Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
27 February 2018

The censoring of the movie Inxeba is an embarrassing legal fiasco animated by homophobia

Last week the Appeal Tribunal of the Film and Publication Board (FPB) finally published its reasons for reclassified the movie Inxeba (The Wound) as X18. An X18 classification means that the movie was found to be hardcore pornography and may only be shown in licenced premises where other pornography is shown or sold. Previously the movie was classified as not being suitable to be viewed by persons under the age of 16. The distributors have rightly launched an urgent application to have the decision reviewed and set aside by a court because the decision is clearly not based on any valid legal considerations.

An embarrassing legal fiasco animated by bias and homophobia; as if a first-year drama student had attempted to write a paper for publication in a journal on nuclear physics. An incompetent and incoherent mishmash of words in search of an argument; a procedural calamity. It is not difficult to mock the unintelligible decision by the FPB Appeal Tribunal to classify Inxeba (The Wound) as hardcore pornography.

But let me rather take a deep breath and take a step back. Let me examine the reasons provided by the Appeal Tribunal to try and establish whether the decision makes any legal sense.

To do so, it was necessary to study the Film And Publications Act (and its guidelines) as well as the founding affidavit of the distributors who lodged an urgent review of the decision. I also watched the movie before it was banished from cinemas.

Inxeba is a sensitive exploration of toxic masculinity and repressed same-sex love, set against the backdrop of Ulwaluko, an initiation rite into manhood practised by the amaXhosa. (I consciously refrain from engaging in any of the debates about the depiction of Ulwaluko in the film, focusing exclusively on the decision of the Appeal Tribunal to banish the film from cinemas.)

The first substantive problem with the decision of the Appeal Tribunal (there were many procedural irregularities which I do not have space to highlight here) is that the minimum legal requirements required to have a film classified as X18 were not present. No rational person could possibly have believed that these requirements were present and that the Film and Publications Act in fact authorised the classification of Inxeba as hardcore pornography.

Section 18(3)(c) of the Film and Publications Act provides that a film can be classified as X18 if:

it contains explicit sexual conduct, unless, judged within context, the film or game is… a bona fide documentary or is of scientific, dramatic or artistic merit, in which event the film or game shall be classified with reference to the relevant guidelines relating to the protection of children from exposure to disturbing, harmful or age-inappropriate materials.

The Appeal Tribunal does not refer to section 18(3)(c) in the reasons it provides for its decision. It does refer to section 36(4)(1) of the Guidelines adopted to assist classifiers to implement the Act. However, the section quoted in the Tribunal’s document does not appear in section 36(4)(1) of the Guidelines as claimed by the Tribunal. As far as I can tell the quoted passage is invented. At best, it contains incorrectly summarised aspects of section 1 of the Guidelines.

But if one reads between the lines and fills in the gaps to reconstruct the garbled reasoning of the Tribunal, I would guess that the Appeal Tribunal may have had section 18(3)(c) in mind when it made its decision to classify Inxeba as hardcore pornography. The problem is that to do so, it had to ignore both the facts and the law.

The Appeal Tribunal first had to get around the fact that section 18(3(c) does not allow the classification of a film as X18 if the film has “dramatic or artistic merit”. If the film has “dramatic or artistic merit” it cannot be classified as hardcore pornography (although it can be given an ordinary age restriction). The Tribunal made the following finding in this regard:

The actions in the film are real and the characters are real. In the Respondent Heads of argument, the film is regarded as fiction which is in simple English means imaginary, invented or untrue. In another contradictory statement the Respondent states that When the FPB talks about the artistic merit of the film, it is about a bona fide story being told through film. The Tribunal collectively did not find any scientific, educational and artistic value throughout the film.

To summarise: The Appeal Tribunal found that a film telling a fictional story with fictional (invented) characters in fact depicted real events with real people and for that reason did not have any dramatic or artistic merit. It is a bit like finding that Simba is a real character and that The Lion King depicts real events because there happen to be lions in Kruger National Park.

But the finding is also a bit strange given the fact that Inxeba made the long list of 9 movies considered for the best “foreign language” Oscar. So, the film was considered one of the 9 best movies made in a language other than English in 2017. It has also won 20 awards at various film festivals around the world. No rational decision-maker could possibly have concluded that the movie lacked any dramatic or artistic merit.

But even if, for argument’s sake, you agreed with the bizarre finding that a highly acclaimed movie lacked any dramatic or artistic merit, you would only be able to classify a movie as X18 if it contained depictions of “explicit sexual conduct”. The Film and Publications Act defines “explicit sexual conduct” as graphic and detailed visual presentations or descriptions of sexual conduct.

Graphic and detailed depictions of sex is what one finds in hardcore pornography of all kinds. Such depictions of sex are the kind in which nothing is left to the imagination: men with hard-ons, sexual penetration of all kinds, and all the performative sounds familiar to anyone who has ever watched pornography.

There are no such scenes in Inxeba. Sex (between two men) is subtly suggested, but never explicitly shown. There is not even a glimpse of anyone’s genitals. Many sex scenes in movies and series shown on South African television are more explicit. When the decision by the Appeal Tribunal is reviewed and set aside by a court and Inxeba is again shown in mainstream cinemas, anyone going to watch the movie in the hope of being sexually titillated is going to be rather disappointed.

But to banish the movie from mainstream cinemas the Appeal Tribunal had to find that the movie contained “explicit sexual conduct”. It did so in the following passage:

In the film there are, in the collective view of the Tribunal, explicit sexual scenes Have a moderate impact, therefore harmful, distressing and pre-exposing the 16 year old child (as classified by the respondent) to adult experiences.

It is not easy to tease some meaning from this passage as it is internally contradictory and fails to engage at all with the definition of “explicit sexual conduct” prescribed by the Act. From what I can gather the reasoning is as follows: It would be harmful and distressing for 16 year olds to see subtle and non-explicit depictions of sex between two men, which means that the subtle and non-explicit depictions of sex in the movie must be classified as explicit sexual scenes. This view is bolstered by a reading of the subsequent paragraph of the Tribunal opinion:

The target market, which in our view is the 16years old is not reasonable familiar with the practises of initiation schools as described by the appellants. We are persuaded in that pre-exposure to such acts of sexual conduct is harmful and disturbing to this age group.

The relatively subtle homophobia of this passage, which suggests that there is something abnormal and scary about depictions of same-sex intimacy and that 16-year olds would be harmed by being exposed to such scenes (there is no suggestion that they would be harmed by scenes of sexual intimacy between men and women) is shockingly amplified by the following passage:

In our considered assessments of all the facts in this appeal, the various scenes can be accurately defined as inappropriate for minors in the age category of 16 years. The key question is whether the child aged 16 would find the scenes tolerable, or whether this are capable of causing harm or distress. According to developmental theorists, the 16 year old has cognitive comprehension of the classifiable elements as well as understanding of what is right and wrong. However, this does not necessarily translate to moral behaviour; when repeatedly exposed to acts of low moral standards he may show the propensity to engage in morally unacceptable, antisocial behaviour through vicarious learning and imitative behaviour as reflected in the film. Developmentally, the 16 year old is in a very fragile and vulnerable adolescent stage predisposing him to negative imitative behaviour.

To summarise: sexual intimacy between men is morally reprehensible. While 16-year olds might know that such behaviour is wrong, they may not be able to imitate it and may themselves have sex with members of their own sex. In any case, they would be traumatised by seeing sexual intimacy between men on screen, so the movie must, for all intents and purposes, be banned. Of course, the assumption that same-sex intimacy is morally wrong is homophobic. It is in direct conflict with the Constitutional Court jurisprudence on sexual orientation discrimination, notably this passage from National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others:

homosexual erotic activity must be treated on an equal basis with heterosexual, in other words, that the same-sex quality of the conduct must not be a consideration in determining where and how the law should intervene…. What becomes normal in an open society, then, is not an imposed and standardised form of [heterosexual] behaviour that refuses to acknowledge difference, but the acceptance of the principle of difference itself, which accepts the variability of human behaviour.

There are many other odd aspects of the reasons provided by the Appeal Tribunal which reveal the homophobia of its authors. For example, as part of its reasons for imposing an X18 classification, the Tribunal specifically invokes section 18(3)(b)(ii) of the Act which deals with XX classifications (a more severe classification that X18) to justify its decision. It does so to suggest that the film incites or promotes “harmful behaviour”, once again invoking the need to protect 16-year olds from exposure to “adult experiences”, by which one assumes intimate sexual experiences between men.

Reading the reasons provided by the Appeal Tribunal one is left with the distinct impression that it first decided to ban the film from commercial cinemas and only then invented the reasons to justify this decision afterwards. I would be shocked if a court did not review and set aside this decision.

2015 Constitutionally Speaking | website created by Idea in a Forest