A LEGAL ENQUIRY INTO THE PERPLEXING DECISION OF THE FILM & PUBLICATION BOARD APPEAL TRIBUNAL IN RE-CLASSIFYING INXEBA (THE WOUND) AS AN X18 FILM

I. INTRODUCTION

It was a mere twenty years ago that the Honourable Justice Sachs, in her concurring judgment in National Coalition for Gay and Lesbian Equality v The Minister of Justice, described gay South Africans as a 'distinct though invisible section of the community that [had] been treated not only with disrespect [and] condescension but with disapproval and revulsion.' In this landmark decision, South Africa’s Constitutional Court empowered its homosexual citizens to remove their invisibility cloaks and step into their inherent rights to dignity, equality and freedom to express themselves. Yet, fast-forward to the present year (2018) and the expression of South African homosexuality in traditionally cultural contexts continues to receive homophobic attention. It is on this premise that this paper shall initiate an enquiry into the legality revolving around the recent decision of the Film and Publication Board Appeal Tribunal (hereinafter referred to as "the Tribunal") in re-classifying Inxeba (The Wound) as an X18 film by considering this decision in light of the statutory framework governing the Tribunal.

II. THE DECISION OF THE APPEAL TRIBUNAL

The Films and Publications Act No.65 of 1996 (hereinafter referred to as the "the Act") establishes the Tribunal in terms of s3(1)(c). In terms of s3(2) of the Act, the Tribunal is to operate independently from the Film and Publication Board (hereinafter referred to as "the Board") and function without any bias - this obligation on the Tribunal is a theme that will be returned to later in this paper. At the outset, it is noted that at the time of writing, Inxeba is the subject matter of litigation wherein the decision of the Tribunal is prayed to be set aside on various grounds. It is clear that in terms of s20(1) of the Act, the Tribunal had no jurisdiction to hear an appeal not brought by the Minister of Communications and/or the producers or distributors of Inxeba (which ought to have constituted its primary consideration). However, in the event that the North Gauteng High Court finds that the Tribunal was authorised to hear the Appeal, the following analysis of the Tribunals decision shall follow.

That said, in reasoning its decision to re-classify Inxeba as an X18 film, the Tribunal held that it was of the opinion that:

'[T]he various scenes can be accurately defined as inappropriate for minors in the age category of 16 years [and that the] key question is whether the child aged 16 would find the scenes tolerable, or whether [such scenes] are capable of causing harm or distress.'

As shall be argued more fully below, the key questions that the Tribunal (being a creature of statute) ought to have asked stem wholly from the statutory framework that simultaneously empowers it, and limits it, as opposed to its narrow border-line fictional application of the Act.

III. THE STATUTORY FRAMEWORK INFORMING THE TRIBUNALS DECISION

(a) Preliminary Observations:

Before embarking on an analysis of the Tribunals decision in the context of the relevant statutory framework, the preliminary assertion of this paper (despite being purely technical) is that the Act, as read with the prescribed Classification Guidelines (hereinafter referred to as "the Guidelines"), is contradictory in regard to whether or not the Tribunal is in fact authorised to consider the Guidelines when acting in terms of its mandate under s20(3). On this note, the Guidelines in and of themselves specifically limit its application to 'industry, the general public and the Classification Committees of the [Board]' which is of particular importance in light of the fact that the Tribunal and the board are independent entities. Moreover, Guideline 1 solely refers to Classifiers as the users of the Guidelines whilst the term Tribunal is nowhere to be found therein, whether expressly or implicitly. Conversely, the Act in s31(3)(a) states that the Board is to publish Guidelines which the Board and Tribunal shall apply. Accordingly, it is argued that whilst decisions of the Tribunal must continue to be informed by the Guidelines, the relationship between the Act and the Guidelines is ambivalent and requires distillation.

That being said, the purpose of the Act is three-fold: (i) to inform consumer choice; (ii) to prevent the exposure of children to age-inappropriate material and (iii) to band child pornography. Similarly, the Guidelines are intended to:

'[P]rovide consumer advise to enable individuals to make informed viewing, reading and gaming choices for themselves as well as for children in their care, and [to] protect children from exposure to disturbing and harmful materials and from premature exposure to adult experiences.'

(b) The Section 18(3)(c) Enquiry:

With the foundation set, it is pertinent to emphasise that the re-classification of Inxeba as an X18 film is primarily constrained to comply with the provisions contained in s18(3)(c) of the Act, as read with the Guidelines. The s18(3)(c) enquiry is two-prong, requiring that the film contain 'explicit sexual conduct' and that it should not be of 'scientific, dramatic or artistic merit.' If either of these components are absent, a film cannot be regarded as X18. Beginning with the former requirement (which informs the first key question that the Tribunal ought to have asked), the Act defines explicit sexual conduct as meaning 'graphic and detailed visual presentations or descriptions' of any sexual conduct as contemplated by the Act. Despite the fact that Inxeba contains only three visual and/or implied scenes of subtle sexual conduct (anal sex, oral sex and sexual contact), they are not overt or detailed, nor do they contain any visuals of genitals. The definition of explicit sexual conduct in the Act is thus not satisfied and the first-prong of the inquiry need not go any further.

However, for purposes of amplification, the Guidelines confer the following definitions of explicit and pornography upon the Boards Classification Committee and in certain cases, the Tribunal, when coming to a classification decision:

(i) '[E]xplicit means - (a) fully and clearly expressed or demonstrated, forthright and unreserved in expression leaving nothing merely implied; or (b) in realistic detail.'

(ii) '[P]ornography means explicit description or exhibition of sexual subjects or activity in publications, films and computer games, in a manner, judged contextually, intended to stimulate erotic rather than aesthetic feelings in a reasonable person.'

Whilst the Tribunal expressly alleged that Inxeba contains explicit sexual conduct, it did not once refer to Inxeba as a pornographic film. This omission (rightly so) must be considered in light of the view of our Courts which hold that 'by and large, most mainstream pornography contains explicit sexual conduct, which is classifiable as X18.' Based on the above, it is obviously clear that Inxeba does not contain explicit sexual conduct, does not advocate or promote same and judged contextually, is not intended to illicit erotic feelings in the viewer. By application, Inxeba does not constitute pornography and cannot satisfy the requirements of s18(3)(c)(i) or the aforesaid definitions as set out in the Guidelines (save for ‘sexual conduct’). A proper application of this prong of the enquiry would have led to the immediate abandonment of an X18 rating.

Nevertheless, in regard to the latter requirement of the s18(3)(c) enquiry, the second key question the Tribunal ought to have asked is whether it was entitled to subjectively determine whether or not Inxeba was a film of dramatic or artistic merit, as it did. To answer this question, cognisance ought to have been taken of the first purpose of the Act, which is to inform consumer choice, not dictate same. This role required the Tribunal to act with objectivity, taking into account the collective reception of the film, both locally and internationally — as opposed to magnifying the grievances and culturally biased perceptions of the Appellants and the broader Xhosa community being represented before the Tribunal. On this note, Inxeba has made strides in both the local South African and International film industries having been nominated for several awards and shortlisted for the 2018 Oscar for ‘Best Foreign Language Film’. However, unlike in the case of 50 Shades of Grey where the Board turned to international ratings of the film when justifying its classification of 16 LSNV, in the present case the Tribunal refrained from considering the international reception of Inxeba when ruling that the film lacked artistic and/or dramatic merit, thus leaving its opinion unsubstantiated. This omission by the Tribunal may be argued to constitute a conscious decision to align itself with the viewpoints of the aggrieved Appellants before it.

Additionally, it is imperative to highlight that neither the Act nor the Guidelines define the terms ‘dramatic’ or ‘artistic’, and for good reason as doing so would invite wide-scale limitations on the Constitutional right to freedom of expression. To solidify this point, the Honourable Justice Skweyiya in the seminal case of Print Media SA v Minister of Home Affairs & Another, held that:

'any expression, which is not excluded from protection under the Constitution, benefits from the preserve of the right' and that by virtue thereof, '[sexual] expression contemplated by section 16(2)(a) [of the Act] is protected by the [Constitutional] right to freedom of expression.' 

The threshold for dramatic or artistic merit is thus extremely wide and the Board in its submission to the Tribunal was justified in arguing that all that is required to meet this threshold is a bone fide story line. This is not to say that all forms of sexual expression ought to be condoned as it is accepted that a 'balancing of the scales' is required (which in the writers opinion is indirectly provided for in the s18(3)(c) enquiry). However, it is argued that the dramatic art conveyed by Inxeba is of a sufficiently high threshold and therefore the second prong of the s18(3)(c) test has not been fulfilled.

(c) The Guidelines Consideration:

At this juncture, it is argued that on an application of s18(3)(c)(i) and (ii), Inxeba cannot lawfully be classified as an X18 film and that assigning a ‘restricted distribution’ category to Inxeba was unjust. Suitably, the third key question that the Tribunal ought to have asked (despite its incorrect application of the Act) is whether or not its re-classification was correctly informed by the guiding principles and classifiable elements, as prescribed by the Guidelines.

The first requisite assessment is that of context, which in the case of Inxeba is highly complex. In considering the Guidelines, the Tribunal briefly mentioned the target audience as being 16 year olds whilst overlooking four other considerations prescribed by Guideline 3(2) (a-e). Most importantly, in addition to dismissing the artistic and dramatic merit of the film, the Tribunal ignored the 'apparent intention of the film maker', the manner in which the issues therein were presented, any educational benefit and the expectation of the public in general. It seems as if the Tribunal intentionally avoided the need for broader societal discussions on homosexuality and adolescence which ought to extend to traditional cultural circles. Viewed holistically, Inxeba initiates important paradigm shifts in its viewers which were undeniably intended by its producers. Contextually, Inxeba is a well constructed, dramatic, emotionally charged and perception-shifting film.

The second assessment is that of impact. From inception, the Tribunal misconstrued this assessment when it stated that 'the question is whether the classifiable elements are of low impact.' In this regard, guideline 13(3) makes it clear that low impact classifiable elements are regarded as suitable for children from the age category of 10 years old and above. Initially, the Classification Committee imparted a classification of 16LS on Inxeba as it contained classifiable elements ranging from ‘low’ to ‘moderate’ impact levels. Before the Tribunal however, the classifiable elements were regarded as having a ‘moderate’ to ‘strong’ impact, whilst simultaneously asserting that there was no bone fide story line therein. The issue herein is that Guidelines 3(d) and (e) provide for films having a ‘moderate’ or ‘strong’ impact as containing classifiable elements that form part of a bone fide storyline. Films of this nature are also generally associated with a rating of 16 and/or 18. In considering the Tribunal’s final decision to classify Inxeba as an X18 film, Guideline 9(3) provides that X18 (restricted distribution) films must contain classifiable elements that have an ‘extreme’ impact. Thus, on the Tribunals own murky application of the impact assessment, Inxeba could not have received an X18 rating and ought to have received a maximum rating of 18. The fact that the Tribunal has mixed and mashed the Guidelines is improper and unacceptable.

The third and last guiding assessment is that of release format. In this regard, the Tribunal refrained from considering the release format of the film in South Africa (cinema) and by virtue thereof, ignored the fact that there was no ability to replay scenes, engage with unknown third parties, or utilise 3D technology. Despite being a far simpler assessment then those mentioned above, the Tribunal once again neglected the Guidelines for the benefit of mending the rating of Inxeba to fit with its own subjective opinion.

Finally, the Tribunal failed to consider all of the relevant classifiable elements which in the writers view, provided for internal mechanisms to protect the rights and interests of traditional Xhosa viewers who may consider the film’s portrayal of Ulwaluko as inaccurate or disrespectful. On this note, Guideline 4(2)(g) provides for the classifiable element of ‘prejudice’ (P) which:

'warns of scenes or language that [are] biased or prejudiced with regard to race, ethnicity, gender, religion, sexual orientation or other group-identifiable characteristics.' 

When the Tribunal held that the 'uproar [of the Appellants and the broader Xhosa community] cannot be ignored as [it considered] what an appropriate classification is,', it failed to contemplate utilising the prejudice identifier to remedy these concerns and provide important consumer advice. Instead, the Tribunal viewed the uproar as reason to increase the rating of Inxeba and ensure it became out of reach. This was another error ab initio in that the Tribunal is not a superior court and was simply not authorised to consider merits beyond those prescribed in the Act and its ancillary legislation.

IV. ANALYSIS OF THE TRIBUNALS DECISION

(a) Inconsistencies With Prior Decisions:

The first analysis of the Tribunals decision is that it is inconsistent with the Boards’ prior decisions in similar cases. Beyond 50 Shades of Grey, during the course of 2017 Moonlight film showcased in South African cinemas which like Inxeba, also contained homosexual intimate scenes including oral sex and sexual contact of similar strength to Inxeba. A perusal of the the Boards’ ratings for January 2017 uncover that Moonlight surprisingly received a classification of 13 DLPSV. In addition, Call Me By Your Name film aired in February 2018 and received a classification rating of 16 DLNS, whilst containing scenes of oral sex, implied anal sex and sexual contact. In the Boards’ own words, 'the themes in [Call Me By Your Name] [were] aimed at a more mature audience with relevance to older teenagers in the sense of homosexuality' and that '[t]he themes are of an entertainment value to older teenagers who are still trying to discover their sexual identities.' It is questionable as to why the Tribunal departed from the above mentioned baselines set by the Boards’ Classification Committee and why it did not consider the possible value that Inxeba may have offered to homosexual South African teenagers, particularly those in traditionally cultural settings.

(b) Bias and Incompetence:

The second and last analysis relates to the above mentioned selectiveness, manipulation and misinterpretation relating to the Act and the Guidelines, whether or not same was negligent or intentional. This conduct may be found by the North Gauteng High Court to constitute bias towards the aggrieved Appellants which would be in direct contravention of the Act. Moreover, it is unfathomable how the Tribunal (in this instance consisting partially of professional legal minds) could misinterpret the Act and its Guidelines. Accordingly, it is recommended that the Minister of Home Affairs, in terms of s9(1) and (2) of the Act, form an investigative tribunal for the purpose of determining whether or not the Tribunal members whom unanimously re-classified Inxeba, should be removed on the basis of incompetence and/or potential misconduct — both being grounds for removal in terms of the Act.

V. CONCLUSION

It is clear that Inxeba was written, directed and performed to deliver socio-cultural messages that impress far beyond mere sexual intercourse between men. In summation, the decision by the Tribunal is not predicated on any legal grounds and did not form its conclusions in accordance with the Act, nor the Guidelines. With respect, the Tribunal is conflicted and smeared in its reasoning and accordingly, it is contended that the re-classification of Inxeba to X18 is unjustified and should be overturned by the North Gauteng High Court. This paper has highlighted several important questions that the Tribunal ought to have asked itself in the case of Inxeba (which should be noted by the Tribunal for future consideration of sensitive material). Whilst art has consistently had the power to alter socio-cultural perceptions, the expression thereof has historically been censored. Censorship is a mark of parochialism and should not be tolerated in an open, democratic society that which is South Africa.