Film and Publications Board on Classification of Yizo Yizo

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
28 March 2001
FILM AND PUBLICATIONS BOARD ON CLASSIFICATION OF YIZO YIZO

Chairperson: Mr Mokoena

Relevant Document:
Comments by Film and Publications Board to Portfolio Committee on 'Yizo Yizo' (see Appendix)

SUMMARY
The Committee was briefed by representatives of the Film and Publications Board (FPB) on how the law stands in respect to alleged overly-explicit scenes in the television series Yizo Yizo. The FPB does not have jurisdiction over what is aired on television and is therefore not accountable but was able to clarify the legal situation.

The meeting was overshadowed by heckling and accusations that the DP's comments were an attempt to gain political mileage. In particular, members felt that Yizo Yizo creates the impression that black people behave like animals. They also felt that the show is contradictory; although it carries a PG classification its aim is to educate children. Some members said that the bad behaviour Yizo Yizo portrays may encourage mimicking from young people.

MINUTES
The Chief Executive Officer of the Film and Publications Board (FPB), Ms Nana Makaula, addressed the Committee. She said scenes from the television programme Yizo Yizo she was about to show were the ones that had generated the most controversy. The scenes shown portrayed a man being sodomised by an inmate in prison as well as an intimate scene between a schoolboy and a woman.

After the screening, Ms Makaula said that although the FPB is responsible for the classification of all film in SA, television programmes are not classified. There are only certain categories of films that broadcasters are not allowed to screen.

She commented she was tempted to say the FPB has nothing to do with television. However, in the past the FPB has not been comfortable with the standards of film material aired on television. She said that whether the screens are small or big, the issues are the same.

The CEO said the FPB is developing guidelines for broadcasters as a result of feedback they have received from the public about the content of television items. The FPB feels Yizo Yizo should carry a classification in order to be broadcast.

Advocate Chetty, the FPB's in-house legal advisor, briefed the Committee on the legalities surrounding classification of the show. (See Appendix for document)

In summary, the points highlighted by Advocate Chetty were that television programmes are not covered by the Film and Publication Act unless they fall under Schedule 6. This Schedule prohibits scenes containing child pornography, explicit violent sexual conduct, bestiality, explicit sexual conduct that degrades a person and which constitutes incitement to cause harm or the explicit infliction of extreme violence or the explicit effects of extreme violence which constitutes incitement to cause harm. Schedule 6 applies unless the film falls under the exemption for films of a scientific or documentary nature of Schedule 9. In the case of child pornography, however, there are no exceptions.

Adv Chetty said the contentious issue in Yizo Yizo is whether the young people depicted engaging in sexual intercourse are under eighteen or are portrayed as being under eighteen; if so, it would be an offence under Schedule 6 to broadcast the show. He stressed that, in his opinion, if a character wears a school uniform, it suggests she or he is under eighteen.

Discussion
Ms. Smuts (DP) addressed her first question to the members of the Portfolio Committee. She said that she is puzzled that the FPB had been called by the Committee because broadcasting has its own channels. She compared calling the FPB to address the Committee to the old South Africa where politicians "called the shots". She said if MPs felt strongly about Yizo Yizo, they should have lodged a complaint through the relevant mechanisms.

Ms. Smuts said the comment by the CEO that guidelines for TV and film should be the same worried her as the big screen has an aspect of choice, whereas TV is an 'assaultive medium'. She therefore feels that standards for public broadcasting should be more stringent.

A member of the ANC called a point of order and said that as the first question had been directed to the Committee members, they should be allowed to answer. The Chair granted permission.

The ANC member said it is unfortunate that Ms Smuts called this issue irrelevant. She said it is the right of the Committee to call on the Board. She said if Ms Smuts does not want to participate, she does not have to. She added that the members here are not only politicians, but also parents. She and her fellow members on 'this side of the house' had never had exposure in their communities to the things that Ms Smuts had.

An ANC member said there is a debate that cannot be suppressed as people have a right to debate. Another member of the ANC said the issue is a clash of cultures; if the public questions something, it must be brought back to Parliament.

Another ANC member suggested, amid much murmuring and muttering from both sides of the house, that Ms Smuts should leave as the discussion centres on African people and African culture.

Mr Mpontshane (IFP) alleged that Ms Smuts likened the gathering to a shebeen in a comment to her colleague, causing uproar in the house. Ms Smuts stood up and said that the atmosphere has become so intense that she can be misconstrued as saying 'shebeen' when in fact she said 'censorship'.

An ANC member said Ms. Smuts is likening the action of the Committee to Apartheid. She said that during Apartheid, African people fought for freedom and the right to express themselves and raise their children in the manner that they wanted. She said that the aim is not censorship; instead, African people are still trying to recover the dignity that has been lost. She said that Ms. Smuts would not understand the issues surrounding Yizo Yizo as they are not part of her culture. She said events similar to those portrayed in Yizo Yizo had happened to her, so she should not have to worry about guarding the same things from her children.

The Chair called for an end to this discussion and asked for the next question to be directed to the FPB.

An ANC member asked Adv Chetty if Yizo Yizo would have been accepted if it had gone through the Board.

Prince Zulu (IFP) said it is a pity Yizo Yizo is outside the Board's control as the programme is an assault on African people. He asked why it is only black people depicted in what he termed ugly scenes.

An ANC member said that if, as the SABC says, the programme is an educational drama, are they implying that these sorts of things happen at schools?

An ANC member said the male character is not necessarily under the age of eighteen just because he is in school uniform; five or ten out of a hundred children in schools are over age. He said it could therefore be argued that the student depicted is over eighteen. He also said a recent Human Rights Watch report had reported terrible details of the ordeals faced by some young women in schools. He found the report similar to the content of Yizo Yizo. He asked, then, if Yizo Yizo is considered too strong, what is the best method to bring people's attention to what is happening in South African schools.

Mr Kaloko (ANC) said it is a problem that the FPB cannot answer the Committee's questions. He said it is not clear what the target group of the programme is as many young children are still awake in the townships at 20h30. If the film is aimed at such young children it is too harsh. He said that it is acknowledged that such things happen, but there are other ways of portraying them.

Ms Ncengwane (ANC) said that Yizo Yizo does remind her of Apartheid. In those days, she said, African people were subjected to American movies that showed blacks as uncivilised murderers. She asked Adv Chetty how he would classify the murder scene as well as the scenes where a girl is raped. She added that the show has only carried a Parental Gidance classification in the last two weeks. She questioned the logic of calling the programme 'educational' when parents had to make sure their children could not watch it.

Ms Buthelezi (ANC) said she wonders whether the Board is aware that many children in the townships are left alone and have no parents around to guide them in watching such a programme. She said Yizo Yizo is politically motivated as it shows that black children live like animals.

An ANC member said a programme such as 'Soul City' has the respect of South Africans and also succeeds in being educational and entertaining. She said Yizo Yizo has only succeeded in getting South Africans talking about the controversial aspects of the programme and not the real issues. She said that the rights of a few people who favour the show should not override the majority of people who do not. She asked why people should be made to feel uncomfortable in their own homes. She added that the sex scene involving the two males in prison shows one man in pain afterwards. She said that we should not be teaching kids that sex is bad.

Ms Bengu (ANC) said it is unfortunate that the meeting should have been turned into a platform for political rhetoric by Ms Smuts. It is not only Yizo Yizo that creates awareness of the plight of young people in schools; there have been conferences on the impact of violence on children. She said the problem with Yizo Yizo is that it depicts the behavioural problems of black children as if these were a virus peculiar to blacks. She asserted that rape was introduced to township schools in 1976 when soldiers were deployed in the schools. She said the findings of the Goldstone Commission in 1996 were that if children are exposed to violence, they will behave in a violent manner. This finding is echoed in similar reports all over the world. She asked how we can be expected to solve the problem of violence by showing violence on television.

An ANC member said students of elementary psychology are taught never to show a wrong when teaching a child. She questioned why those responsible are not aware of this and, if they are, why do they show wrong things on television.

Ms Makaula responded to the questions and comments of the Committee. She said the presence of the FPB at this meeting is not an overstepping of jurisdiction. They realised when the current Board took office that its work would overlap with other authorities such as the Press Union and the IBA. She said it is their duty to consult the relevant bodies when something is brought to their attention. The aim of the FPB today is to make the Committee aware of the law.

In response to Ms Smuts' questioning of the same standards for the big and small screen, Ms Makaula said adopting the same standards would be useful to avoid confusion. A television show rated 13 should correspond with a film at the cinema rated 13.

On the question of whether the Board would have accepted the material portrayed in Yizo Yizo, Ms Makaula said that there is no quick answer to this as it is committees who deliberate and decide on the suitability of material. She added, however, that it does look like guidelines have not been applied in this case. Adv Chetty said, personally, he would have given both scenes in question an XX classification if he had been a member of an examining committee.

Ms Makaula said she is not in a position to answer questions of negative enforcement of stereotypes.

Adv Chetty reminded the Committee that the Board is obliged to respect the Act passed by Parliament, including the honourary members present. The Board is under the constraint of the Films and Publications Act and the only category that can be banned is child pornography. Ms Makaula said this law, like all laws, cannot cover every eventuality.

The Chair gave Committee members another opportunity to ask questions.

Mr Mpontshane (IFP) said Yizo Yizo is not unlike Salman Rushdie's novel, The Satanic Verses, in that it has the capacity to offend so many people. He added that the anger of people over Yizo Yizo is not unjustified.

Mr Grobler said Ms Smuts, in describing mechanisms of inquiry, was not espousing political rhetoric. He said he appreciates that the FBP had come to address that Committee but stressed the importance of having the appropriate people to do so.

An ANC member said the SABC's mandate is to inform, educate and entertain. As the national broadcaster, the SABC has a responsibility to the public. The SABC makes more money the more viewers they attract and it is therefore in their interests to attract publicity. He told the committee they will have an opportunity to voice their concerns over the ICASA code of conduct when they hold their local content hearings from the 8 - 17 May.

Ms Makaula, the CEO of the Board, said all points made in this discussion have been relevant and deserve to be addressed. She said, however, the SABC is attempting to highlight important issues such as the Aids pandemic and promoting measures such as the use of condoms. It is difficult for her as an individual to know what the Board would have decided. She added she intentionally avoided commenting on many of the questions because of the question of jurisdiction of the FPB. She did not want to appear that she was making judgements on other bodies when it was not in her jurisdiction to do so.

Prince Zulu (IFP) thanked Adv Chetty and Ms Makaula for an enlightening discussion.

The Chair adjourned the meeting.

APPENDIX
COMMENTS : PORTFOLIO COMMITTEE ON "YIZO YIZO"
WEDNESDAY 28 MARCH

1 The Task Group on Film and Publication Control (December 1994) concluded that "..television should not fall under the Film and Publication Act".  It would appear that the Task Group was convinced, mainly by SABC, that ".internal controls, internal checks and their
acceptance of the industry-initiated, independent Broadcasting Complaints Commission of South Africa (BCCSA) make further control by a structure under a new Film and Publication Act totally unnecessary".  This view was supported by M-Net and the National Association of
Broadcasters.  The Independent Broadcasting Committee, on the other hand, was of the view that the Independent Broadcasting Act should not regulate content.  However, because the Task Group was under pressure to conclude its work as quickly as possible, it did not give the IBA enough time to reach a final decision. The issue of whether or not there should be only one authority to regulate content was, therefore, not conclusively determined.

2 The current position, in so far as TV is concerned, is that the Films and Publications Act does not apply to TV broadcasters, apart from the section 26(4) prohibition on the broadcasting of films classified and gazetted  XX by the Board and on the broadcasting of
films which, though not classified, would fall under Schedules 6 or 10, and the section 29(2) offence of broadcasting films which amount to propaganda for war, incites to imminent violence or advocates hatred based on race, ethnicity, gender or religion and which
constitutes incitement to cause harm.

3 However, although broadcasters are not regulated by the Films and Publications Act, the Executive Committee is concerned that the South African public may be confused by the application of different standards, with respect to levels of tolerance, to what is,
essentially, the same thing - i.e. images.  There is a marked difference between the guidelines established in the Schedules to the Films and Publications Act and the Independent Broadcasting Act. The substance and language of the guidelines are different!  In order to provide some sort of solution, the Executive Committee has established
a cooperative relationship with broadcasters in an effort to persuade broadcasters to use, substantially, the same guidelines and information system as that used by the Board.  Whether or not this arrangement is either an appropriate solution or is even working to
achieve its intended objective is a matter of opinion.  The view of the Board remains that the South African public should enjoy some measure of certainty in what constitutes potentially disturbing and harmful materials for children.  There should be a common standard of
generally-accepted community level of tolerance for all films or images.  How this is to be achieved should be a matter for discussions by all the relevant stakeholders.

4 With respect to Yizo Yizo, the Board is unable to comment on whether or not the classification guidelines developed by the Board were used in determining appropriate programming restrictions.  It would seem that, since in terms of section 26(4) of the FPAct, broadcasters may not broadcast any film which falls within Schedule 6, the provisions
of Schedule 6 should have been considered by SABC 1 to establish whether or not the film falls outside this Schedule.  The following scenes fall within Schedule 6 :

- Child pornography (defined as any image, real or simulated, depicting a person who is, or is shown as being, under 18 years engaged in sexual conduct. "Sexual conduct" includes sexual intercourse)
- Explicit violent sexual conduct ·
- Bestiality ·
- Explicit sexual conduct which degrades a person and which constitutes incitement to cause harm, or ·
- The explicit infliction of extreme violence or the explicit effects of extreme violence which constitutes incitement to cause harm.

4.1 Schedule 6 applies unless the film falls within the exemption provisions of Schedule 9 - i.e. the film is of a bona fide scientific, documentary, dramatic or except in the case of child pornography, artistic nature. 

4.2 The question of whether or not a determination for the purpose of Schedule 9 is solely within the jurisdiction of the Board has not been addressed.  It would seem that, since the FPAct is implemented by the Board, such a determination should be the prerogative of the Board. This, however, is a matter of opinion.

5 If the character(s) in the episode in question did engage in sexual conduct, as defined, and were, or depicted as being, under the age of 18 years, the film (or that episode) would be regarded as child pornography.  Falling within Schedule 6, it would be covered by section 26(4) unless exempted as falling within Schedule 9.

5.1 Yizo Yizo is, in the words of SABC 1, "educational drama" - the story of ".an ordinary school overcoming extraordinary obstacles..(it) celebrates the courage and determination of one school which overcomes formidable obstacles to teaching and learning." In launching the second series, Minister of Education Kader Asmal said that the series "generated unprecedented public debate about schools, ranging from problems relating to violence and corruption to leadership styles and the need for parental and community involvement in schooling. 'I am pleased to note that research indicates that Yizo Yizo 1 contributed to breaking a cycle of ignorance and denial among parents and that it provided a critical platform for black South Africans to have their daily life experiences reflected and addressed'."

5.2 Establishing that Yizo Yizo is "educational drama" is the first step in considering whether or not it would come within the provisions of Schedule 9 and therefore exempt from the provisions of section 26(4).  The next step is to establish whether or not it is bona fide "dramatic film".  The term bona fide may be interpreted differently for different purposes.  In the opinion of the Board, the proper interpretation of the term, for the purpose of exemption, would be that the film was produced in good faith and in compliance with the law relating to child pornography. 

5.3 Child pornography is totally prohibited and the circumstances under which it would be "allowed" exhibition must be extremely circumscribed.  It must serve a very specific purpose.  "Public interest", for instance, may be considered too wide to qualify as a specific purpose.  The possession, as opposed to the creation or production, of child pornography for purposes of medical research or for purposes of investigation and prosecution, for instance, would fall within the exemption provisions of Schedule 9. The creation or production of child pornography for "dramatic" purposes may not be exemptible under Schedule 9. 

5.4 In order to take the question of whether or not the episode in question is in the nature of a bona fide dramatic film, one must establish whether or not it involves child pornography.

5.4.1 "Child pornography" is defined in the FP Act   to include "...any image, real or simulated, however created, depicting a person who is or who is shown as being under the age of 18 years, engaged in sexual conduct or a display of genitals which amounts to sexual exploitation, or participating in, or assisting another person to engage in sexual conduct which amounts to sexual exploitation or degradation of children". "Sexual conduct" is defined , for the purposes of the Schedules, as "..genitals in a state of stimulation or arousal; the lewd display of genitals, masturbation; sexual intercourse, which includes anal sexual intercourse; the fondling, or touching with any object, of genitals; the penetration of a vagina or anus with any object; oral genital contact; or oral anal contact." 

5.4.2 The elements, therefore, which will constitute "child pornography" are : · an image · whether of a real person or an artificially-generated person, such as a "virtual" person · who is
under the age of 18 years or is shown as being under the age of 18 years · engaged in sexual intercourse..

5.4.3 The first scene involves two male prisoners in bed, with the top parts of their bodies naked  The one is lying on his back, while the other is lying on top of him. It is only  the movements and accompanying sound effects that make it clear that the men are involved in sexual conduct.  The sound effects and movements are quite explicit and clearly associated with sexual intercourse.  The question is: are the movements and sound effects  sufficiently "explicit" to come within the definition of sexual conduct and therefore within Schedule 7 for an X18 classification ?  But there is no suggestion that this scene involves persons under the age of 18 years and is therefore not child pornography.

5.4.4 The second scene is that of sexual conduct between the main schoolboy character and a woman.  The male, in school uniform, visits the home of the woman, sits on her bed, is offered a drink, and then kissed. fondled by the woman and undressed.  He then extracts a
condom, which he opens and which is then placed over his penis by the woman.  He is now naked, though only his upper body is shown.  The woman leans over his genitals, suggestive of oral sex and then sits astride him (dressed in a flimsy negligee) and they have sexual intercourse.  The camera moves from his face to her upper body and the movements are clearly suggestive of sexual intercourse.  Although actual penetration or genitals are not shown, the scene is as explicit as you can get without exposing the genitals!  The question is : is the male under the age of 18 years ? He is in school uniform - and school uniforms are associated with persons under 18 years. If he is being shown as being under the age of 18 years, this scene would constitute child pornography and would have been prohibited from
exhibition. 

Iyavar  Chetty
Film and Publication Board
March 2001