JOHANNESBURG – A lifetime ago, a young black South African student was on trial with 21 other suspects accused by the white racist government of treason, terrorism and working for the African National Congress.
This week Gcina Malindi, one of the suspects who is now a lawyer, is representing the ANC and its president in one of the most closely watched trials in the brief history of democracy in South Africa.
During a nationally televised hearing Thursday, Malindi broke down in tears, later saying he had been overcome by memories of the apartheid era. It was a wrenching demonstration that the past and its racial divides are close to the surface in South Africa, even as its citizens struggle to build a future together.
The case Malindi is arguing, recessed indefinitely after opening Thursday, might seem to have little to do with race. It pits two rights guaranteed by the constitution against each other. President Jacob Zuma is asking the High Court to issue an order that the display of a painting depicting his genitals violates his constitutional right to dignity. The gallery and the artist Zuma named in his suit counter that freedom of expression, also protected by the constitution, is at stake.
Two men had walked into the Goodman Gallery Tuesday and defaced the portrait with paint, saying later they were acting to defend Zuma. The gallery then removed the painting and closed indefinitely. The case nonetheless continues, raising important constitutional issues as well as fueling debates about race, class and culture.
During Thursday's hearings, Neels Claassen, one of three presiding judges, challenged Malindi on the question of race. The judge asked why, in court papers, Malindi had argued that the artist's depiction of Zuma was akin to a "colonial attack on the black culture of this country."
The soft-spoken Malindi, who is black, told Claasen, who is white, that art experts who defended the painting were arguing from the perspective of South Africa's white, educated elite. Malindi said that in a country divided by education and culture, the court should take into account not just the opinions of a "super class" of art experts, but also the views of the many black South Africans, denied education under apartheid, who are angered and humiliated by the painting's message. His argument drew murmurs of approval in the packed courtroom from onlookers who included two of Zuma's children and several high-ranking ANC leaders.
Brett Murray, the artist, also raised race, in an affidavit presented to the court. Murray, who is white, said he produced anti-apartheid posters and other materials as an artist before white rule ended in 1994.
"I am not a racist," Murray said.
Murray said the intention of his more recent work is to express a sense of betrayal that some post-apartheid leaders were greedy or corrupt. He also said that details of Zuma's sex life had become part of the public debate in South Africa.
Zuma, 70, has been married six times — he currently has four wives, as his Zulu culture allows. He has 21 children, and acknowledged in 2010 that he fathered a child that year with a woman who was not among his wives.
In court Thursday, the debate, in measured lawyerly language, moved from race and class to what the court could do in the face of the wide dissemination of the painting on the internet. Claassen quoted a British ruling in another case that said trying to control what's on the Internet would make the legal system appear "an ass."
Malindi responded that the law in South Africa, its 1996 constitution, had been earned at great cost. He said that while many of the rights the constitution enshrined — to clean water, housing — had yet to be realized by the majority of South Africans. But "the law is not an ass," he said.
Then, he sank into his seat in sobs that could be heard throughout the courtroom.
In the 1980s, when he was accused of treason, Malindi was represented and befriended by George Bizos, Nelson Mandela's lawyer. In his memoir, Bizos recalls another moment when Malindi was reduced to tears in court.
On trial, Malindi was describing the impact of apartheid on black families. His father could not get permission to live and work in the city where his family lived in a shack, only allowed to visit his family for 72 hours at a time. Malindi, wiping away tears with his hand, recalled on the witness stand that when he was nine years old, he once tried to save his father from arrest by denying he knew who he was.
"I know him well," Bizos said in an interview Friday. "He's a friend. I am the godfather of his eldest daughter. He's a sensitive man.
"I wonder whether what happened to him in the witness stand came to mind" in court on Thursday, Bizos said.
Malindi told reporters after he had regained his composure Thursday that he regretted breaking down, and did not want to speak about it in detail. He did say, though, that he had been affected by apartheid memories.
Bizos said the judge showed little sympathy for Malindi during what became known as the Delmas Treason Trial. The legal proceedings dragged on from 1985 to 1989, Bizos recalled. It was a period of turmoil and violence in South Africa, and the trial drew international attention.
Malindi was convicted, sentenced to five years and sent to Robben Island. A year later, the convictions were overturned on appeal and Malindi and the others convicted were released.
Bizos said Malindi was encouraged to study law by his wife, then an attorney and now a judge, and other lawyers. Many people denied opportunity under apartheid went on to careers in law, medicine and other professions in post-apartheid South Africa, Bizos said. He said that showed how far apartheid's architects "misjudged the indigenous people of the country."