Inxeba film producers shunned by FPB's Appeals Tribunal – court hears

2018-03-28 18:05
Courtroom 6G at the North Gauteng High Court in Pretoria was packed ahead of the 'Inxeba' matter. (Amanda Khoza, News24)

Courtroom 6G at the North Gauteng High Court in Pretoria was packed ahead of the 'Inxeba' matter. (Amanda Khoza, News24)

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The North Gauteng High Court in Pretoria heard arguments on whether the Film and Publication Board and its Appeals Tribunal should both be part of the matter involving the reclassification of the film, Inxeba (The Wound).

Judge Joseph Raulinga said it was difficult for him to make a ruling because he had to accommodate all the parties.

"You have two organs of state here at loggerheads.

"At the end of the day I will make a decision whether you are allowed to be here or not so that we do not waste time."

READ: PTA High Court dismisses urgent appeal to stop screening of Inxeba

He said he had watched the movie to help him with the case.

The film's producers had requested a review of the decision of the FPB's Appeal Tribunal which had awarded Inxeba a rating of X18SNLVP, overturning the FBP rating of 16LS – essentially classifying the film as hard-core pornography.

'The board is lost'

Advocate Viwe Notshe, representing the Appeals Tribunal, said the board was there to act as a cheerleader for the applicant.

"They have no interest in the matter. It is not their decision that is being reviewed.

"The board is lost, your Lordship, the board needs your direction. The classification is the decision of the board."

Advocate Dali Mpofu, who is representing the Congress of Traditional Leaders of South Africa (Contralesa) and the Man and Boy Foundation said his team was representing members of the public who had a grievance.

OPINION: No, Inxeba isn't a disrespectful gay sex romp

"They went to the board and they were referred to the Appeals Tribunal. We are here having a factional fight on who should be here or not."

He said according to the Films and Publications Act, a decision of the tribunal is deemed as a decision of the board and described the situation that the two were in as "complete schizophrenia".

Cultural issues

"What is happening here is actually embarrassing. You cannot have two bodies here against one another on a decision deemed to be made by both of them. Only one of them should be here."

Stephen Budlender, who is representing the producers and the distributors of the film, said it needed to be made clear what the matter was about.

"The real issues here are narrow. The issue is, did the tribunal follow lawful procedures?"

He said the debate was not on whether the film was offensive to anybody or whether Contralesa enjoyed the film or would have done something different about it.

"The Appeals Tribunal has purported to classify the film X18. This is a review of the statutory body.

"In our arguments we do not seek to say that culture is not important."

A question of compliance

Judge Raulinga interrupted him, saying cultural issues needed to be dealt with in a sensitive manner.

"We can't actually close our eyes and say because we have this international instrument, we don't care about 211 and 212 of the Constitution," he said.

Budlender said it was a question of whether the Appeals Tribunal had made the correct decision or not.

"The question is not to focus on what might have been but whether the Appeals Tribunal complied with the act," he said.

He said there were no reasons provided for the finding that the movie was without artistic merit.

"Freedom of expression also applies to expression that offends and disturbs."

The test was not that some people were shocked by the film, he argued.

"Films always have to be classified. It would be illegal to distribute a film without classification," he said.

"But when it comes to films, there is no right for a member of the public to complain with regards to the classification."


Did the movie disrespect the rights of isiXhosa culture and its sacred practices?


Judge Raulinga said the country's history and culture as well as human rights should be considered.

"In this country we have adopted certain cultures over our own instead of preserving our own. The culture located within this country must be observed as well."

The issue of circumcision was a sacred matter and that should be respected, he said.

"The people who practise it will be annoyed if these practices are taken out and shown to everybody because it is meant to be sacred," he said.

He said he had counted three sex scenes in the film.

"I consider our viewing of the film as an inspection in loco, in the three scenes seen that one would consider are of a sexual nature.

Sex scenes 'not pornographic'

"If this court were to decide that this film was not within what was required... maybe we can rather delete those three scenes from the film. What would you say to that?" he asked Budlender. 

Budlender argued that the whole point of the movie was the relationship that included the sex scenes.

"If there was no showing of the three sex scenes then it would destroy the extraordinary ending."

He said there was no doubt that there was sexual conduct in the movie but that the scenes were not pornographic because they did not show graphic and detailed sexual conduct. 

"When one thinks about pornography, one sees detailed scenes, one sees genitals and long sex scenes. This movie is not for erotic sensation. This film cannot be classified as pornography on any basis." 

Budlender said his clients had an artistic expression defence. The film had won several awards at the recently held South African Film and Television Awards. Out of eight nominations, the movie took home six awards.

Freedom of expression

He said if his clients had been given a chance to be heard by the tribunal, they would have informed it that they had won several awards. 

"We have a situation where the Appeals Tribunal took a decision on a film produced by my clients who have legal rights but were never given an opportunity to be heard."

He said his clients were not informed in time about the Appeals Tribunal hearing.

"It is not just that there is no fair hearing, it is that the one side is given full indulgence."

Representing Right2Know, Advocate Gilbert Marcus said the right to freedom of expression extended to speakers and receivers.

"There is no compulsion to watch this movie." 

He said freedom of expression was most important when confronted with a controversial issue.

"That is where the right carries its vital value."  

An urgent application

The showing of the film in no way tried to demean other cultures – it raised questions about culture, he submitted.

Earlier this month, News24 reported that the film producers' High Court application, which sought to reverse the X18 rating, had been granted.

The urgent application had also sought an urgent interim court order, allowing the movie to be screened again.

In its papers, the FPB, represented by Motsoeneng Bill Attorneys, argued that it stood by its original classification of 16LS and therefore supported the application.

Wilson said Contralesa in Gauteng, the Man and Boy Foundation and the FPB's Appeals Tribunal all opposed the application to reclassify the movie, lodged by Webber Wentzel on behalf of the producers and distributor, Indigenous Film Distribution.

"All opposing parties eventually capitulated on the question of urgent interim relief and the court then granted an urgent interim order instructing the film to be screened, pending a thorough review of the Appeals Tribunal decision," Wilson said.

The High Court then ruled that the X rating be removed with immediate effect while it awaits the affidavits of representations from all affected parties, both for and opposed to the decision of the Appeals Tribunal, Wilson added.

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Read more on:    dali mpofu  |  pretoria  |  movies  |  inxeba  |  the wound  |  entertainment  |  courts

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