Although raising concern about the need to balance the right to freedom of expression with cultural rights and his insistence that the filmmakers’ rights to freedom of expression could not override the rights to dignity of Xhosa people, Gauteng High Court (Pretoria) Judge Joseph Raulinga has ruled that the appeal tribunal process for Inxeba (The Wound) was legally flawed, and should be reviewed and set aside.

A News24 report notes this means that the film's hardcore pornography classification is overturned.

The film, which depicts a sexual relationship between Xhosa initiates, has been the subject of a legal battle between the Film and Publication Board's Appeal Tribunal, the film's producers and the National House of Traditional Leaders, since its release last year.

The drama started in July 2017, when the board gave the film a 16SLN rating, indicating it contained strong language, sex and nudity. The producers then approached the court after the appeal tribunal overturned this ruling, and gave it a rating of X18SNLVP.

This essentially classified the film as hard core pornography.

Full News24 report

However, Raulinga stressed that the film violated the rights to dignity of Xhosa people, notes a TimesLIVE report.

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’. He added: ‘The film included language which was degrading to Xhosa women and further exposes women to societal violence such as rape. It contains harmful scenes which 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.'

However, he slammed the Appeals Tribunal for failing to give Inxeba’s producers the chance to argue against the film’s reclassification‚ saying that 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.

Full TimesLIVE report