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(Digital Audio Recording Transcriptions)/aj

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 13843-18

DATE:    2018-03-08

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between

INDIGENOUS FILM DISTRIBUTION(PTY) LTD AO          APPLICANT

and

FILM & PUBLICATION BOARD & ANOTHER                   RESPONDENT

JUDGMENT

TUCHTEN (J): This urgent application has its origin in the production of a filed called lnxeba - The Wound. The film served before the Film and Publication Board where it was given a certification classification which permitted the film to be shown in cinemas to persons of age 16 and older. The 5th - 10th respondents before me appealed against that decision to the Film and Publication Appeal Tribal.

The Film and Publication Appeal Tribal then reversed the decision of the Board and held in effect that the film could only be viewed in or through the medium of adult shops and could not be used in public cinemas. The present applicants who are responsible for the distribution of the film have brought the decision of the Tribunal before this court on review. And preparatory to the hearing of the review as such, on Tuesday this week (that is 5th February 2018) an urgent application was set down to suspend the decision of the Tribunal pending review.

10         A number of respondents were cited. I have referred to the 6^th -  10^th respondents. In addition to the statutory bodies that I have referred to, the Film and Publication Board and the Film and Publication Council were cited as Respondents. When the matter was called before me I was informed that the parties they represented had come to terms on the interim conduct of the matter. At that stage the 2^nd respondent, 3^rd respondent, 5^th and 6^th respondents as well as the applicants were represented.

There was no appearance for the other respondents. The parties in question had entered into an agreement which was subsequently made an order of court. The effect of the order was that the film could be viewed

20        pending the hearing of the review proper, by persons above the age of 18 and above, and more importantly at public cinemas. And there the matter for the time rested. I may say that I take judicial notice of the fact that the litigation occasioned wide public interest and was widely publicised, and I gave permission for filming to take place in court, and I personally am aware that many persons who seek to uphold, promote and observe indigenous culture in this country were present at the proceedings and took a lively interest in the outcome.

The present applicant (the applicant for intervention) is the National House of Traditional Leaders. It was not represented at the appeal hearing before the Tribunal, nor was it cited as a respondent in these proceedings. It seeks to intervene in the present proceedings, that is in the interim proceedings, and seeks in paragraph 3 of its notice of motion to set aside the order previously made, and does not deal with what should happen thereafter, except that it suggests that the decision of the Tribunal should

10        remain the operative decision in relation to the film until after the review application has been heard.

I may mention that the review has been set done by agreement with the Deputy Judge President for 28 March 2018. The applicant for intervention claims to represent Indigenous culture in this country through the chiefs, kings and headmen of these cultures, and points to the Act under which it is constituted, the National House of Traditional Leaders Act 22 of 2009, where under s 11 it is required to concern itself with the preservation of the culture and traditions of communities. The applicant for intervention and for setting aside the order I have mentioned, complains  that the order that I

20        have made will encroach upon and undermine the cultural heritage and traditions that have, from time immemorial, been deemed sacred by the communities that practise such customs.

I have the gravest doubts as to whether that factor by itself will constitute a ground for either intervention or for supporting the decision of the Tribunal, but I need not decide that. I shall assume in favour of the applicant for intervention that it legitimately brought these proceedings on the short notice that it has and that it does so in the genuine furtherance of what it regards as a legitimate interest. However it cannot be overlooked that the applicant for intervention has not served on any of the persons who functioned as respondents in the urgent proceedings before me. It served only on the Applicant, so rather ironically I consider that there are difficulties with the notion of audi alteram partem in that at least one of the respondents, namely the Film and Publication Board (3'd Respondent)) filed an affidavit in support of the Applicants application and generally its attack on the findings

10        of the Tribunal. The first point made by counsel for the applicant for intervention and I must say very eloquently and forcefully made, was that his client had not received audi.

His client, he said, ought to have been a respondent in the urgent proceedings and was not; and on that ground alone the urgent order ought to be set aside. I think that this argument overlooks that there is a distinction between those parties whom an applicant must cite as respondents, and those who additionally might assert and establish a right to be heard on the topic. If I had been moved earlier this week to allow the intervention of the Applicant for intervention, I might well have considered that its intervention

20        was permissible.

However that does not mean that the applicants were obliged to cite the applicant for intervention. The applicant for intervention is in no better position than for example a member of the communities whom the applicant for intervention represents, and who might be offended by what is contained in this film. Much of the debate this evening centred around whether or not there was artistic merits in the film. Because if there are artistic merits in the film, the findings of the Tribunal cannot stand.

There is much evidence that has been produced on behalf of the Applicants to show that the film is indeed of artistic merit It has received very great critical acclaim, but I think it is only fair to say that that critical claim probably comes from members of communities who are not members of Indigenous cultural communities in the sense that notion is being used by the applicant for intervention. It might be that when the case comes to be argued in due course, the applicant for intervention might establish a right to

10        be joined and might be able to establish that its cultural values ought on some basis to prevail, and influence the result of the review I doubt it, but it is possible.

Nevertheless at this stage and on that level, the applicant has established a very powerful case and against that, there is well nigh no material whatsoever on the basis of which I can conclude that the film is wholly without artistic merit There are furthermore undoubtedly in my view procedural shortcomings with the ruling of the Tribunal on the evidence that is before me at the moment The first and most egregious is that it does appear to be established that those parties (5^th -   10^th Respondents) who

20        served before the Tribunal as appellants, had no right of appeal and accordingly that the Tribunal itself was without jurisdiction to decide the appeal. In those circumstances I cannot see on the material that is before me, how any result other than the upholding of the review can follow.

There is a further difficulty and that related to the treatment that was accorded by the representatives of the applicants when they sought to enforce or exercise their rights of audience before the Tribunal. I very much doubt that on the material that is presently before me, it can be shown that the applicants were given a fair hearing by the Tribunal. Finally I have a discretion in relation to interdicts. The balance of convenience, it seems to me, is overwhelmingly in favour of the applicants and against the applicants for intervention. A number of features have been referred to by the Applicants in support of this regard. I shall mention, because of the lateness of the hour, only some of them.

             Firstly they have a right to have persons examine and appreciate,

10        critically or otherwise, the products of their artistic endeavours. Secondly the public has a right in general to see a publication of this nature, particularly one which has received acclaim. Each member of the public has a right to examine this film and consider whether or not he or she agrees with the views that have been expressed. Then there are the financial considerations. Those I regard as extremely important.

I take judicial notice of the fact that no film of any kind can be made without the expenditure of money, and that those responsible for the film's production legitimately expect to recoup some monies and even make a profit from the showing of the film. That must be done at the right time and in

20        the right manner. The applicants in good faith have attended to publicity in order to maximise the commercial benefit that they can achieve from the showing of this film, and I consider that any attempt to block their showing of the film, will cause them considerable financial prejudice.

There is the added problem of piracy of cinematic graphic productions, and I consider that they make the point properly, that if there is a delay under these circumstances in screening the film in cinemas as they have been given the right to do, this may well facilitate the efforts of pirates to take away from them their legitimate financial rewards of having produced the film. Finally I must point to the fact that this film has been in the public domain for some considerable time; indeed as far back as last year. But since 2nd February until 13th February the film was screened in 20 cinemas in this country.

There was no attempt during that period to seek an interdict; there was no attempt other than by the 6^th – 10^th  respondents to appeal the decision

10        of the Board, allowing the showing of the film in cinemas. All in all, I am not persuaded that I should exercise my discretion in favour of the Applicant for intervention to set aside the order I made earlier this week. As far as the application to join in is concerned to intervene, there I consider that the applicant for intervention might have (I express no final opinion on this) a right to intervene in the review proper.

But it does not at this late stage, whatever the reasons for its delay were, have the right to intervene in the interim proceedings. Those proceedings have come and gone. Finally there is the question of costs. I have considered anxiously whether the manner in which this application was

20        brought justifies an order for punitive costs. It was brought at a very late stage on reasons that seem to me to be less than substantial. The hearing before me began late in the evening of 3th March and has continued into the early hours of the morning of 9^th March.

Giving all factors appropriate consideration, I do not think that this is the kind of case where an order for attorney and client costs is justified. The order that I make is accordingly is that the application for intervention is dismissed with costs, including the costs consequent upon the employment of two counsel.

TUCHTEN j

JUDGE OF THE HIGH COURT

DATE:

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