'The Spear'. Not too long ago this expression would have been universally understood as meaning a traditional weapon with a long shaft and pointed tip used for thrusting or throwing. More recently you would be forgiven for thinking of Brett Murray's controversial painting by that name.

Art exhibitions (particularly modern art) are often intended to be provocative and controversial. The ‘Hail to the Thief II' exhibition including 'The Spear' could have run relatively unnoticed, appreciated only by art aficionados and regular visitors to the Goodman Gallery but for an article in the City Press. That article was followed by outrage voiced by politicians, civil society groups and comment on news websites and Twitter. An urgent application was brought in the High Court against the Goodman Gallery and City Press to compel the former to remove the 'The Spear' from the exhibition and the latter to remove images of the painting from its website. Parallel complaints were lodged with the Films and Publications Board, which was asked to classify the painting to ensure that children and sensitive people who might visit the art gallery would be alerted. COSATU called for a boycott of City Press and a march to the Goodman Gallery was arranged causing a section of Jan Smuts Avenue to be closed. Two men (acting independently of each other) then visited the gallery and defaced the painting.

Questions of rights and freedoms were raised and the extent of the freedom of expression in an open and democratic society was debated together with more nuanced considerations like the rights of children (both children in society in general and specifically the children of the President).

Eventually the gallery took down the painting (that had in the interim been sold) and the City Press removed the image from its website. This resolution was brought about by public pressure, the fact of the court application (not any court decision) and discussion between the parties involved. The Films and Publications Board classified the painting with a 16N restriction, which means that the painting is not to be viewed by anyone younger than 16 years and that there is a warning of nudity. The urgent court application was postponed without any final decision having been made and it seems likely that the application will simply be abandoned as the issue on the affidavits in that application is now moot.

No constitutional right is absolute and the uproar brought about by 'The Spear' has highlighted both the delicate balance that must be maintained in a constitutional democracy between competing rights and the ability of a society using all of the legitimate measures at its disposal (save for the unlawful and misguided damage to the painting itself) to bring a reasonably satisfactory conclusion to a contentious episode.

'The Spear' was certainly controversial but perhaps the controversy that was achieved was not the controversy that the exhibition as a whole intended to convey.

Written by Tim Fletcher, Director and National Practice Head, and Deshni Naidoo, Associate, Dispute Resolution Practice, Cliffe Dekker Hofmeyr