The first thing the Film and Publication Board’s (FPB) manager for operations, Nthabiseng May, said on Wednesday at the panel discussion on the criteria for FPB classification at the Durban International Film Festival (Diff) was, "I am uncomfortable standing here among you."
And she had every right to be. Since the classification of the film Of Good Report as "child pornography", the FPB has – apart from some reasoned discussions in media – been under fire from most quarters.
At the panel discussion, board member Prince Ndamase was at pains to explain that he was on the side of the film industry, but that the classifiers acted legally.
"This is where the problem lies. It's with the Act [Films and Publications Act of 1996]. It's a matter of damned if you do, dammed if you don't," he said, and implied if the FPB hadn’t classified it, the board would have been in breach of its mandate. Sipho Risiba, the FPB's acting chief operations officer, said that the board assumed full responsibility for the refusal of classification, and he will defend the decision.
Under the Act, the board is required to stop watching a film the moment it discovers depictions of sex with someone under the age of 18. There is a discrepancy in the legal age of consent, which is 16.
What should, however, be relevant to the board is a judgement made in a similar case against it – which constitutional law expert Pierre De Vos referenced in a Daily Maverick article on the matter on Tuesday. "As the De Reuck judgment made clear, it is not possible to determine whether an image as a whole amounts to child pornography without regard to the context."
So, what would be the context in this case? That the FPB discovered after the depicted sexual act – much like the horrified school teacher character at that moment in the film – the female protagonist was under the age of 18?
This makes one wonder about the qualifications of the classifiers themselves, and whether they were aware of the "aesthetic element", as outlined by former chief justice Pius Langa, in the judgment: "Where, however, the aesthetic element is predominant, the image will not constitute pornography.”
Ndamase, however, said: "We agree with artistic merit, but it is not legally a basis for exemption." Meanwhile, and without giving any examples, Risiba pointed out that there have been further amendments since the ruling.
Who are the people who classified Of Good Report? We are not allowed to know. The full list of all classifiers is available through the FPB offices, but as this case is in appeal, the FPB cannot reveal who classified it. What we do know is that the decision to classify was unanimous, and that there were four, rather than the standard three, classifiers. May, the FPB’s operations manager, did point out that all classifiers were qualified in the fields of film, psychology and respective disciplines.
The FPB stated it was trying to get the appeals process started as quickly as possible, and that it would take place this weekend. The appeals board is an independent board from the FPB, and is legally allowed to watch the entire film in order to make its decision.
According to Ndamase, the Act is due for review in the next year and consultations with the film industry have to take place to prevent another Of Good Report incident. Ndamase also said last year's Diff FPB panel was poorly attended by members of the industry.
Previous successful appeals against classifications (that is classification, not refusal of classification) have included films or trailers for Mama Jack, Snow White and the Huntsman, The Dictator and Narnia.
In the judgment overturning of the classification of Narnia, the appeals board said: "This present case is another instance of examiners applying the wrong guidelines."