Oupa Makhalemele and Laurie Less
The Films and Publications Board (FPB) regulates the production, exhibition and distribution of films, video games and some publications, as mandated in the Films and Publications Act of 1996. Whilst executing this mandate the board found itself in the middle of a media storm late in 2017. At issue was the film Inxeba: The Wound.
The film, set in a Xhosa male rite of passage known in isiXhosa as ulwaluko, is centred around two main characters involved in a homosexual relationship, using the site of the initiation school as their annual tryst. The FPB had given the film a rating of 16 with Sex, Language and Violence as the classifiable elements. An outcry from sections of society, and a complaint laid with the Appeals Tribunal, an autonomous body set up to give film producers recourse when unhappy with the FPB ratings, led to the Tribunal overturning the FPB rating, giving the film a X18 rating, effectively preventing it from wide cinema distribution. This put the FPB on a collision course with the film producers and, more importantly, groups advocating for LGBTQI+ communities.
The film producers felt that the reclassification encroached on the constitutionally enshrined right to artistic expression. Alternatively, those speaking on behalf of the practitioners of the Xhosa tradition, including the House of Traditional Leaders, felt strongly that the film had encroached on sacred ground, exposing to the outside world what is held sacred and secret exclusively shared among those directly partaking in ulwaluko. In the end the matter was settled in court, which ruled that the FPB classification of 16SLV should be retained.
What does all this mean for the FPB? As with all pieces of legislation in the Republic, the Films and Publications Act of 1996 is subject to constitutional muster. The Act itself seeks to strengthen the enjoyment of the rights enshrined in the Constitution, including the right to freedom of expression (with consideration to the limits thereto stipulated in the Bill of Rights) and to artistic expression. There are other rights too that equally warrant observance, including the right to religious and cultural practices as well as the right to human dignity. Where citizens feel these rights are violated, a case made by complainants in the Inxeba saga, they are entitled to recourse. The FPB must balance these rights at all times in executing its mandate.
South Africans in general should be commended for their tolerance. Some religions take strong exception to public ridicule. The case of Charlie Hebdo in France and the fallout after they depicted the Prophet Mohammad in their publication comes to mind. Although opponents of the film Inxeba had made threats of violence, forcing cinemas to halt scheduled screening of the film and offering refunds to ticket holders, no violence was experienced. The psychological trauma experienced by Nakane Toure, the lead actor in the film, should however be noted as it raises the bigger issue of homophobia, especially when mixed with the injury felt by proponents of the Xhosa tradition and their supporters.
So, how does the FPB classify?
Classifiers make use of the Board’s Classification Guidelines, which are based on empirical research and are tested on a regular basis for relevance and resonance with the South African public’s morals and values. This is done through surveys, testing FPB’s decisions and how they converge with societal values and norms. The guidelines seek to minimise subjectivity in classifying films and computer games. This subjectivity is the baggage classifiers bring to the table (race, class, religion) when doing their work, and is likely to seep through the process – hence the need for guidelines as well as quality assurance.
The guidelines are clear when it comes to classifying content set in a traditional context. Nudity for instance is not, according to the FPB guidelines, to be treated in a sexualised way when it is depicted in a traditional context. Section 5. 2(f) states clearly that: “nudity, in natural, non-sexual contexts, such as breast-feeding and bona fide traditions, is not considered in the allocation of age restrictions, but must be indicated if it has a mild, moderate, strong or very strong impact.” Thus, the guidelines empower classifiers to reach a reasonable decision when it comes to content in a traditional context, where cultural practices are concerned.
But there is a gap in the current classification guidelines. It does not prescribe how they deal with culturally sensitive content in the media space. By defining culturally sensitive content the intention is to adequately provide guidance to consumers on the content they intend to consume. So, the FPB is exploring how to expand the use of Blasphemy “B” in our consumer advisories to include cultural sensitivity; alternatively to create a whole new classification category. This should not just be viewed through a religious lens but should include anything that may offend a particular belief system.
There are two trains of thought: the FPB includes it under blasphemy “B” and educates consumers about this or they develop a standalone classifiable element. Over and above these classifiable elements used to rate content the FPB issues consumer advisories on gender-based violence (GBV), culturally offensive material and sexual violence. A key question for the FPB is to explore with consumers the difference between gender based violence and sexual violence.
FPB on the road
The FPB has been doing roadshows around the country, consulting with members of the public and stakeholders on the review of its current Classification Guidelines. Key constituencies such as traditional leaders, cultural experts, the LGBTQI+ community and academics will be consulted. These consultations will create a platform to stimulate dialogue about the very DNA which makes us uniquely South African and dictates who we are as a society, the values we hold dear, especially respect for each other’s dignity balanced with the right to observe cultural and religious practices of our choice.