“The dogs bark and bite, even in cartoons" - Justice Albie Sachs on Free Speech and Dignity

Anti apartheid stalwart and former Constitutional Court Judge Albie Sachs has sparked strong opposition to his recent call in Durban (and reiterated last Thursday in Cape Town) for restraint from writers and cartoonists, and his singling out of Zapiro's 'Rape of Justice' cartoon as an instance where restraint could rather have been employed.

Zapiro is currently being sued by President Zuma for depicting him preparing to rape Lady Justice. The cartoonist has strongly defended his “right to be rude and to take on the most powerful people”.

Here we republish Justice Sach's speech in full...

Free spirits and ravaged souls: Tension at the heart of freedom of expression
Keynote address by Justice Albie Sachs on opening night of the Time of the Writer festival
14 March 2011 – Elizabeth Sneddon Theatre, University of KwaZulu- Natal, Durban.

"Let me soak up the applause while it’s still strong – you might be shocked by my opening statement. My opening words are: “The place of a writer is to sit on the fence.” In order to explain, I will start the story in a way that some of you would have heard already and ask you to be patient.

Everything suddenly was dark, totally dark. I knew something terrible was happening to me, I didn’t know what it was. And in that total obscurity, I hear a voice speaking to me in Portuguese, saying: “Albie, this is Ivo Garrido speaking to you; You are in the Maputo central hospital. Your arm is in a lamentable condition, you must face the future with courage.” And into the darkness I say: “but what happened?” And I hear another voice, a women’s voice saying: “It was a car bomb.” I fainted into euphoria.

That moment had come, that every freedom fighter is waiting for: “Will they come for me today? Will it be tonight? Will it be tomorrow? Will I get through the day? Will I get through the night? Will I be brave?” They had come for me, and I’d survived!

Time passes, I’m suddenly conscious and I’m feeling very light. Joyous, happy. My eyes are covered, I can’t see anything and I tell myself a joke. It’s an old joke about Himie Cohen who like me is a Jew. He falls off a bus, he gets up and moves his hands over his body as if to make the sign of the Cross. And someone says: “Himie, I didn’t know you were Catholic.”

“What do you mean Catholic? Spectacles… testicles…. wallet… and watch.”

I’m lying on the hospital bed (after, I was to learn afterwards, a seven hour operation), and I started with testicles. When the word went round the ANC camps, I who’ve tried without success all my life to be macho suddenly became a huge macho hero: “And the first thing comrade Albie did was reach for his balls.” All in order? In order….

Wallet? If my heart is damaged, big trouble. Wallet seems to be OK. Spectacles? The bandage is there but there is no big crater, if my brain is damaged it can be very serious. Then my arm slides down and there’s a gap. I say to myself: “it’s only an arm, it’s only an arm, I’ve only lost an arm.” And I sink back into euphoria knowing that I’ve survived. And with the total utter conviction that as I get better, my country, South Africa, would get better. This was in April 1988. When I came to tell the story of what it’s like to wake up without an arm, to go through this experience, I ended the description with the words: “I joke, therefore I am.”

Some months later I’m out of hospital, in London and very weak. There’s a ring at the door at the house where I’m staying. I open the door with some excitement. Two people sent by Oliver Tambo, leader of the ANC, are there to greet me on his behalf, the organisation’s behalf, to find out how I’m getting on. One is John Nkadimeng, trade union leader who had known my dad, seen me grow up. The other is Jacob Zuma. We walk inside; Zuma has that big Zuma’ smile, Nkadimeng; a long face and I’m determined to make Nkadimeng smile. He had lost a son to a bomb blast, but I felt so joyous and euphoric that I was sure I could get him to smile.

We sit down and I tell the story, not in a hurry, African style, enjoying all the nuances, the little flavours the quirks of human nature along the way, not rushing to get to the climax. Nkadimeng with the long face, Zuma chuckling. A chuckle becomes a gurgle, a gurgle becomes laughter and when I tell him‘spectacles, testicles’ he almost falls off the chair.

I say to myself that this is how we are going to get our new South Africa, my Jewish joke meeting up with humorous storytelling in the African way. We don’t flatten our world to create a bland non-racial society. We bring in what we’ve got; we share what we’ve got and enjoy being members of a single, unified but diverse nation.

Years later, Albie is now sitting in green robes as a Constitutional Court judge – hearing the ‘Laugh It Off Case’. Laugh It Off was a small firm. A graduate of Journalism decided to challenge the dominion, the power, of branding and logos by large commercial enterprises.

He took several logos from big firms and he parodied them on colorful t-shirts. Most of the targets laughed and some actually bought the t-shirts and gave them out to their employees to show they could take a joke. But not Carling Black Label. Their logo was accompanied by the words ‘Carling black labour, white guilt.’ They went to court; they got an order restraining distribution. The case went to the Court of Appeal who also didn’t think it was funny. You can criticize their policies as much as you like, but can’t use their property, their logo, in order to do so, the judges held.

It comes to the Constitutional Court and we unanimously decide that the free speech values, which are clearly strong here, completely outweigh any possible commercial detriment. I want to make a further point. It’s about the role of humour in democracy. Without humour, without the capacity to laugh at ourselves, to convert what are often very stressful and serious issues into the form of a joke, we bottle up our tensions, and democracy gets frustrated.

So I write a concurring judgment which the magazine, Noseweek, absolutely loved and printed almost in full. The story went around the world and the property lawyers got into a state of extreme tension. Obviously they were quite right – the whole recession that followed afterwards could be blamed on my judgment.

The free speech community think this is terrific and I’m basking in their good feeling – I sense that I’m ‘Mr. Nice Guy’, and intellectuals like yourselves think it’s wonderful to have a judge like that. Until, that is, I come across some words in a poem by Wally Serote.
It’s a long poem, really a novel in the form of a poem. The words that strike me are as follows: “The dogs bark and bite, even in cartoons. They inflict wounds in the silent soul. They bark as they tear the soul apart.” And I’m thinking: What’s Wally getting at? What is the source of that extreme disquiet and hurt that he is displaying?

Somebody asked me once at a book signing event about the ‘Laugh It Off case’ and how I came to write it and the background of humour and so on: “Justice Sachs, what do you think about the cartoon by Zapiro depicting president Zuma about to rape the female form of justice?” I said “I’m sorry but I’m a judge and President Zuma is suing Zapiro, and I can’t respond to that, the matter could come before the Court.”

To me it’s the dilemma created by the poem of Wally Serote that gives rise to the theme of my presentation today – how do you reconcile expression of a free spirit, on the one hand, with sensitivity to the ravaged soul of people subjected to historic hurt, on the other. It reminded me the distress felt on an occasion when the then the Speaker of the National Assembly, Baleka Mbete, went to an exhibition at the Grahamstown Arts Festival and she saw pictures by a feminist artist which showed vagina’s of black women being used as ash trays, and stormed out. She was indignant, and the artist couldn’t quite understand why. The artist said: “My whole point was to show how the bodies of black women are disrespected, how their sexuality is disregarded.” Yet Baleka, who is a noted African feminist and a very cultivated person, couldn’t bear it. She was shocked and felt violated in a visceral way.

I see certain parallels between what Wally Serote was saying and what Baleka felt. Something is going on here, something we need to be aware of. Not to ban speech, not to send people to jail, not to prohibit the production of challenging artwork, but to engage in meaningful dialogue with a view to achieving mutual understanding. I want to stress, I’m not dealing with the legal questions at all, it would be quite inappropriate for me to do so. [It’s a paradox. I’m speaking about free expression and I’m censoring myself. But that’s my duty as a former judge, still associated in the public mind with a judiciary that might have to deal with these questions.] I’m dealing with what seems to be a witty sharp political observation by a satirist of great calibre and great personal courage. Can we laugh at or bring a smile or a sense of satisfaction to people at looking at a cartoon that might be deeply wounding to millions and millions of other people out there, decent ordinary people who feel we might criticize President Zuma, poke fun at lots of things that he does, but still recognize that he is our President. In their view, you don’t depict the President of the country about to open his fly, with Ministers at his side urging him on, with a woman lying prone and helpless in front of him. For millions of our people that kind of scene is reminiscent of the stereotype of the black male rapist. It ravages the soul, the issue is deep, it’s hard, it’s sharp.

Now I stress, I’m not dealing with the legal side. Interestingly enough just this week there was a case in which the Constitutional Court said that in matters where defamation and dignity are involved, a court should strive wherever possible to get an apology rather than put a money value on the indignity imposed. Possibly something could emerge from that. It’s painful for me personally. I mentioned Jacob Zuma coming to see me after I came out of hospital. I remember him on another occasion telling me how poignant it was when he came out of Robben Island prison and went to his mother; a working class woman, in a township in Durban. She had a tiny little house and she had got it tidy and neat for him. She was so proud of it and so proud to receive him. He had to lie down there and he couldn’t say: “mommy, mama, conditions on Robben Island were better than your house that you want me to stay in.” She wanted him to promise that he would not get involved in the struggle any more; because it would be too painful for her if he went to jail again. He had been torn between placating his mother and following the very conscience that had brought him into jail in the first place.

I still also remember seeing Zuma in London, at the time when he was married to Nkosazana Zuma and I go to the apartment where he is living. Very apologetic, he is taking the family laundry to the laundrette. He apologised because we had a meeting to discuss something, but I suspect he was also apologetic in the way some men are when they are seen to be doing what some might consider an unmanly thing.

I also know Zapiro well, and count him as a friend. His mother was a Holocaust survivor. When I came back from exile, at every ANC meeting Gaby Shapiro was there with little flags. There’s always somebody with the buttons, the flags, the booklets, and she was there; as loyal, committed and anti-racist as you can get. Zapiro is a warm and brave person. He has taken positions of principle in relation to the rights of Palestinians that have made him quite unpopular amongst many members of the Jewish community. He is a good decent person.

Yet the imaginations, the feelings, the sensibilities of these two people whom I respect in different ways, came into a kind of collision. What’s the role of the artist in a situation like that?

On the fence.

It’s a funny thing, but in the English language, ‘sitting on the fence’ is always said as something negative, as though you are comfortable sitting on the fence, not taking sides. I ask you in the audience: have you ever sat on a fence? I think I can answer for the guys who are here tonight: it’s terrible. I suspect for women too it’s also not comfortable. So sitting on the fence, if we take it literally, is actually a very uncomfortable posture. And I think an uncomfortable posture is good for writers. It’s also precarious, and isn’t writing about trying to get a balance where things are swaying, to find a centre, to find a connection? It’s also unpredictable. There are lots of writers here. I doubt that any of you have ever predicted exactly, from the beginning to the end the journey, the itinerary of your work. Writing takes over, it has its own surprises, its own dynamics.

So while ‘sitting on the fence’ is meant to be cowardly and negative, in fact to do so successfully requires positivity and courage. The main reason for urging writers to ‘sit on the fence’ is to encourage them to be aware of both dimensions: of the free spirit, the right to be able to say everything, not to be afraid; on the one hand, and of the need to plumb into the deep emotions, the sense of history, the personality, being and significance of people, on the other. Not just of other writers and critics, but of people out there. We are trying so hard in this country to create levels, not of common political and aesthetic perspective, but of common sensibility, common respect, common willingness to see human beings out there where before we just saw stereotypes and classes and groups of people.

I’m dealing with the conscience of the writer, not the duty of the judge. I repeat, the conscience of the writer. In some respects it might be more expansive than the limits of the law and even defy the law. In other respects it’s narrower than the law. You don’t have to go to the perimeters of what the law allows. You have a responsibility to fellow human beings, to your craft, to humanity, to ubuntu, that should animate much of what you’re doing. Hopefully it should come out instinctively, intuitively, because it’s right, and that’s the kind of person you are, and not because you feel bound by any strictures of being politically correct.

What is important is that the fence itself be stable. If the fence collapses, then it’s chaotic. There’s no perspective, there’s no balancing, and just a crash. And the Constitution and the values of the Constitution provide a firm centre in relation to which you can wobble and sway, and lean over a lot this way and lean over a lot that way. And it’s both wonderful and terrible that we simply take our new constitutional dispensation for granted.

When I hear people saying to me: “But Albie, you spent all your life fighting for something, look what’s happening in this country,” I’m not fully with them. There are lots of things happening in this country, things that I don’t like, things that perturb me, upset me and distress me, but we have got basic foundational, democratic things that are right.

I did a calculation. We have an average of one President every four years. In other countries, it’s one President every forty years. We take our term limits for granted. I think it’s fantastic we take it for granted, it’s become normal. We don’t even say hallelujah. The President steps down after a maximum of two terms.

We have elections every five years. They are free, they are fair. Friends of mine are asking: “Should I vote? How do I vote? Should I spoil my paper? Who do I vote for?” In Cairo they are thinking about voting for the first time. It’s a marvelous moment. And we have reached a moment in which people are saying: should I bother to vote at all, is there anybody I can vote for? What a luxury for us to have in South Africa, to even have that choice, to be a bit discontented and bored. We take that for granted, which is great and awful at the same time.

We have a very spirited, lively press and media generally. You listen to the ‘phone in’ talk shows. Everybody phones in. They say terrific things, terrible things; that’s taken for granted. You speak your mind here. The biggest growth industry in South Africa today is stand-up comedians. They are almost replacing the analysts as the great critics of our country.

What it‘s saying to me is that maybe we South Africans haven’t won our security yet, but we have won our liberty. We speak our minds. That’s tremendous. People speak out, they complain, they criticize, through all sorts of media. Critics can rightfully say the media are still controlled by some conglomerates. We need greater access to the media – far more grassroots, community organisations and so on. Let that battle continue, I would personally support it.

Yet we speak our minds, we speak out freely and I can’t see anything happening in this country that’s going to pull us back from that.

I think most of you came here asking yourselves: “What’s Albie going to say about the Press Tribunal.” And Albie is going to say: “Once a judge, always a judge.” This gives me an excuse or a compulsion, whatever term you like, not to involve myself in issues that could very well come before the courts. I impose that restraint on myself voluntarily. It’s so important that we defend the integrity of the judiciary. People mustn’t feel that judges’ minds are made up: “Oh, we heard what Albie said; he was for [or against].” The same applies to the Information Bill. In any event these issues have been fully canvassed. One thing you will be sure of, anything that’s likely to deal with the rights of the press will get a big press. Day in and day out, 24 hours, 24/7, and appropriately so. So we know about all the threats, if there are threats, from the press themselves.

My last word… no I should say , my last words, not the last word. Free speech comes at a price, and it’s a heavy price. The price is that people can talk a lot of nonsense. They can say a lot of things that are distressing and upsetting. People who weren’t in the struggle, suddenly become super revolutionaries, at a time when it’s safe and comfortable to do so. So be it, that’s part of free speech.

There are, of course, some legal limitations and these are in many respects very culture- and history- specific. In the United States, a group of Nazis deliberately marched with Nazi chants and slogans, through a suburb of Chicago where many Holocaust survivors were living. The Chicago town council passed a regulation seeking to prevent them from doing so.

The Supreme Court struck down that regulation, on the basis that it was a violation of free speech. In Germany, on the other hand, Holocaust denial is a criminal offence. It’s so meaningful to people in Germany. It’s intensely bound up with the disastrous Nazi period and the recuperation of dignity and democracy. It’s not just a point of view to be controverted by another point of view. It strikes at the very heart and significance of the democracy in Germany.

In the United States, somebody planted a burning cross in a northern city on a grass verge opposite a place where a black family had moved into a white neighbourhood. The courts refused to give an injunction restraining that kind of action; on the basis of free speech. Can you imagine that being permitted in South Africa? No. There are limits on free speech that are controlled by the law. And rightly so. And international conventions prevent the dissemination of hate speech, speech that diminishes the dignity and personality of whole groups of people.

When you think of the Danish cartoons, a brilliant paper by Professor Mamdani, which I read recently, says: The issue is not one of blasphemy. You can criticize religious beliefs, whether within your own or other communities, that’s part of the freedom that we have. The real issue is one of bigotry. If you’re dealing with a group in a country where the cartoons are published, a marginalized group, a vulnerable group, in a context of great Islamophobia, and the cartoons then have an inflammatory effect, that, he felt should be subjected to some kind of a restraint. It was bigotry, not blasphemy.

Yet, within the limits of the law, the price we pay for free speech is that every K, L or M, or X, Y or Z can come out with his or her own views. We might find them very offensive. We might say why doesn’t somebody shut him up? Then another him comes along, why doesn’t somebody shut him up too? It’s sad that some of the things we fought so hard for, that non-racial ethos, that sense of ubuntu, that unifying connecting factor that enables us to achieve our maturity and dignity as South Africans, can be undermined in that way. But it’s a price we pay for free speech.

The answer to the unfair critiques and opportunistic attacks is not through suppression. It is to come out with better speech. Stronger speech. To find the new revolutionaries if you like. I’m not referring here to any political issues of any groups. I’m dealing just with the generation, the post ‘94 generation, that didn’t go through the fires in the way that we did.

Their idealism needs to be kindled, not simply through repeating and reciting heroic deeds of the past [and maybe leaving out some of the problems that we had, the difficulties, the pains, the dread that we lived through, the tensions, the tunnel vision and all the things that prevented us from becoming full human beings]. We need to find something that kindles the flame of idealism and curiosity in young people, to enable them to imagine and discover an affirmative and dignified role and a place for themselves in our marvelously contradictory world, a world that cries out for understanding and improvement. And who better to do that than the writers".

[Note: The emboldened text has been added by ourselves to enable readers with limited time to scan the salient points - Editor].

ZACKIE ACHMAT has written a response to this speech here.