Appeals tribunal rules Inxeba should keep rating given to pornography
The Film and Publications Appeal Tribunal has released its reasons for changing the rating of Inxeba (The Wound) to X18 — the same rating given to hardcore pornography.
The decision means that the film was withdrawn from cinemas and can now only be watched at designated adult premises.
The decision can be appealed against directly with the minister of communications or be taken to court.
Here is the full statement on the reasons the tribunal made the decision:
"It is trite law that the appeals tribunal takes its decision after considering both submissions from the parties to the appeal‚ i.e the appellant and the respondent.
In making its decision/ruling‚ the tribunal does so guided by the fundamental principle that says all classification decisions must consider context‚ impact and the release format of the material, to be precise section 32 of the guidelines direct as follows — when considering context‚ regard must be had to the following factors:
A. The expectation of the public in general and the target market of the material.
B. The theme of the material
C. The manner in which the issue is presented
D. The literary‚ artistic‚ dramatic or educational merit of the film.
E. The apparent intention of the filmmaker as reflected in its effect.
The movie Inxeba (The Wound) is a local production in IsiXhosa language set in a bush where the initiation of boys‚ teenagers takes place. One of the initiates turns out to be a homosexual. Two of the caregivers, Xolani and Vija‚ the head actors, are also seen to be practising homosexuality. They keep their relationship secret and begin to be worried by Kwanda’s interrogative posture towards Xolani‚ his caregiver.
He accuses Xolani of not being a man as he does not accept his homosexuality by keeping it a secret. Kwanda protests during the final stages of the initiation and refuses to declare himself a man‚ which is a compulsory process before the school session is closed. He finally finds them naked next to the waterfall after an apparent act of sexual intercourse.
In the film there are‚ in the collective view of the tribunal‚ explicit sexual scenes [having] a moderate impact‚ therefore harmful‚ distressing and pre-exposing the 16-year-old child (as classified by the respondent) to adult experiences.
The target market‚ which in our view is the 16-year-old, is not [reasonably] familiar with the practices 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 following classifiable elements were agreed to by [the] classification committee‚ i.e language which is frequent and moderate to story.
The violence is mild to moderate and fairly frequent. The nudity is low impact and infrequent. Sexual related activity inclusive of anal and oral sex were found to be mild-to-moderate impact and fairly frequent. The substance abuse is mild impact and infrequent.
This summarises the reasoning of the classification committee, and [we] are unanimous in that the themes are complex and nature.
The question is whether the classifiable elements are of low impact, and if so whether the 16LS classification was appropriate in the circumstances.
The tribunal was unanimous in that the classifiable elements were moderate to strong. Thus, if there is agreement on our part that the classifiable elements were of strong impact‚ it therefore follows that the tribunal has to consider in the circumstances what will be an appropriate classification.
In doing so‚ the tribunal has to consider the submission made by the parties‚ grounds of appeal‚ the heads of argument‚ the oral submissions‚ closing arguments as well as all applicable guidelines and the Act, which the tribunal derives its mandate from.
Having said that‚ we are of the view that the film is characterised by scenes of strong usage of strong language‚ insults‚ which include women and thereby degrading them in society. This further exposes women to societal violence such as rape, as initiates are encouraged to go taste their manhood on girls as they head back home [sic].
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 [is] 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.
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 … 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.
The following scenes could have increased tensions in society:
(i) Anal sex scene between Vija and Xolani, who are initiation nurses and perform the act at the initiation school‚ including oral sex.
(ii) The act of intercourse is performed by the same adults that the initiates are entrusted to by their parents and society at a venue regarded as sacred by the tradition.
(iii) The use of a single tool to circumcise all the initiates by the caregivers undermines the work that the government has/is doing in the initiation space by regulating healthy practices.
(iv) The deliberate omission of condom use by the caregivers during … heated intercourse has an adverse effect on the minor viewers. Children learn by imitating.
Considerations of the tribunal
The movie creators’ right to freedom of expression has an effect on the rights of the Xhosa Traditional group by implication
The Films and Publication Board Act 65 of 1996 as amended‚ chapter 4 section 18(3)b(ii) states that the film can be classified XX if it depicts conduct or an act which constitutes incitement of‚ encourages or promotes harmful behaviour.
Children of 16 years may know what is right and what is wrong, yet that does not exonerate them from imitation. It is also the responsibility of the FPB to protect them still from exposure to adult experience prematurely.
The children’s act defines a child as anyone under the age of 18‚ exposing them repeatedly to sex life‚ drug abuse and alcohol abuse perpetuates the degeneration of morality
Section 20 (3) of the Act‚ as amended‚ provides as follows " The appeal tribunal may refuse the appeal and confirm the decision in question‚ or allow the appeal‚ either or wholly or in part‚ and give such decision [as] the board should in its view have given‚ and amend the classification of the film‚ same or publication‚ specifying the section of this act upon which the classification is in term of its decision [based]‚ and may impose other conditions in respect of the distribution or exhibition of the film same or publication.
Section 36 4 (1) of the guidelines provides as follows:
It is the duty of this tribunal to consider and decide whether there are any competing rights in the film. The constitution of the Republic provides for the protection of cultural and linguistic rights. It further provides in terms of section 9‚ the right to equality. In applying these rights‚ the Constitution recognises the right to artistic‚ and creative abilities as well as freedom of expression. What is critical to note is that section 36 of the Constitution provides for limitation of rights.
The cumulative impact of the themes in the film are too strong and the sexual related activities do not justify a rating of 16LS. The classification that has been given is clearly inconsistent with our finding that the film should be classified X18.
In the circumstances the following order is hereby made.
The film Inxeba is assigned a classification X18
The film is removed from public circulation with immediate effect.