Constitutional Hill

Why is Film and Publications Board ignoring Constitutional Court judgment?

Ignoring the Constitutional jurisprudence on the classification of “child pornography” (which it is bound by), as well as the decisions of the Film and Publications Review Board (which ought to guide its work) classifiers at the Film and Publications Board (FPB) last week wrongly banned a movie which would have been shown at the Durban Film Festival, either because they are ignorant of the law in terms of which they must exercise their powers, or because they decided to be guided by a misplaced, conservative, moralistic fervour – instead than by the law that they are bound by.

Last year I was asked to assist the FPB with the training of its classifiers. One of the “trainers” brought in for the workshop was a fire and brimstone preacher, ranting and raving about the “sins” of homosexuality and about the general “sexual depravity” of sex out of wedlock. Unlike the new head of the Vatican bank, who was allegedly caught stuck in an elevator with a rent boy (we are not told if they were going up or down), the fire and brimstone preacher did not display a healthy attitude towards sexual pleasure.

Of-Good-Report-Poster-CardIt was standard stuff for a man who makes a living out of scaring susceptible people into giving him money while instilling fear and shame into them for having a healthy and unremarkable attitude towards sex. But his hate-filled sermon was completely out of place at a workshop aimed at training classifiers to interpret and apply the provisions of the Film and Publications Act within the parameters of South Africa’s constitutional freedom of expression jurisprudence.

I was therefore not surprised to read that classifiers of the FPB last week banned the movie Of Good Report, by the Eastern Cape director Jahmil XT Qubeka, on the grounds that it contained “child pornography”, thus preventing it from being shown at the opening of the Durban Film Fesitval. The movie, which apparently makes a strong statement against the practice of school teachers acting as sugar daddies (I cannot know, because at the time of writing it would be a criminal offence to posses, let alone watch, the movie), contains a simulated oral sex scene between two actors who remain fully clothed, one of whom is portrayed as being younger than 18.

Section 18(3) of the Film and Publications Act requires the FPB to ban any movie that contains “child pornography”. Once a movie has been banned, it is a criminal offense to possess a copy of it and you are required to destroy all copies of the film in your possession or face criminal conviction (subject to an appeal to the Publications Review Board).

You do not have to be a legal expert to know that the movie was almost certainly wrongly classified as “child pornography”. The Act defines “child pornography” as including any image or any description of a person who is or who is depicted as being under the age of 18 engaged in “sexual conduct”. Sexual conduct is broadly defined and includes even the indirect fondling of breasts.

But despite these definitions the Act does not specifically define what would constitute “pornography” (as opposed to “child pornography”). Most of us would know that pornography is notoriously difficult to define. What, for example, is the difference between pornography and works of eroticism?

In a now famous (but brief) concurring judgment handed down in 1963, Mr Justice Potter Stewart of the US Supreme Court (in the case of Jacobellis v. Ohio) stated that hard-core pornography was very difficult to define “and perhaps I could never succeed in intelligibly doing so. But,” he added, “I know it when I see it”.

The classifiers at the FPB also thought they knew child pornography when they saw it. Unfortunately they ignored the Constitutional Court judgment on the meaning of the definition of “child pornography” in the Act, set out in the case of De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others. They also ignored the Film and Publications Review Board decision in which it overturned the banning imposed on the Argentinian movie XXY¸ which relied heavily on the Constitutional Court judgment.

In the De Reuck case the Court concluded that the primary meaning of “child pornography” in the Act related to the question of whether the film (or other publication) could objectively be deemed to appeal to the erotic as opposed to the aesthetic. As such a film or publication could only be classified as “child pornography” if it primarily involved the stimulation of erotic feelings rather than aesthetic feelings. The Court (in a judgment authored by Deputy Chief Justice Langa) then continued:

I would observe, however, that erotic and aesthetic feelings are not mutually exclusive. Some forms of pornography may contain an aesthetic element. Where, however, the aesthetic element is predominant, the image will not constitute pornography. With this qualification, the dictionary definition above fairly represents the primary meaning of ‘pornography’. ‘Child pornography’ bears a corresponding primary meaning where the sexual activity described or exhibited involves children. In my view, the section 1 definition is narrower that this primary meaning of child pornography.

As is always the case with any meaningful analysis of works of artistic expression, the context is all important. Unfortunately the members of the moral thought police who decided to ban Of Good Report because they deemed it to be “child pornography” clearly did not take the context into account.

As the De Reuck judgment made clear, it is not possible to determine whether an image as a whole amounts to child pornography without regard to the context. When you decide to classify a 90 minute film as child pornography after only watching 29 minutes – as the classifiers at the FPB did – you have wrongly failed to take account of the context and the artistic merit of the film. As the Constitutional Court pointed out:

It is probable that other parts of the film or publication alleged to contain child pornography may indicate whether the predominant purpose of the material, objectively construed, is to stimulate sexual arousal amongst its target viewers. The Act should be interpreted to allow consideration of such contextual evidence when it is relevant since the statute does not, in my view, preclude it.

It is true that the definition of “child pornography” had been amended in 2004 and that the De Reuck judgment dealt with the old definition. But as the decision of the Film and Publication Review Board found when it overturned the banning on the Argentinian movie XXY, the change in the definition was simply to clarify and simplify an unnecessarily wordy subsection and did not render the reasoning in De Reuck inapplicable.

In the case of XXY the FPB first banned the movie for containing child pornography as it depicted simulated sex between two actors presented as being younger than 18. The Review Board overturned that decision – relying on the Constitutional Court judgment in De Reuck – pointing out that the movie carried the profound and important message that premature decisions made at the birth of an intersex child can have seriously prejudicial and agonisingly tragic consequences for the child as s/he matures. Summarising the De Reuck interpretation of the Act the Review Board said:

The overarching enquiry, objectively viewed, is whether the purpose of the image is to stimulate sexual arousal in the target audience. This entails considering the context of the publication or film in which the image occurs as a visual presentation or scene. The court conducts the enquiry from the perspective of the reasonable viewer.

Although I am at present not allowed to see Of Good Report and have not seen it, the fact that everyone agrees that the offending scene contains no explicit sexual depictions; that the movie was chosen to open the Durban Film Festival and must be of some artistic value; that the FPB classifiers only watched 29 minutes of the movie before banning it; and that (given its important overall message) it would be difficult if not impossible for a reasonable person (judging objectively) to conclude that the main purpose of the movie was to “stimulate sexual arousal” in the target audience (those who hang out at film festivals); the decision by the classifiers of the FPB seem to make no sense.

Of course, I do not wish to give the prurient classifiers at the FPB – who seem to see perversion in any (simulated) sexual encounter involving an actor depicted younger as 18 – any ideas. But how long before they exercise their acute “artistic judgment” over a classic novel such as Vladimir Nabokov’s Lolita, and ban the book as containing child pornography? It might be a widely studied classic literary text, but if you apply the strict criteria the FPB applied to Of Good Report (in contrast to its own Review Board and the Constitutional Court) I have no doubt they would have to ban a work of literature by one of the greatest novelists of the twentieth century.

However, if they were to familiarise themselves with the relevant Constitutional Court judgments as well as the decisions of their own Review Board, they would have to stop banning films without even taking into account either the context or the artistic merit of the movie. But it is, of course, an open question whether most classifiers working for the FPB are capable of identifying artistic merit in a creative work of fiction.

  • Deloris Dolittle

    Well, you obviously did not train them well enough so you only have yourself to blame!

  • Ozoneblue

    Why is Pierre De Vos, a socalled Constitutional expert ignoring our honourable Chief Justice Mogoeng Mogoeng?

    “The point to be emphasized though is that a deliberate attempt is being made to delegitimize the JSC and through some scare tactics intimidate or mock the JSC into recommending without proper reflection, certain white men and at times certain women, for reasons best known to those who are campaigning for them.

    This illegitimate neo-political campaign to have certain people appointed must be strongly opposed. We must all use all available avenues to expose this retrogressive campaign and the danger it poses to nation-building and reconciliation. But be warned, that engagement is not for the faint-hearted.

    The defence of genuine transformation, as was the case during apartheid, inevitably attracts mockery, being labelled conservative and a tool of the Executive. Be ready for untold attacks from all sorts of people projecting themselves as fiercely independent, impartial, progressive analysts or highly respected professional commentators. Be ready to be trashed by a well coordinated network of individuals and entities often pretending to be working in isolation from each other.

    Remember, during apartheid whenever you were a puppet or the powers that-be thought you had the potential to be cajoled into becoming one, you were addressed as ‘’n goeie man” or “good man”. Nowadays those who seem to have arrogated to themselves the role of being masters of our destinies would label or crown you “highly or well respected” or “progressive”.”

    http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=390352&sn=Detail&pid=71616

  • Ozoneblue

    “For strangely enough, despite the importance of Mogoeng’s speech, the response to it has been extremely muted. The FW de Klerk Centre for Constitutional Rights noted its “deep concern” about its contents and suggested that Mogoeng had come perilously close to violating his oath of office, which obliges him “to administer justice to all persons alike, without fear, favour or prejudice in accordance with the constitution and the law”. It suggested, further, that Mogoeng should “take the greatest care” not to become embroiled in disputes that might come before the courts. But other than this statement and a comment by Inkatha Freedom Party warhorse Koos van der Merwe, a member of the JSC who suggested Mogoeng’s remarks were close to “hate speech”, there has been little public debate. Advocate Geoff Budlender, for example, who roasted me last year for drawing attention to the South African Communist Party’s claims about the political affiliations of late chief justice Arthur Chaskalson, has kept silent about the pronouncements of the incumbent. So, too, has the independent bar and the host of eminent advocates passed over for preferment by the JSC. Everyone had a choice in how to take on apartheid, which Mogoeng claims opponents of the JSC are determined to revive. Budlender, and other candidates overlooked for judicial office, such as Clive Plasket, Jeremy Gauntlett, Halton Cheadle and Willem van der Linde, were in the trenches of the struggle. Mogoeng, by contrast, was a prosecutor in Bophuthatswana. By casting the debate in a racial mode, Mogoeng obviates the question of individual choice and reduces it to one about race. Perhaps in warning about the danger of apartheid returning, he was indeed correct.”

    http://www.bdlive.co.za/opinion/columnists/2013/07/23/transformation-debate-inhabits-parallel-universes

    Indeed. A very muted response. Perhaps what we can confirm from this is what we know already : this specie called the “White liberal” has no spinal chord.

  • Zoo Keeper

    I would say Mogoeng’s comments deserve more constitutional scrutiny than a stupid decision by the FPB.

    That decision has been appealed and should be overturned.

    How do we deal with our CJ though?

    This is a man who is supposed to be dedicated to the Constitution first and last.

    Do these comments go far enough to open impeachment proceedings?

  • John Roberts

    “.. instead than by the law that they are bound by.”

    Actually, it’s instead OF by the law…

    With 11 official languages a law Professor has difficulty with the major language. Makes you wonder how much else he doesn’t know.

  • Gwebecimele

    These days bored people camp outside hospitals for death and birth.
    Unlike Froome, JR will allways be ours(African)

  • Ozoneblue

    Gwebecimele
    July 23, 2013 at 12:08 pm

    I thought this would make you happy. more evidence to reinforce your hatred of the White male.

    http://www.thehindu.com/sport/cricket/hansie-cronje-named-in-matchfixing-case/article4941073.ece

    Not to mention this PdV retweet from the archetypal self-loathing White liberal.

    “Herman Lategan @HermLategan
    The birth of a male baby born into royal and financial privilege leaves me cold.
    Retweeted by Pierre de Vos”

  • spoiler

    And to listen to the FPB’s spokesman Prince Whatsit trying to justify the banning was tragic. Then again, as Jahmil countered – they have done him a huge favour – he could not have asked for better publicity for his movie…

  • spoiler

    I agree with Zook – Mogoeng’s utterances are a far bigger concern.

  • Brett Nortje – The ANC are backward! Completely out of place in the 21st Century….

    The problem is as always that this is South Africa. There is always such shiiit incoming it is difficult to prioritise. You have the story of the Mandela daughters who cannot pay their own legal fees despite all the get-rich schemes, and then you have this:

    http://www.dailymaverick.co.za/article/2013-07-12-as-farlam-returns-the-truth-about-the-massacre-remains-a-distant-perhaps-impossible-goal/

    “Yet one of the sub-plots revealed by the high court hearing is that Mpofu actually has access to funding. Significant funding.

    Mpofu had applied to the Raith Foundation for funding and was granted it. Until now, he and his team have accessed over two million rand in fees and disbursements (expenses to you and me). The foundation (which declined to be interviewed, referring us to the court papers) had apparently made between four-and-a-half to six million rand available to the survivors’ lawyers in tranches. For the second sum to be released, they wanted to have the previously funding properly accounted for, and a report on the way forward.

    This has not, it seems, been forthcoming.

    According to Mpofu’s own submission to the high court, he received funding for October, November and December. This was for two advocates and four attorneys. The sum that he received was R2.6 million. So Mpofu was not getting anywhere near the top money being paid out there, but he and his team were certainly getting handsomely recompensed. There is another two million from the foundation waiting for Mpofu and his team, if they can get their accounting and reporting in order.

    This is not to say that Mpofu and team have been careless in their accounting or spent the funding in unsuitable ways. It may well be that they find the technical requirements of the Raith Foundation stringent or even onerous. In court on Thursday, Mpofu hinted that there were some ‘disagreements’ and that there ‘were issues of principle’ to be clarified. Of course, in accepting the funding, the lawyers were bound to the terms of that agreement, and should be able to fulfil their funder’s requirements to release the rest of the money”

    http://www.dailymaverick.co.za/article/2013-07-18-the-truth-endangered-miners-representatives-withdraw-from-farlam-commission/

    http://www.dailymaverick.co.za/article/2013-07-19-the-issue-of-marikana-commission-funding-could-go-to-constitutional-court/

  • Brett Nortje – The ANC are backward! Completely out of place in the 21st Century….

    Anyone seen an overprivileged jetsetter? I want my comment moderated quickly!

  • Dmwangi

    So now that PdV has defended an allegedly child pornographic film, and perhaps beastiality (see previous post), I’m wondering what exactly are the contours of a “healthy attitude towards sexual pleasure.”

    Suppose one is born with a “biological predisposition” to necrophilia. Would he concede this is psychologically unhealthy? Certainly, as an avowed atheist, and implicit dualist, who believes the body is merely a tool to be used by the consciously desiring aspect of the self, he cannot claim that using a non-living piece of flesh is “harming anyone else” — any more than using any other lifeless instrument for self-pleasure would be. So let’s suppose that a market developed in which, prior to death, people signed over their bodies to be used after death for others’ sexual satiation, in exchange for a certain sum up front. On his view, are there ANY legitimate legal grounds for proscribing such an arrangement between “consenting adults?” Could such behaviour be considered an “unhealthy attitude towards sexual pleasure?”

    I’d genuinely like to know as it seems PdV defines “a healthy attitude towards sexual pleasure” as one that embraces EVERY sexual impulse and an “unhealthy attitude” as one that limits ANY sexual desire.

  • Mikhail Dworkin Fassbinder

    Dmwangi is right. Our pre-colonial traditions expressly forbade:

    (a) child porn;

    (b) necrophlia;

    (c) beastiality;

    (d) bestiality;

    (e) garden-variety beastliness.

    Thanks.

  • Zoo Keeper

    Dmwangi

    Great question.

    At what point does “healthy” become “unhealthy”?

    Who decides what is “healthy” and what is “unhealthy”?

    This does not include lack of consent – paedophilia, sexual assault and rape obviously.

    But of course some like it rough, and consent to assault, maybe with whips. But that is “healthy” because of the aspect of consent.

    So hypothetically, if it is consent that decides “healthy” as against “unhealthy”, then signing consent form for a necrophiliac must then be … “healthy”?

    There is consent after all…?

  • Dmwangi

    OB:

    ‘”The birth of a male baby born into royal and financial privilege leaves me cold.
    Retweeted by Pierre de Vos”’

    People like Madonna and Jolie buying our children to be used as humanitarian “accessories,” I find chilling.

  • PK13

    Why all the vitriol, guys? Look at the argument, which is in this case more valid than anything else. The logical extreme of the FPB’s decision is that many films and TV series then accordingly constitute child pornography, such as the The Blue Lagoon,” “Weeds” and “Shameless” yet these are not banned, but are seen as either popular classics or are high-revenue award-winning programming. Heck, even Mad Men has a couple of scenes in episodes which wouldn’t then pass the muster of this test.

  • Dmwangi

    PK13:

    “The logical extreme of the FPB’s decision is that many films and TV series then accordingly constitute child pornography, such as the The Blue Lagoon,” “Weeds” and “Shameless” yet these are not banned, but are seen as either popular classics or are high-revenue award-winning programming.”

    1) Popular and award-winning does not preclude something from being pornographic.

    2) On what basis are you making this comparison? How do we know the depictions in question are similar, mutatis mutandis, to those in the “classics” you name? PdV has not even seen the film. Yet he is absolutely certain –certain– it could not be pornographic. The fact that he can make this judgement and write an entire blog about it without even viewing the content of the film tells us much more about his ideological blinders than whether it is, in fact, pornographic. He’s committed to sexual liberationism in the extreme and therefore feels no compunction to deal with these matters on the merits.

    Zoo:

    What of an instance in which someone filmed not a simulation but an actual sexual act or rape of a child? Clearly that person and those involved could be criminally prosecuted. But suppose they uploaded it to the web and some of PdV’s artistic mates of a postmodern bent, who had no part in the actual offence, used the imagery to create a “shock” piece they allege is for purely aesthetic purposes –to offend cultural assumptions, make a social statement about rape, etc. And let’s further assume for argument’s sake that the artist was able to obtain the consent of the victim (and/or his or her guardian(s)) — who is from a disadvantaged background– ex post sexual act/rape, for artistic use, in exchange for some pecuniary concern. Does this too comport with our vaunted constitutional precedent? Aside from whether the artist could be liable for initially viewing/possessing the contraband images, could the subsequent work of an allegedly aesthetic nature be censored?

    I am, of course, a retrograde reactionary when it comes to sexual matters but it strikes me that “consent” — even if one concedes ppl have perfect information, always make rational choices, are under equal power relations, etc.– as an abstract principle cannot be universally applied without serious ethical problems.

  • Lisbeth

    >Dmwangi

    “I am, of course, a retrograde reactionary …”

    Isn’t that the same as a counter-revolutionary?

  • Dmwangi

    Unfortunately, this is no fantastical hypothetical. There have already been several cases of child sex acts recorded by mobile phone and uploaded online. It is only a matter of time before some enterprising/capitalist “artist” starts telling us about the “beauty” of “immature” sexuality.

    ” it would be difficult if not impossible for a reasonable person (judging objectively) to conclude that the main purpose of the movie was to “stimulate sexual arousal” in the target audience (those who hang out at film festivals);”

    These are exactly the kind of people attempting to sexualise our children. Ever heard of Roman Polanski?????

  • Mikhail Dworkin Fassbinder

    @ Lisbeth

    Even as we speak, the ROYAL BABY is leaving the hospital for Kensington Palace. And yet Pierre has not said one word about the new arrival. Why not? After all, Britain is a CONSTITUTIONAL monarchy!

  • Ozoneblue

    Ja. It this is all very amusing.

    “The point to be emphasized though is that a deliberate attempt is being made to delegitimize the JSC and through some scare tactics intimidate or mock the JSC into recommending without proper reflection, certain white men and at times certain women, for reasons best known to those who are campaigning for them.

    This illegitimate neo-political campaign to have certain people appointed must be strongly opposed. We must all use all available avenues to expose this retrogressive campaign and the danger it poses to nation-building and reconciliation. But be warned, that engagement is not for the faint-hearted.

    The defence of genuine transformation, as was the case during apartheid, inevitably attracts mockery, being labelled conservative and a tool of the Executive. Be ready for untold attacks from all sorts of people projecting themselves as fiercely independent, impartial, progressive analysts or highly respected professional commentators. Be ready to be trashed by a well coordinated network of individuals and entities often pretending to be working in isolation from each other.

    Remember, during apartheid whenever you were a puppet or the powers that-be thought you had the potential to be cajoled into becoming one, you were addressed as ‘’n goeie man” or “good man”. Nowadays those who seem to have arrogated to themselves the role of being masters of our destinies would label or crown you “highly or well respected” or “progressive”.””

  • Maggs Naidu – I fathered the royal baby

    Indeed I did.

  • Dmwangi

    OB:

    Did CJ say anything untrue? This very blog makes this ring truer and truer with each passing day:

    “The defence of genuine transformation, as was the case during apartheid, inevitably attracts mockery, being labelled conservative and a tool of the Executive. Be ready for untold attacks from all sorts of people projecting themselves as fiercely independent, impartial, progressive analysts or highly respected professional commentators. Be ready to be trashed by a well coordinated network of individuals and entities often pretending to be working in isolation from each other.

    Remember, during apartheid whenever you were a puppet or the powers that-be thought you had the potential to be cajoled into becoming one, you were addressed as ‘’n goeie man” or “good man”. Nowadays those who seem to have arrogated to themselves the role of being masters of our destinies would label or crown you “highly or well respected” or “progressive”.””’

  • Ozoneblue

    Dmwangi
    July 23, 2013 at 23:45 pm

    I’m not sure about the paranoid conspiracy mongering bits but this part is very true – and ironic in deed. Given that Mogoeng is now “the good man” parroting draconian racial engineering ideology of the NDR and the ANC.

    “Remember, during apartheid whenever you were a puppet or the powers that-be thought you had the potential to be cajoled into becoming one, you were addressed as ‘’n goeie man” or “good man”.”

    Much like organs of government and state officials almost unquestioningly parroted the “separate development” ideology of the Nats under Apartheid.

  • Peter

    I am sure that the Prof is beavering away at a piece about Mogoeng CJ, or, probably not? Better to write about movies and animals than address the Mogoeng speech?

  • Mikhail Dworkin Fassbinder

    @ Peter

    “I am sure that the Prof is beavering away at a piece about Mogoeng CJ,”

    Don’t be too sure, Peter! I think it more likely that he is focussing on the constitutional implications of the ROYAL BABY. Did you know that the little prince is third in line to the throne, and that is thus the first time since 1880 that three generations have been alive at once?

    Thanks.

  • Ozoneblue

    Peter
    July 24, 2013 at 9:02 am

    LOL. I dont think so. There are certain things that our White liberals simply never discuss or that they continue to stubbornly ignore lest they can blame it on Whiteness and/or White males.

    Lets take for example PdVs beloved poster boy Julius Malema with our fascist African hero EFF sponsor Robert Mugabe. Basically referring to Lindiwe Zulu as a whore or talking about gays and lesbians as pigs and dogs. If this was done by any racist White like Steve Hofmeyer for example [for white leaders/politicians will never stoop so fucking low] all hell would break lose. I can guarantee you.

    “Mugabe also condemned SA for upholding gay rights. “We are unlike South Africa, which upholds gay rights. We will deal with them here. Gay rights are not human rights. I am despised in some parts of the world because I said gays and lesbians are worse than pigs and dogs because these animals know their mates. We cannot allow our children to be worse than wild animals,” he said.”

    http://www.news24.com/Africa/Zimbabwe/Zimbabweans-literally-running-SA-Mugabe-20130724

  • Zoo Keeper

    Dmwangi

    An actual scene of sex with a minor would be criminal. The fact is that the law restricts the ability of persons to legally give consent. Even if the child were paid, it would make no difference to the absence of legal consent.

    Therefore the child is being raped – statutory rape in other words.

    If the guardians were paid then they would be part of the crime and also liable for prosecution. Whether they are from a disadvantaged background or billionaires is meaningless in the inquiry.

    If someone came across the footage and instead of immediately reporting it to the police for investigation, decided to distribute it, that person would be committing a crime as well.

    If a person, who has full legal capacity consents to making a porno for payment, well that seems to be legal. Of course, a person selling a sex scene for a movie and person selling sex to a passing motorist are treated differently. No one is locking up porn stars, but prostitution is illegal – despite the consent aspect.

    Seems to me that the line is a difficult one to find when two careers, one on TV and one on the streets appear to be of an almost identical nature.

  • Gwebecimele
  • Maggs Naidu – The DA will bring back apartheid! (maggsnaidu@hotmail.com)

    Maggs Naidu – I fathered the royal baby
    July 23, 2013 at 23:26 pm

    Terence grant – I smell you!

  • Hoof_Hearted

    Peter
    July 24, 2013 at 9:02 am
    I am sure that the Prof is beavering away at a piece about Mogoeng CJ,

    Prof will be horrified that you think he would have anything to do with beaver

  • Gwebecimele

    OB

    Judging by utterances, in Zim it seems as if we already have a loser and a winner.

    Tell Mugabe that we can do land distribution better and we leave the rest to others to do it on our behalf.

    We can also send teachers and nurses if there is a need. In the past we helped UK, Australia, New Zealand and Middle East.

  • Mikhail Dworkin Fassbinder

    @ Gwebe

    “We can also send teachers and nurses if there is a need. In the past we helped UK, Australia, New Zealand and Middle East.”

    Gwebe is right. That is why I demand that SADTU consent to 1000 of the best teachers from the Eastern Cape being sent on 25 year contracts to Melbourne!

    Thanks.

  • Brett Nortje – The ANC are backward! Completely out of place in the 21st Century….

    No good asking De Vos, who has fled the scene. Not ‘moderated’ my comment yesterday at 15:47.

    But how do you judge the following video? Erotic or aesthetic?

    http://www.livestrong.com/original-videos/q6UX6UlR5Cs-perfect-form-chest-exercises-bust-bra-fat/

    I say any guy who is not immediately a fan is not even on the page where the words “having a healthy and unremarkable attitude towards sex” and “did not display a healthy attitude towards sexual pleasure” are written.

  • Maggs Naidu – The DA will bring back apartheid! (maggsnaidu@hotmail.com)

    Brett Nortje – The ANC are backward! Completely out of place in the 21st Century….
    July 24, 2013 at 15:08 pm

    Hey Brett,

    This is really ugly stuff.

    It must be BANNED.

    WDYSTT?

    Luckily this is an adults-only blog, especially given the graphic nature and uggghhh qualities of what you’re about to watch!

    http://www.youtube.com/watch?v=ulWXlAJQGlU

  • Dmwangi

    Zoo:

    You’ve misconstrued my hypothetical. I stipulated that all involved in the sexual act and initial dissemination and possession of child porn would be criminally liable.

    However, it is unclear that if someone –an “artist” — refashioned all or portions of this footage into an allegedly “aesthetic” nature, that any person subsequently possessing this “artwork” would be guilty of anything under the erotic/aesthetic paradigm.

    Perhaps I am incorrect about that. But I’d like you to explain why.

    The child, or guardian, would be “consenting” to have the minor’s image/likeness used in the “aesthetic” display — much as they would have to do for the child to participate in a documentary on SABC. Obviously, the child/guardian could in no way legally consent to the sexual assault. But I am failing to see why, under the precedent we’re discussing, they could not consent, after the fact, to having imagery of the assault used in an “artistic” work.

    Is there some legislation that precludes this?

  • Michael Osborne

    Dmwangi, to pick up on Pierre’s example, would you want Nabokov’s “Lolita” banned? What of renditions of the ceiling of the Sistine Chapel, with its nude chubby little angels?

    Or what of a law enforcement textbook containing graphic descriptions of child sexual abuse?

  • Dmwangi

    @MO:

    Of course not. And I likely would not have banned this particular film. But:

    1) How can I, or PdV, possibly make a pronouncement about whether its content constitutes pornography without even viewing it, and

    2) Do you see no relevant distinctions between my hypothetical and the examples you offer????

  • Maggs Naidu – The DA will bring back apartheid! (maggsnaidu@hotmail.com)

    Brett, OB and other defenders of the lost paradise – WDYSTT?

    It’s Time to Acknowledge White Privilege

    Catherine Wiley

    Assistant Professor of English, Temple University

    I was introduced to the concept of white privilege in 1984, when I was 19, in college. I was having lunch with my first love, a black man, in a diner in central Ohio. Some friends were with us, and we were waiting for them afterwards outside the diner on the sidewalk, and we were joking around about something. I went to hug him and he took a step back and said, “Not here,” his mood instantly altered from humorous to one too serious for outward expression. He explained later that he had rejected my attempt at affection because he was keenly aware of the history of the Klan in the area.

    I wasn’t. Because I didn’t have to be.

    http://www.huffingtonpost.com/catherine-wiley/white-privilege_b_3636281.html?utm_hp_ref=tw

  • Zulani

    Why is Film and Publications Board ignoring Constitutional Court judgment?
    The Title of this blog.
    WTF are you bla bla bla about?

  • Brett Nortje – The ANC are backward! Completely out of place in the 21st Century….

    Maggot, you’re pretty desperate if you have to dig up silly American English lecturers’ articles on white privilege when you’re basically perched on the front stoep of an overprivileged white jetsetter (while OBS is lucky if he gets to spend a day’s vacation at fokken Potch Dam!)

  • Maggs Naidu – The DA will bring back apartheid! (maggsnaidu@hotmail.com)

    Brett Nortje – The ANC are backward! Completely out of place in the 21st Century….
    July 24, 2013 at 19:49 pm

    Brett,

    Eish – you sound angry man. Sorry ne!

    Ok to make up, I’ll serenade you!

    http://www.youtube.com/watch?v=ulWXlAJQGlU

  • Brett Nortje – The ANC are backward! Completely out of place in the 21st Century….

    You can post youtube links till you’re blue in the face – I’m not opening them after you had the cheek the other day to post – without warning – an English person posing as an American opining on American freedoms.

  • Maggs Naidu – The DA will bring back apartheid! (maggsnaidu@hotmail.com)

    Brett Nortje – The ANC are backward! Completely out of place in the 21st Century….
    July 24, 2013 at 19:54 pm

    Sorry Brett, from the bottom of my heart!

    To make up for that mishap, here’s an “American opining on American freedoms”.

    http://www.youtube.com/watch?v=z_L7qoP17-w

  • Brett Nortje – The ANC are backward! Completely out of place in the 21st Century….

    I’ll take your word for it. Have you considered Zulani’s request that you stop posting irrelevant kak and explore the possibility of setting up a satelite blog of your own?

  • Brett Nortje – The ANC are backward! Completely out of place in the 21st Century….

    While you’re haunting youtube watch the video of G’Bibber.

  • Maggs Naidu – The DA will bring back apartheid! (maggsnaidu@hotmail.com)

    Post the link – here’s one for you!

    http://www.youtube.com/watch?v=VdypZg7U2Bc

  • Zulani

    @Brett Nortje
    July 24, 2013 at 20:06 pm

    http://www.youtube.com/watch?v=t2kKnzW4d8w

  • ozoneblue

    Zulani July 24, 2013 at 20:40 pm

    I think you should be carefull not to confuse ‘the left’ with the real left. The Hlowood type pussie left liberals are obsessesed with ‘identity politics’. Zizek is the one you should read to understand how that fake middle class ‘radicalism’ is in fact reactionary to the extreme.

  • Maggs Naidu – Ek is ‘n rampokker, struikrower, maaifoedie en skurk

    I are being learns some Afrikaans more so to conversation wif Pierre.

  • Paul Kearney

    Talk about shuffling deck chairs on the Titanic but I think PdeV dare not pen a criticism of Mogoeng (the ex Bop magistrate?). Baas Blade would smack his naughty little fingers. Hard.

  • Zoo Keeper

    Dmwangi

    Sorry about that, I’m just trying to find the balance between art and pornography as well. Maybe I took it down the wrong alley!

    MO’s reference to the art of the Renaissance is compelling.

    We have a problem, because Michaelangelo’s work, despite depicting nude children, is considered art, and highly respected art.

    Some might say the mere fact of depiction of nude children is pornography. But what happens when a parent takes a photo of his child running around the garden in the nude – like all kids do.

    So is it a context issue to determine porno vs legitimate expression.

    Does it all come down to the “I know it when I see it” type situation – a most vexed and subjective problem?

    Is the question then – is the purpose of the film to arouse sexual desire only, or is there another purpose such as art, making a point etc? So we move from fact of production to purpose of production?

    What do you think?

  • Michael Osborne

    @ Dmwangi

    You ask: “How can I, or PdV, possibly make a pronouncement about whether its content constitutes pornography without even viewing it”

    Dmwangi, you have a point here. PdV initially says the film was “wrongly banned.” Later, he says it was “almost certainly” misclassified. But we are all caught in a catch-22 situation. If by definition we cannot view the film at issue, how will we ever be in a position to critically evaluate the board’s decision? (A similar dilemma attends the U.S. government’s attempts to justify surveillance because of national security interests – where those interests themselves are deemed too sensitive to be disclosed; must citizens just trust that govt knows best?)

    Pierre did make the point that the board apparently watched only 29 minutes of the film. That would seem inconsistent with the De Reuck reference to the need to view “other parts” of a film, in order to allow it to consider the overall context.

    That being said, I have find parts of the De Reuck judgment problematic. The proposition that “where … the aesthetic element is predominant, the image will not constitute pornography” strikes me as incoherent. I have no idea what the term “aesthetic element” means here.

    The broader point is that judges are not art critics. It is not for the judiciary to determine that we are forbidden to view an image because it lacks “merit”. (Which, as Pierre never tires of pointing out, in a different debate, is a “contested category.”) Also, the notion that the fact that a film is shown to a film festival audience weighs in favour allowing it to be viewed strikes me as intolerably elitist. I would suspect that 99.5% of South Africans have never attended a film festival, and would have scant interest in doing so.

    You ask whether I “see no relevant distinctions between my hypothetical and the examples you offer.” I am not sure which examples you have in mind. But lets take the extreme case: explicit non-consensual sex between people who are clearly minors. That is readily classified as child pornography. The much more common instances – such as the non-explicit, simulated encounter as described in “Of Good Report”, present a much more difficult question.

  • Dmwangi

    @MO & Zoo:

    We largely agree. My point is that the aesthetic/erotic dichotomy is a kak judicial test because it does not enunciate enough probative indicia to render discrete categories. Rather it is based entirely on sentimentalism: if the judge thinks the aim is to arouse others (or perhaps if he is himself aroused) it’s porn. As a starting point, I would articulate more specific, objective criterion: e.g. perhaps a presumption that *visual* depictions of children engaging in acts of a sexual nature (defined as masturbation, intercourse, oral sex, stripping, etc.) is pornographic. (Note that nudity, such as the example of the Sistine chapel, or textbook or literary descriptions, do not fit such a description.) Perhaps other criteria such as length of time of the depiction (it does not take 5 mins of heated action to insert into a narrative that two ppl have engaged in sex) could also be useful.

    Art has survived –some might say flourished– for thousands of years and it’s not because artists have been allowed to create visual depictions of minors engaging in sex acts. It is difficult for me to envision what legitimate artistic purpose is furthered, that couldn’t otherwise be achieved, by allowing such imagery or such imagery in more muted form. But to the extent such a purpose might exist, the presumption could be rebutted.

    Moreover, I do not think it unreasonable to classify something as pornographic after viewing “only” 29 minutes, or a portion, of its entirety. If it was hardcore pornography, I doubt I would need much more than 2-3 mins to make that determination.

    “But lets take the extreme case: explicit non-consensual sex between people who are clearly minors.”

    I still do not understand how we can say this is true per se, given the precedent’s reasoning. Is it not possible someone –an extremely “creative” person– could make a “predominantly” aesthetic piece of artwork from the images of a criminal sexual encounter? If so, does this not illustrate the weakness of juridical reasoning?

  • Maggs Naidu – beer! (maggsnaidu@hotmail.com)

    Dmwangi
    July 25, 2013 at 16:25 pm

    Hey Dmwangi,

    Sorry ne – but …!

    Unbanned: Of Good Report wins appeal

    There were whoops and a round of spontaneous applause from film maker Jahmil Qubeka and film festival manager Peter Machen when the appeal committee of the Film and Publication Board (FPB) overturned the ruling that the film Of Good Report contains “child pornography” and is therefore unclassifiable and criminal.

    http://www.citypress.co.za/news/unbanned-of-good-report-wins-appeal/

  • Dmwangi

    Maggs:

    I am bringing together some Western radical feminists and Mugabe supporters for a course I’m holding at MP Holiday Inn entitled, “Pornography and Feral Pigs: the dangers posed by addictive consumption.” I do hope you, Lisbeth and your partner(s) will consider attending.

  • Maggs Naidu – beer! (maggsnaidu@hotmail.com)

    Dmwangi
    July 27, 2013 at 20:16 pm

    Dworky?

  • Maggs Naidu – beer! (maggsnaidu@hotmail.com)

    Dmwangi
    July 27, 2013 at 20:16 pm

    Dworky?

    “a course I’m holding at MP Holiday Inn”

  • Mikhail Dworkin Fassbinder

    @ Magus

    “the Film and Publication Board (FPB) overturned the ruling that the film Of Good Report contains “child pornography” and is therefore unclassifiable and criminal.”

    With respect, this it more evidence of the need to TRANSFORM our judiciary which, sadly, still harbours LIBERAL tendencies.

    Speaking of lack of TRANSFORMATION, Maggs, were you as disappointed as I to note that both President Zuma and the NPA were represented by WHITIST counsel (Kemp and Kennedy, respectively), in the Zumatapes application last week?

  • Maggs Naidu

    Mikhail Dworkin Fassbinder

    July 27, 2013 at 21:43 pm

    Dworky,

    Well Zuma is committed to helping poor WHITE people.

    As you know he celibrated Mandela’s long wait for freedom by giving WHITE people houses.

    So employing little known. rarely briefed WHITE advocates shows Zuma’s commitment to Economic Freedom in our lifetime for WHITE people!n

  • Dmwangi

    Maggs:

    Chew on this quote for awhile:

    “‘In short, the problem with pornography is not that it shows too much of the person, but that it shows far too little.”’

    – Karol Wojtyla

  • Maggs Naidu – Prof Motala knows what he is talking about! (maggsnaidu@hotmail.com)

    Dmwangi
    July 28, 2013 at 23:07 pm

    Hey Dm,

    “Chew on this quote for awhile:”

    Hmmm – ok.

    Here’s something for you to chew on!

    Some patients with amputations, a doctor says, were told by their handlers that their genitals would grow back

    http://www.news24.com/SouthAfrica/News/Initiates-told-penises-will-grow-back-20130728

  • Pingback: The UK porn block and the concept of obscenity | Evidence & Reason