Inxeba should be classified as porn, court hears

2018-03-28 20:33
Courtroom 6G at the North Gauteng High Court in Pretoria was packed ahead of the 'Inxeba' matter. (File, Amanda Khoza, News24)

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

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The controversial film Inxeba (The Wound) should be classified as hard-core porn, the North Gauteng High Court in Pretoria heard on Wednesday.

This was the view of advocate Viwe Notshe, SC, who is representing the Film and Publication Board's (FPB) appeal tribunal. Notshe said it was clear that there were visuals of a sexual nature in the film.

"The board finds the following scene - the anal sex scene between Vija and Xolani - as explicit…We saw the movie and saw the scene and it was clear that they were having sexual conduct," said Notshe.

Notshe was making his submission to the court in the matter between the film's producers and the tribunal. The producers want the tribunal to review its decision to rate the film X18SNLVP.

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

The FPB had initially rated it 16LS before the tribunal overturned it and essentially reclassified the film as hard-core pornography.

Judge Joseph Raulinga, who had also watched the movie, challenged Notshe saying the scenes were not of a graphic nature because no genitalia were exposed.

"But there was exposure of the bare buttocks...There is simulation, you may see side movements, up and down or side by side. You do not have to see genitals," said Notshe, who defined sexual conduct as penetration of the vagina or penetration of the buttocks.

"But in the movie, we do not see sexual conduct, we see movements," Raulinga countered.

Notshe said sexual conduct could be real or simulated.

He said, while the FPB had looked at the film and decided there was no sexual conduct, its appeals tribunal had thought otherwise.

"We saw both the buttocks of Vija and Xolani, they were both exposed," Notshe said, to which Raulinga replied that buttocks were not genitals.

"Even if we did not see buttocks, we seen the arm of Vija over the neck of Xolani, we also hear heavy breathing, that amounts to sexual intercourse," said Notshe.

Raulinga continued to challenge him by saying a film could not be classified as X18 due to scenes of sexual conduct. Instead, it had to show explicit sex.

‘Nothing to do with homophobia’

Raulinga also expressed concern with the manner in which the matter was handled because the applicants were given short notice.

Notshe said there were people knocking at the tribunal's door saying there was a movie out there that was not supposed to be seen by 16-year-olds.

Raulinga argued that a postponement of two days wouldn't have caused any damage to the matter.

Notshe responded by saying the movie would have caused more damage to teenagers.

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.

ALSO READ: Inxeba producers return to court after cleaning up at the Saftas

Mpofu added that the application was based on the wrong premise.

Contralesa and the board challenged the film's age restriction because they were concerned about the protection of children.

Mpofu said: "It is peddled out there that this has something to do with homophobia, aversion to homosexual and sexual intercourse. This matter has absolutely nothing to do with homophobia or whether the sex involved heterosexual people…"

Initiation schools

The court heard that sexual conduct and talking about sex during initiation was taboo and initiates were strictly prohibited from doing so. There were also medical reasons as to why sex was not allowed during that period.

"Secrecy is sacrosanct and deeply entrenched," Mpofu said, adding that Raulinga should consider those factors when making his decision.

He said the context of the matter was that there was a cultural community where rights to dignity had been invoked and the secrecy of the culture had been exposed.

On the sex scenes, Mpofu said the applicants conceded that the movie contained sexual conduct.

"The context is that the initial school, or the mountain, is a place where sexual conduct is prohibited. Even the parents are prohibited from having sexual conduct during the duration of the stay. The caregivers are not even allowed to have sex."

Mpofu said the movie could have said that Vije and Xolani were in a relationship without showing the visuals.

"We are here because it happened in the context of it taking place in an initiation school where sex is deemed a sacred act," he said, adding that there was no doubt that the movie showed explicit sex.

He asked the court to dismiss the application with costs.

Judgment was reserved.

Read more on:    culture  |  courts

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