Is Inxeba hardcore porn? We’ll know today

Should the award-winning Xhosa movie Inxeba be classified as hardcore pornography – and can that rating be legally justified?

That's the ruling that Pretoria High Court Judge Joseph Raulinga will make on Thursday morning‚ following a heated court battle between the film's creators‚ the Film and Publication Board's Appeal Tribunal and several cultural rights and freedom of expression organisations.

Inxeba depicts a sexual relationship between young men undergoing the Xhosa initiation ritual‚ and was greeted with angry and sometimes violent protests.

Counsel for the Congress of Traditional Leaders of South Africa (Contralesa) and the Man and Boy Foundation have stressed that the organisations' distress over the movie was not driven by homophobia‚ but rather concerns over the depiction of a process deemed sacred.

Certain groups responded to the film's February release with protest marches and threats of violence against cinema staff and cinema goers in Eastern Cape‚ leading to at least two cinemas cancelling screenings.

During argument on the case‚ Raulinga was at pains to stress that cultural issues‚ such as the initiation process‚ needed to be dealt with in a sensitive manner.

"In this country we have adopted certain cultures over our own instead of preserving our own. The culture located within this country must be observed as well. The people who practise it [the Xhosa initiation ritual] will be annoyed if these practices are taken out and shown to everybody because it is meant to be sacred‚" he said.

Earlier this year‚ the film's producers went to court to challenge a decision of the FPB's Appeal Tribunal to overturn the FPB's previous rating of Inxeba as 16LS and replace it with one of X18SNLVP – essentially classifying the film as hardcore pornography.

That classification would have meant that Inxeba could not be viewed in traditional movie cinemas‚ but only at adult stores. The pornographic rating was overturned by the High Court earlier this year‚ pending a court ruling on whether it was legally valid or not.

The film's creators argue that while sex is suggested three times during the movie‚ it is not explicitly depicted‚ and therefore classifying the movie as pornography is not appropriate.

Advocate Stephen Budlender‚ who represented the makers and distributors of Inxeba‚ argued: "When one thinks about pornography‚ one sees detailed scenes‚ one sees genitals and long sex scenes. This movie is not for erotic sensation. This film cannot be classified as pornography on any basis."

Budlender slammed the decision by the FPB Appeals Tribunal to classify Inxeba as pornography as procedurally unfair‚ and stressed that the Tribunal had not given the film's producers an opportunity to argue against such a rating.

"We have a situation where the Appeals Tribunal took a decision on a film produced by my clients‚ who have legal rights but were never given an opportunity to be heard."