The film Inxeba is harmful from a cultural perspective, says judge

2018-06-28 19:21
Inxeba poster (Supplied)

Inxeba poster (Supplied)

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From a cultural perspective, the award-winning film Inxeba (The Wound) is harmful, exposes teenagers to sexual conduct and exposes women to violence such as rape, the High Court in Pretoria heard on Thursday.

"If cultural beliefs and practices are to be considered, the film is harmful and disturbing and exposes 16-year-olds to the sexual conduct depicted in the film. The film included language which was degrading to Xhosa women and further exposed women to societal violence such as rape.

"It contains harmful scenes which could cause tensions within the Xhosa community and even within the broader African community," said Judge Joseph Raulinga.

Raulinga was handing down judgment in the matter in which the producers of the film, which explores homosexuality, wanted a decision to reclassify the movie as hardcore porn set aside.

READ: Inxeba (The Wound): Court rules that film is not hardcore porn

Reading his judgment, Raulinga said at the heart of the application was the issue of diversity, triggered by the showing and viewing of Inxeba (The Wound) in cinemas.

He noted that the Film and Publication Board had initially classified the film 16LS.

Complaints by the Man and Boy Foundation, Contralesa

On appeal, the Film and Publication Board Appeal Tribunal classified the film X18 SLNVP.

All this was done in terms of the Films and Publications Act, 65 of 1996, he said.

"In essence, the matter involves modernity pertaining to cultural rights and the right to expression. These issues require this court to give a purposive interpretation to the relevant provisions of the act, in order to find a balance between these diverse issues."

Indigenous Film Distribution and Urucu Media instituted application proceedings, seeking to review and set aside the decision of the tribunal taken on February 13, 2018, overruling the classification decision of the of the board and classifying the film X18 SNLVP, he said.

On July 6, 2017, the board classified the film Inxeba as 16LS.

In February this year, complaints were made by the Man and Boy Foundation and the Congress of Traditional Leaders of South Africa. On February 1 the board assisted them to launch an appeal with the tribunal.

Right to distribute film

On February 8 the filmmakers were informed about the appeal, which was heard on February 23.

He said the proceedings were a review and not an appeal.

"As a result, the decision of the tribunal can only be set aside if it falls foul of the provisions of PAJA (Promotion of Administrative Justice Act), which is a test for procedural breach in terms of section 6 (2) of PAJA," he said.

READ: Inxeba should be classified as porn, court hears

He said the filmmakers had the right to distribute the film and have it shown to the public on screens.

"This they submit is because the right to freedom of expression may only be limited by a law of general application... The application concerns the balancing of two parallel equations, which are by all means not always equal – the right to cultural rights and the right to freedom of expression – the need to balance the right of freedom of expression and the cultural rights."

He said the movie was set in the rural Eastern Cape in Komani.

A sacred practice

"The action is almost exclusively based on a Xhosa initiation school and the goings on among the attendees of the school, namely the initiates and their nurses or caregivers (amakhakatha)."

He said initiation and circumcision (ulwaluko) was central to the Xhosa people and their very existence.

The practice is a rite of passage to manhood and fatherhood.

"Initiation is strongly believed to be sacred not only by the amaXhosa but by the majority of African people in South Africa and other African countries."

He said sexual intercourse was a taboo subject in the context of initiation and anyone assigned to looking after initiates is prohibited from engaging in sexual conduct.

Secrecy is sacrosanct and deeply entrenched.

Taboo subjects

"It is presently widely believed that any pre-exposure to children under 18 years would contribute to gradual extinction of the practice."

There appears to be some sort of sexual conduct in the film.

"In this instance, the right of choice to engage in homosexual activity. Homosexuality is, as a given, a protected right. The issue is about the engagement in sexual activity at an initiation school by the two initiation nurses.

"Whether it is a homosexual or heterosexual relationship is irrelevant. The two competing rights here are cultural right and right of freedom of expression."

He said whether the sexual conduct depicted in the film was "explicit" or "implicit" must be judged contextually and in relation to the fact that the arena for the conduct in question is a sacred space where speaking about sexual conduct is considered taboo.

Raulinga said there were two cultural taboos that were committed.

Tribunal's decision 'well-founded'

One being that the sacredness of initiation was laid bare for the world to see.

"There is no doubt that in the context of this case, the right to freedom of expression has an effect on the rights of the Xhosa traditional group."

He said the filmmakers' freedom of expression and the competing rights of human dignity and cultural rights were considered by the tribunal when it made its decision.

However, while the decision of the tribunal was "well-founded" it was not for the court to make pronouncements on the lawfulness of the decision, Raulinga said.

"The tribunal, therefore, did not comply with the mandatory material procedure or condition prescribed by an empowering provision.

"The tribunal followed unfair and unlawful procedure."

In conclusion, he said in view of the fact that the tribunal lacked jurisdiction in the hearing of the appeal, the decision must be reviewed and set aside.

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