The case of the Labia Theatre and the screening of ‘Roadmap to Apartheid’’

This is a summary and comment on the Equality Court’s judgment on the dispute between the Labia Theatre, and the Palestinian Support Campaign, Right2Know and the South African Human Rights Commission.

EVIDENCE

The Labia is a private and independent cinema, whose main source of income is generated from screening films weekly. It also rents out the venue for private screenings.

The Labia describes itself as a ‘cinema on the alternative circuit that mainly appeals to the more discerning viewer who enjoys its quality product and the charm of its old-world ambience.’ Judge le Grange acknowledged that the Labia ‘occupies a unique place in the cultural and political life of Cape Town, and has done so from the late 1960s’.

In January 2012 Ludi Kraus, who owns the Labia, received an email from Lynn Taylor on behalf of Workers’ World Media Productions (WWMP) enquiring about booking the Labia for a screening on 4 March 2012.

WWMP’s website describes itself as ‘an independent labour movement media project…, [with] an audience reach across the continent’.

‘We have a vision for an informed, organised and mobilised working class acting in its own interests. To facilitate this, we produce, distribute and facilitate discussion groups, media training, film festivals, training manuals and television shows, but our primary focus is on radio productions and broadcasts.’

There is nothing on its website to indicate that the WWMP is connected to the Palestinian Solidarity Campaign (PSC).

However, Taylor thereafter emailed Kraus to request that he invoice the PSC for payment. 

The documentary the PSC wished the Labia to screen was called ‘Roadmap to Apartheid’. The judge described it as ‘a documentary that compares the circumstances of Palestinians to those of black South Africans during apartheid’.

Taylor’s email caused Kraus to research the film. Kraus discovered that ‘it is regarded as a highly controversial film’ and ‘an anti-Zionist production that was not focused on South Africa’, as he had initially expected. He also learned that the proposed screening would serve as a high-profile launch of the “Israel Apartheid Week” (IAW). 

IAW is an annual ‘event’ mostly located on university campuses to spread the claim that Israel is an apartheid state. It is invariably an opportunity for antisemitic invective and sometimes violence. It is regarded by the Jewish community as a ‘hate fest’.

As the film would ‘alienate and offend’ patrons and harm business, the Labia decided not to lease the cinema to the PSC.

According to the Labia, although it screens a wide array of independent films, it does not engage in political activity, as it refrains from screening films that may alienate or offend patrons, with a view to keeping its business alive.

In a statement to the press, the Labia stated: 'We were asked to release the film – which was pure propaganda – at the start of a week of Israel-bashing and we do not get involved in politics.’

Kraus didn’t send the invoice to the PSC and informed Taylor of his decision. Kraus was subsequently referred to Martin Jansen (“Jansen”), a representative of the PSC, to whom he explained his decision. Kraus was unaware that Jansen represented the PSC.

In response, the PSC called for a boycott of the Labia which included an organised demonstration on 13 April 2012. The Labia was accused of censorship. Hostile public exchanges occurred between the PSC and pro-Israeli groups.

A pro-Israel group also approached Krause during the same period to hire the Labia to show a film which claims to explore the proliferation of anti-Israel and anti-Semitic incidents in American universities. Kraus refused to screen the film, ‘Crossing the Line: The Intifada Comes to Campus’, for the same reasons as he rejected the ‘Roadmap to Apartheid’.

Right2Know (R2K) offered to mediate between the parties. R2K proposed that the Labia show the film and R2K would arrange a balanced debate immediately afterwards between representatives of the PSC and a Jewish organisation.  

Following the negotiations between the PSC, the Labia and R2K, the Labia agreed to screen the film on 7 June 2012. This agreement was recorded in writing in May 2012 in an email from R2K to the PSC and the Labia.

The agreement provided:

1.           There would be no charge for the venue and no charge at the door;

2.           A public invitation would be issued saying ‘[R2K], in collaboration with the PSC and the Labia, invite you to a screening of ‘Roadmap to Apartheid’;

3.           The invitation would be circulated by all parties;

4.         R2K would write to the South African Zionist Federation (SAZF) to invite it to the screening and to participate in a panel discussion after the screening

5.         R2K would write to the SAZF to invite its constituency to the screening and participate in a panel discussion afterwards;

6.         No posters or banners would be displayed at the screening;

7.         All parties would conduct themselves with dignity and show respect to and for others’ right to express their views’. Anyone who did not respect the authority of the Chairperson would be asked to leave the event;

8.         The agreement also included affording the SAZF, the PSC and the audience an opportunity to comment.

On 4 June 2012 the SAZF wrote to R2K declining the invitation to participate.

Kraus said that the participation of the SAZF in the debate was a precondition to the screening of the film. PSC and R2K disputed the existence of such precedent condition. The court held that this agreement was immaterial. The PSC took the view that the precedent condition amounted to an absurdity. The PSC says it did not agree to such a condition as it would grant ‘unilateral power to those who are hostile to the film and to censorship’.

The Labia advised R2K that as the agreement had lapsed, it would not screen the film. As a gesture of goodwill, Kraus offered that the Labia would pay the reasonable costs of an alternative venue to screen the film.

R2K, however, demanded that the Labia still screen the film in the absence of the proposed debate. The Labia refused, which led to further public criticism, debate, and media attention.

Meanwhile the PSC arranged to show the film at a different venue on 7 June 2012, as well as on multiple other occasions at different venues in Cape Town and ten further urban centres throughout South Africa as part of a “National Film Tour”. 

The Labia submitted that its refusal to screen the film had little impact on the PSC’s freedom of expression, belief, conscience and opinion.

THE PSC’S ARGUMENTS

The PSC asked that the Labia be ordered to screen the film in accordance with the agreement negotiated with R2K, irrespective of whether the SAZF or any other invited Zionist organisation or individuals accepted the invitation to participate.

The PSC also argued that in determining whether there had been unfair discrimination, the focus should not be on the contractual nature of the complaint, but on the conduct of Labia in relation to screening.

The PSC argued that the Labia can’t hide behind an agreement in order to conceal an act of unfair discrimination on prohibited grounds; that the Labia’s conduct displayed its true motive, which is a difference in conscience and belief with the PSC. This had been demonstrated by Kraus‘s statement that the film is ‘pure propaganda’ and ‘Israel bashing ’.

The PSC submitted that in agreeing to rent out its space for private screenings the Labia was not permitted to unlawfully discriminate on prohibited grounds, to cancel an agreement, pick and choose to whom it wants to rent out its space and what should be shown in that privately rented space.

THE LABIA’S ARGUMENTS

The Labia argued it made two different decisions: the Labia refused to lease a cinema for a private screening of the film against payment of the applicable fee. In the second decision, the Labia refused to lease a cinema for a public screening as no valid contract came into existence to screen the film. Even if it is found that such contract came into existence, there was a material mistake as to the identity of the party contracting with Labia.

The second intended screening was subject to the SAZF’s participation in a post-screening panel discussion and R2K failed to fulfil the condition, so that the contract lapsed.

The Labia argued that the PSC failed to establish a prima facie case that the Labia discriminated on the prohibited grounds or a comparable ground; it did not differentiate between the PSC and the request by the pro-Zionist group to screen its film.

The Labia’s third argument was that, if the judge found that discrimination did take place, it was not based on the PSC’s belief or conscience, but by the Labia’s aversion to screen highly politicised and divisive films promoting any political beliefs.

Fourthly, if discrimination was found and that it took place on a prohibited ground, then such discrimination was fair because the refusal had a minimal impact on the PSC’s beliefs and opinion: the film was screened at multiple alternative venues in Cape Town and beyond.

The Labia’s refusal served a legitimate purpose as it refused to be subjugated against its will as an instrument for the PSC’s political campaign. It took reasonable steps to address any disadvantages.

A finding that the Labia owed a duty to make a contractual offer to show the film will have grave broader societal implications as it will obliterate a private cinema’s freedom of expression, trade, conscience, thought, belief, opinion and freedom of contract.

THE DECISION

The judge held that the PSC formulated its complaint on the basis that:

1.        the Labia’s conduct amounted to a breach of an agreement; and

2.        that such conduct discriminates against those who hold a different belief.

3.        during argument however, the PSC mainly concentrated on whether Labia’s conduct amounted to discrimination on a prohibited ground.

The Labia, however, contended that the matter must be decided on the contractual relationship between the Labia and R2K, and where a precedent condition was not fulfilled.

Section 4(2) of the Equality Act set out guiding principles which require ‘the Court to recognise and consider:

(a)      The existence of systemic discrimination and inequalities, particularly in respect of race, gender and disability in all spheres of life as a result of past and present unfair discrimination, brought about by colonialism, the apartheid system and patriarchy; and

(b) the need to take measures at all levels to eliminate such discrimination and inequalities.’

The Equality Act’s primary focus ‘must be the conduct of Labia and not so much the contractual perspective, to determine whether there had been a withholding of benefits based on conscience and belief or a ‘comparable ground’ amounting to unfair discrimination’.

‘To view this case in a contractual context alone would amount to a superficial and mechanical approach. This would undermine the foundational values and principles underlying the Equality Act. The contractual nature between the parties must as a result be contextualized as a marginal issue.’ (our underlining)

Section 1 of the Equality Act, defines ‘discrimination’ as—

‘any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly

(a) imposes burdens, obligations or disadvantage on; or

(b) withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds;’

The ‘prohibited grounds’ are defined as:

‘(a) …religion, conscience, belief,…

(b) any other ground where discrimination …-

(i) causes or perpetuates systemic disadvantage;

(ii) undermines human dignity; or

     (iii) adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a);

'If the PSC makes out a prima facie case, then the Labia ‘must prove’ that:

1.1.   the discrimination did not take place; or

1.2.   the conduct is not based on a prohibited ground.

Section 13(2) provides that if it is found that the discrimination took place on a prohibited ground, then it is presumed to be unfair unless Labia ‘proves that the discrimination is fair’.

Fairness per section 14(2) of the Equality Act includes ‘(a) [t]he context; (b) the factors referred to in subsection (3); and (c) whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned.

The judge noted the PSC approached the Labia ‘with its rich history of screening alternative films, with a documentary that compares the circumstances of Palestinians to those of black South Africans during apartheid’.

The judge also said ‘it is evident that the PSC holds the genuine and reasonable belief that Palestinian people are ‘being subject to illegal Israeli occupation’ and it aims ‘to educate the public about the nature of the state of Israel as an apartheid state. In my view, the PSC’s genuine beliefs must therefore fall within the prohibited grounds of the terms ‘conscience’ or ‘belief’ as envisaged by the Equality Act.’

The Labia contended that it does not ‘screen overtly political or controversial films’. It also cited ‘business considerations’ for not screening the film.

‘At the second intended screening, Labia did not follow its general policy and agreed to screen the film. Labia conceded that its general policy and its business considerations were not relevant, as this film was in a ‘different category’ and that it was ‘the subject of an agreement’. However Kraus who at all times represented Labia stated that the film is ‘pure propaganda’ and ‘Israel bashing’.

The judge held that the Labia’s argument that it doesn’t screen overtly political or controversial films is seriously at odds with the objective facts.

‘Moreover, it is a well-known fact that the Labia often screen (sic) controversial critically acclaimed foreign-language films for their importance to the art of cinema. Some of these films may also have been banned or censored in the counties of origin. 

The Labia was in the business of offering its services by hiring out its cinema to screen films that are thought-provoking, hard-hitting and controversial to the general public. The screening of the film could therefore not have been any different as the PSC was willing to pay the agreed amount for the rental of the venue at the first attended screening.

The judge found that the Labia’s true motive for not screening the film has to do with its difference with the PSC’s conscience and belief. ‘The fact that the Labia did not want to screen the film of the pro-Zionist Group 18, does not detract from its true motive or their business model of hiring out its cinemas.’

The judge does mention Labia’s rights to freedom of thought, conscience and religion and freedom of expression as being guaranteed by the Constitution as relevant. ‘However, it is now well established in our law that private persons can attract a duty to make contractual offers where a refusal to do so would be unfairly discriminatory.

The Labia’s conduct amounted to discrimination on a prohibited ground and is presumed to be unfair.

‘The conflict between Palestine and Israel is infamous and notoriously controversial. It is not uncommon that people easily find themselves on one side or on the other. This creates antagonism. The PSC is legitimacy (sic) acting on behalf of the people of Palestine, and to advance a view that hopes, one day, to reduce their oppression. The PSC, firmly believes that historically, the Palestinians have suffered patterns of disadvantage. The conduct of the Labia in this matter does not ease that burden but actually perpetuates this pattern.’

‘In fact, Labia did not only refuse to show the film twice, but also gave statements to the media attacking the documentary. The comments made by the Labia to the press demonstrate the underlying nature of the discrimination. It is clear that the nature and extent of the discrimination against the belief and conscience held by the PSC and as presented in the film cannot be underestimated.’

THE ORDER

The judge ordered:

1.       The Labia to screen the film, whether or not the SAZF or any other invited Zionist organisation or individuals accept the invitation to participate;

2.       PSC pay the Labia the necessary screening fee;

3.       The Labia must screen the film within 60 days of this order;

4.       The Labia is to pay the costs of this application such costs to         include the costs occasioned by the employment of two counsel.

Without having had sight of what was argued in the record of the hearing we don’t know whether the concerns noted below were canvassed in the matter, but not reflected in the judgment.

Notwithstanding that PSC had been able to screen the film far and wide nearly a decade ago, the judge still saw fit to order it to be screened now. The judge found against Labia, but he didn’t have to order that the film be shown as the dispute is ten years old and the PSC has more than got the screening it allegedly desired.

The fact that the PSC could and did have the film screened widely at other venues, the judge showed no consideration as to how it had been disadvantaged by the Labia’s actions

Also the judge gave no consideration why the Labia had to be a, or the, venue for the screening.

The judge made no mention of the duplicity of the approaches being made to the Labia by an organisation that made no reference to the PSC; and that subsequently in the discussion with Jansen still no link to the PSC was made.

The judge made no reference to the pro-Israel view regarding Israel being called an ‘apartheid state’. His references to the content of the film either show ignorance of the nuances of the issue or prejudice. The judge seemed to uncritically accept the PSC’s view. The only justification would be if no evidence was put forward by those arguing for the Labia.

The judge did not appear to know or made no reference to the fact that the PSC has targeted the Labia repeatedly over the years as the Labia is Jewish-owned.

The PSC is not just pro-Palestinian, it is resolutely anti-Israeli.

The PSC is a key organiser of the annual ‘Israel Apartheid Week’. It is the prime proposer of resolutions that the University of Cape Town boycott Israeli academia and academics.

Most importantly, the PSC denies the right of the Jewish state to exist. One of the purposes of the PSC is to campaign for the right of return of the Palestinian people. The consequence is that within a short time the Muslim population will exceed the Jewish population and Israel, qua Jewish state, will cease to exist.

The PSC is allied to Boycott Disinvestment Sanctions whose aim includes the end to the Jewish state.

Finally, why should the entering into the contract not have a significant effect on the alleged discrimination? The judgment records that the agreement between the three parties came into being and is reflected in an email from R2K. When the SAZF refused to come on board, R2K demanded that the film be shown anyway.

The PSC asked for an order that the Labia screen the film irrespective of the contract. PSC and R2K disputed the existence of such precedent condition. The PSC took the view that the precedent condition amounted to an absurdity. The PSC says it did not agree to such a condition as it would grant ‘unilateral power to those who are hostile to the film and to censorship’. All the R2K had to do was invite the SAZF; it didn’t matter whether they accepted or not. Surely the invitation in itself was never intended to be sufficient? If it was it would not have met the Labia’s needs.

The PSC might have obtained its long-term objective of having the Labia close down if it becomes insolvent do to the costs order it has to meet.

This piece has not even raised the effect on private sector rights in not having the right to choose with whom they may or may not do business. That is the topic for another article.

Note: This article will be revised and updated in light of the screening of the film, and the context of the current war.

Sara Gon is head of strategic engagements at the Institute of Race Relations (IRR), a liberal think tank that promotes political and economic freedom