaced, and people that ramped up the violence,” he says.

8:20:43 pm

Mosala asks Shapiro: “Why are you [more] right than the people who are reacting to the painting?”

Much applause from the audience.

Shapiro says you can’t compare, as some people did, the display of Saartjie Bartman’s body to the display of a painting or representation of the president’s body.

McKaiser enters the fray. He says it’s not that you can’t express your disgust and opposition to the painting but that it’s the forum that you use to express your disgust.

From a legal perspective, if you were defamed or were the subject of hate speech there are legal outlets for that. The law does say there’s a threshold for the freedom of expression.

The social answer is call into talk show, write to papers, put your views as to why it’s morally disgusting, says McKaiser.

Backing up Shapiro’s position, he asks: Is Blade Nzimande right when he says the artwork should be destroyed. “That’s not legitimate engagement, that’s thuggery,” he says.


The mediator asks Mosala to respond and he says he doesn’t want to speak for Blade. More laughs from the audience.

Harber says the events of the last two weeks show that the past is very much with us.

Now we have questions from the audience.

8:43:39 pm

An audience member says most people here just saw the headline, not the whole story, and part of their anger was about the behavior of the media in the past.

Another says that as our society we are deifying our liberators, of power, and this is dangerous. She also says that we were brought up to go out on the street and throw rocks, and that’s how we get things done. The fact that you now own the things you’re burning down, is lost.

“We have a huge gap between the people in this room and the people who are out there in rallies,” she says. “If somebody says this is disgusting, they lap that up.”

A third audience member says the painting is an indication of where our social consensus is and where it ought to be. He says better social integration over the last 18 years may have helped the artist understand the possible consequences and interpretations of his work.

“We mustn’t have an irrational response to this thing. The key ingredient is what kind of leadership we have and what kind of debate they lead,” he says.

A fourth audience member asks what the difference between the Kill the Boer legal case and this one is — what makes the ANC protect one as free speech and define the other as hate speech.

Another says when you express yourself, be ready for the backlash that comes with it. People don’t engage each other and respect each other enough. She asks: “Where is Brett Murray? He’s like the Loch Ness Monster. You hear about him but you don’t see him.”

She says when Shapiro put up his Lady Justice painting, he came forward and defended it. Murray did no such thing.

A question for McKaiser: is the Constitution indicative of tribal law and views; are these laws secondary to Western law, who’s right should take precedence over another one?

Someone asks Haffajee, is it possible when the ANC threatened to pull advertising, that was the first thing that came to mind in deciding whether to pull the image form the website.

The moderator asks Haffajee to respond to this now.

“I wish the ANC hadn’t called off the boycott because sales are way up,” she says. Also,the ANC is not a big advertiser.

He asks whether she’s talking about the ANC or government and what the difference is between the ANC and government.

Haffajee: The one pays the other doesn’t.

8:47:30 pm

Some closing comments from the panel now.

McKaiser says absolutely the Constitution trumps other laws. And so it should be because you’ll find that most people want the death penalty, want kids to be smacked in schools, and no rights for gays.

Liberals are scared of going there because we don’t have numbers on our side but if you’re confident that the liberal values of the Constitution will stand, you shouldn’t be scared of that debate, he says.

Harber says he’s pleased that we all used the constitution as a reference point for this debate. He says, if you know a picture is going to cause a riot, its going to cause damage and harm, you have to think twice.

Asked if someone came to her with a similar picture, say of Helen Zille naked, would she put it up, Haffajee says this past week has turned her from flexible South African to fundamentalist journalist who would put it up.

With an opposing view to the one that’s predominated, Mosala says the Constitution is liberal and not good for most of South Africa but that’s a debate for another time. He also points out that there’s a difference between being highly uneducated and highly unschooled.

8:52:35 pm

The second panel has convened but there are still some comments form the audience.

One audience member says that a lot of the debate around the painting had to do with the fact that people’s feelings were very hurt, and that this could not be ignored.

Another agrees that there was a lot of hurt caused by the painting. He says there were very educated among the crowd, who thought the argument was not just about he president in his personal capacity. He says we cannot exclude the artists arrogance in not considering others. ”Some of you write as journalists, not thinking about another person,” he says.

Now back to the second panel.

9:04:45 pm

Carien du Plessis is not on the second panel but Nkenke Kekana, the ANC’s Gauteng spokesperson is.

We start with Kekana. He says, lets all refer to the Constitution. The ANC was in the same trenches as progressive artists and journalists in fighting apartheid. Today,

He asks why we keep talking about a “spear” and not a “penis”. He says this is because the word penis says something about undermining the dignity of another person.

Kekana says the Bill of Rights talks about balance and the Constitution talks about honor and respect, so “lets not talk about the right of one particular artist without thinking about what that can do to harm society,” he says.

He says that the clause of the Constitution that talks about freedom of speech has limitations, including incitement to violence or hate speech,

He dismisses McKaiser’s idea that someone who’s offended should go to radio or the newspapers to express their view on this and asks why someone else should choose the medium he chooses to protest against something he feels undermines his humans dignity.

Kekana says Ferial and others don’t understand the impact of what they’re drawing or writing on the internet, which allows people to distribute a piece of information to millions.

“Today its not about one newspaper, City Press, or Goodman Gallery. Many people don’t know about Goodman Gallery but they know about the painting because of the internet. The media must understand that they can incite violence,” he says, adding that the ANC protestors were expressing their freedom of speech.

9:14:15 pm

Nic Dawes, M&G editor in chief, says that journalists do have an ethical approach and that they also have an understanding of their potential for harm.

He speaks about the storm of anger of the paper’s publishing of one of Shapiro’s Prophet Muhammad cartoon.

“I thought about it very hard afterwards … and came to the following conclusion. we were right to defend in court our legal right to publish that cartoon. It wasn’t hate speech,” he says.

Dawes also said they did not want a court to establish, in law, whether or not the media should censor an image.

“At the same time I came to a conclusion that we had made a mistake in calculating the satirical balance. did the satirical objective of the cartoon, which was to talk about the ban [of Facebook] in Pakistan … match the potential for offense. Put more simply, was it worth it. As an editorial position, clearly I got that wrong,” he says.

Dawes now says he’ll speak about the Spear painting. “Or I’ll call it the penis painting if you prefer,” he says to Kekana.

Dawes says originally the picture wasn’t in the M&G in it’s entirety because it’s not necessarily something you want to have around your house. It wasn’t on the Web at first but it is not, then again the Web is different because you have a choice about accessing it.

Dawes says dignity is not your right not to be embarrassed. This, and questions of privacy, depend on the level of public office you hold.

Dawes says dignity and the potential for offense and pain is something that you need to take into account and as South Africans we need to be better at how we have conversations, he says.

9:24:56 pm

Political analyst Prince Mashele now speaking.

He speaks about his writing opinion pieces for a particular newspaper and the troubles it got him into at one point with ANC secretary general Gwede Mantashe. The paper complained that Mantashe kept calling to complain that they should not give Mashele space for his column. This happened despite the fact that he makes sure each article he writes is factually correct.

So, he asks, who determines freedom of expression? The answer comes from the audience — Gwede. There is laughter and applause.

Mashele says the court cases should have gone ahead because this issue can arise again tomorrow, and then if we repeat the process we will just have “endless philosphical discussions”.

“Politicians will always try to limit the space within which public opinion matters over it,” he says.

Mashele says that a person like himself — an analyst and commentator — would long ago have been killed in apartheid South Africa. We have that space now but it does not mean that the powers that be will not try to close the space, he says.

“We have to take it as a revolutionary fight, always to defend that space, even if Gwede Mantashe doesn’t get it,” he says.

9:31:48 pm

“Twitter emperor” Khaya Dlanga now speaking.

He says the question we have to ask is whether all this noise has really been about the dignity of the president and nothing to do with protecting him from being embarrassed.

Tabane asks if he’s saying this is a smokescreen for something else, and he agrees.

“There was a reflection and power didn’t like what it saw,” he says.

“What we saw throughout this whole [incident] it’s that power responds with emotion,” he says.

He quotes Nelson Mandela who said: “Those who conduct themselves with morality, integrity and consistency need not fear the forces of inhumanity and cruelty.”

Dlanga asks whether the president has indeed conducted himself with morality, integrity and consistency, and refers to his fathering a child out of wedlock while in office.

He says the office of the president deserves respect but the occupant of the office should behave with dignity. “He must not expect dignity if he’s not going to give that office dignity. Should he expect to be treated with dignity if he does not respect the office?” he asks.

9:38:45 pm

Tabane now asks Dlanga if one has to do something to earn the right to dignity.

Kekana responds. He says human dignity in the Constitution is not like any other dignity, it’s because of our historic past.

He says if you enter a man’s house and you remove his trousers, you must expect him to fight because you’re undermining his dignity. “The dangling of a penis lowers the dignity of an individual, never mind how you try to justify it,” he says.

Dawes says he doesn’t want to get into a debate about whether its actually the president’s penis. The crowd appreciates the joke.

He says you don’t have to earn the right to dignity but you do have to earn the right to your reputation. It’s Zuma’s reputation that has been called into question here. It’s this distinction that justifies the cartoons of a satirist like Shapiro.

Dlanga says he is worried but he selective morality that is being applied by the state.

Mashele references a piece by the planning commission’s Joel Netshitenzhe in the run-up to the electoral conference in Polokwane — which he has cut out and filed — that asks, as we endorse the president, “what will cartoonists say?”

10:02:05 pm

Now there are more comments from the audience.

One member, an academic, says we need to be sensitive in conveying the way we communicate our thoughts and ideas. She relates the story of her domestic worker who has a grade 10, who told her about the painting and spoke about how, although she understood the point the artist was trying to make and why, she felt that it could have been done in a more dignified way.

Another says there’s a difference between honor and respect. “There are issues with the quality of leadership, there’s also an issue of who should draw the line and where the line should be drawn. Those are two different spaces we should be debating.”

An emotional speaker, she agrees that we have selective morality — we can’t see an African man with his clothes off but at the same time every ten seconds in this country a woman is raped. Protracted applause and ululation follows.

The next speaker calls herself a “recovering racist”. She says she’s grateful to Murray because “this pain has been suppressed for 20 years”. Instead of hiring thousands of police officers we should have hired counsellors and therapists to find the pain that we carry in this country.

She is not the first this evening to say that freedom of expression is a right that she would die for.

“This was not a painting about Jacob Zuma’s penis … this is about the collective reality that the ANC leadership is pissing on the people. That is the bottom line,” she says.

Another audience member says the City Press did not make the painting and did not necessarily promote the exhibition, they simply alerted us to it. “For that they’ve been made a villain … that should warn us all that the messenger is in the firing line,” he says.

He says instead of saying that because one is black or white, one should think about the issue in a certain way. Rather, we should accept that we can have different views on this, even within the same culture.

Another speaker says that she was surprised at how quickly, in Child Protection Week, the ANC managed to organize a protest against the Goodman Gallery and City Press, both of whom had already begun to step back from their positions.

She adds: “I’m a 100% Xhosa girl that was raised in the rural areas and I never took any offence when I saw that painting” and says instead of defending Zuma we should accept that there are sectors of society who are concerned about his character flaws and ask whether he’s the right person to lead the country in the next five years.

The next commentator is a doctor. He asks whether the editor of a newspaper would publish a paper that he’d written exposing her in any way?

The next person refers to Ayanda Mabulu’s 2010 painting and Shapiro’s cartoons, and the fact that the ANC has not until now asked for a boycott of these artists or newspapers. ”Why do it now?” he asks. “This all has to do with Mangaung. They’re trying to get sympathy votes.” The audience jeers.

The final comment from an audience member — this discussion helped us understand the consequences that might follow, when one expresses themselves.

10:12:34 pm

Final comments from the panel now. Tabane asks how far can we go with freedom of expression.

Dawes says we can go as far as the law allows us to go.

Mashele says this forum can’t answer than, only the Constitutional Court can.

With reference to Mashele’s earlier anecdote regarding Mantashe’s attempts to silence him, Dlanga says “We can go as far as Gwede says.”

Kekana says there are many other people out there who are angry about these issues, and he doesn’t expect the people gathered here to be very emotional about the debate.

“I’m not here to defend Gwede, I’m here to defend the ANC,” he says.

Kekana says the ANC isn’t arrogant although there are some individuals who may be.

“Journalists are not always right. Politicians are not always right. Artists are not always right. If you say something and you know that it harms others, you must know that you must retract and apologize,” he says.

“We can’t live in a society where everybody can do whatever they please. That is why there is a Constitution. The Constitution gives you rights but it also gives you responsibilities,” he says.

Kekana says the debate is not over, it started in Polokwane when there were discussions by the ANC on whether or not there should be a media tribunal.

He says parliament is going to look at this whole question of balancing human dignity with other rights.

“If you … measure public interest, those who still say that the painting was the correct thing to be painted, are not measuring the mood out there. The mood out there is not for this painting, for sure-sure. We can mobilize thousands and thousands of people to go out in the streets to demonstrate this thing because its our right as the ANC. That is not arrogance,” he says.

Kekana says that the ANC does hear your voice. “You’re not being arrested or shot. We have the right to reply, you have the right to debate,” he says.

Dawes says the space is narrowing — maybe not for someone like Mashele but for a junior journalist at the SABC it is. It narrowed for City Press this week, he says.

“If the space doesn’t allow for difficult stuff, we won’t be able to get from the stalemate to the future,” he says.

And that’s a wrap! Goodnight everyone.

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