Indigenous Film Distribution (Pty) Ltd and Another v Film and Publication Appeal Tribunal and Others (3589/2018) [2018] ZAGPPHC 438; [2018] 3 All SA 783 (GP) (27 June 2018)

Indigenous Film Distribution (Pty) Ltd and Another v Film and Publication Appeal Tribunal and Others (3589/2018) [2018] ZAGPPHC 438; [2018] 3 All SA 783 (GP) (27 June 2018)

The Tribunal lacked jurisdiction to hear the appeal because the appellants did not have standing under section 20(1) of the Films and Publications Act. The Tribunal's procedure was unfair and did not comply with the audi alteram partem rule, as the applicants were not given adequate notice or opportunity to participate. The decision to classify the film as X18 was materially influenced by errors of law and failed to meet the statutory requirements. The balancing of freedom of expression and cultural rights must be done in accordance with the Constitution, but in this case, the Tribunal's process and jurisdiction were fatally flawed. The amici application was dismissed as their submissions...

Citation
[2018] ZAGPPHC 438
Parties
Applicant: Indigenous Film Distribution (Pty) Ltd; Applicant: Urucu Media (Pty) Ltd; Respondent: Film and Publication Appeal Tribunal; Respondent: Chairperson of the Film and Publication Appeal Tribunal N.O.; Respondent: Film and Publication Board; Respondent: Film and Publication Council; Respondent: Man and Body Foundation; Respondent: Congress of Traditional Leaders of South Africa; Respondent: South African Healers Association; Respondent: Ibutholesizwe Cultural Development; Respondent: Izinduna Zamakhosi; Respondent: Ubuhle Bengcule
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
27 June 2018
Case Number
3589/2018
Procedural Posture
Review Application / Final Judgment on Urgent Review and Amici Application
Outcome
The review application is granted; the Tribunal's decision is reviewed and set aside. The amici application is dismissed. Each party is to pay its own costs.
Judges
TJ Raulinga
Legal Topics
Film Classification, Freedom of Expression, Cultural Rights, Procedural Fairness, Locus Standi, Promotion of Administrative Justice Act
Administrative Law Constitutional Law Telecoms and Media Film Classification Freedom of Expression Cultural Rights Procedural Fairness Locus Standi +1 more

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Parties

Indigenous Film Distribution (Pty) Ltd

Applicant

Urucu Media (Pty) Ltd

Applicant

Film and Publication Appeal Tribunal

Respondent

Chairperson of the Film and Publication Appeal Tribunal N.O.

Respondent

Film and Publication Board

Respondent

Film and Publication Council

Respondent

Man and Body Foundation

Respondent

Congress of Traditional Leaders of South Africa

Respondent

South African Healers Association

Respondent

Ibutholesizwe Cultural Development

Respondent

Izinduna Zamakhosi

Respondent

Ubuhle Bengcule

Respondent

Procedural Posture

Review Application / Final Judgment on Urgent Review and Amici Application

Legal Issues

  1. 1 Whether the Film and Publication Appeal Tribunal had jurisdiction and whether the appellants had locus standi to appeal.
  2. 2 Whether the Tribunal's classification of the film as X18 was substantively and procedurally valid under the Films and Publications Act.
  3. 3 Whether the Tribunal's procedure complied with the audi alteram partem rule and PAJA.

Ratio Decidendi

The Tribunal lacked jurisdiction to hear the appeal because the appellants did not have standing under section 20(1) of the Films and Publications Act. The Tribunal's procedure was unfair and did not comply with the audi alteram partem rule, as the applicants were not given adequate notice or opportunity to participate. The decision to classify the film as X18 was materially influenced by errors of law and failed to meet the statutory requirements. The balancing of freedom of expression and cultural rights must be done in accordance with the Constitution, but in this case, the Tribunal's process and jurisdiction were fatally flawed. The amici application was dismissed as their submissions...

Court Disposition

The review application is granted; the Tribunal's decision is reviewed and set aside. The amici application is dismissed. Each party is to pay its own costs.

Orders

  • The amici application is dismissed.
  • The review application is granted.