Inxeba movie being classified pornography overturned by High Count on procedural grounds
Award-winning movie Inxeba’s reclassification as pornography has been overturned by the High Court in Pretoria‚ on the grounds that it was procedurally unfair and unlawful.
However, Judge Joseph Raulinga has stressed that Inxeba (The Wound)‚ which depicts a homosexual relationship between two men at an initiation school‚ violated the rights to dignity of Xhosa people. Furthermore‚ he said‚ "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 that was degrading to Xhosa women and further exposes women to societal violence, such as rape. It contains harmful scenes that could cause tensions within the Xhosa community and even within the broader African community. By implication, it has an effect on the rights of the Xhosa traditional group‚" he said.
Throughout his judgment‚ Raulinga stressed that the Inxeba filmmakers’ rights to freedom of expression could not override the rights to dignity of Xhosa people.
"This application concerns the balancing of two parallel equations ... the right to cultural rights and the right to freedom of expression‚ and the need to balance the right to freedom of expression with cultural rights. The ritual of initiation and circumcision is central to the Xhosa people‚ to their very existence and identity. The practice … is a right of passage to manhood and fatherhood.
"Initiation or circumcision is strongly believed to be sacred‚ not only by the amaXhosa‚ but by the majority of African people in SA‚ and elsewhere in other African countries. Sexual intercourse is a taboo subject in the context of initiation‚ which should not even be spoken about‚ let alone practised. It contradicts the idea of ritual purity‚ which is the cornerstone of circumcision."
The judge stressed that this taboo was in relation to any form of sexual contact‚ whether it was heterosexual or homosexual.
Despite the judge’s belief that the movie’s content could be found to be harmful — if cultural rights were considered — he said that the process followed by the Film and Publications Board Appeals Tribunal in reclassifying the film was unlawful and procedurally unfair.
He slammed the tribunal for failing to give Inxeba’s producers the chance to argue against the film’s reclassification‚ saying they "were given no proper opportunity to participate in the decision and no proper opportunity to influence the outcome of the decision".
Furthermore‚ he said‚ the traditional leaders and cultural rights organisations who had turned to the appeals tribunal to reclassify the film had no legal standing to do so.