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CHAPTER 2

THE PRESENT POSITION IN SOUTH AFRICA

2.1 The general rule in South Africa is that the courts are open to the public ^[9] and that the public therefore has a general right of access to judicial proceedings.^[10] At common law, this principle applies equally to matrimonial causes as to any other contest between the parties.^[11] The rule is furthermore extended so as to include the press (acting as surrogates of the public), which means that journalists are free to attend trials and to publish reports on the proceedings.^[12]

2.2 These rules are recognised by the statutes governing the courts. ^[13] The Supreme Court Act prescribes that all proceedings, ie both criminal and civil proceedings, must take place in open court unless the court orders otherwise.^[14] The Act does not enumerate any special cases, and the matter is left to the discretion of the presiding officer. In Financial Mail (Pty) Ltd v Registrar of Insurance ao^[15] the court held that

[i]n civil matters the court must decide whether in the particular circumstances of a specific occasion such a 'special case' is constituted as to justify a departure from what has actually been the absolute rule in parts of the country for more than one and a half centuries and in none for less than a century, namely, that the civil court never closes its doors to the public.^[16]

Sec 16 does, however, preserve all provisions regarding privacy appearing in other legislation.

2.3 Provisions prohibiting the publication of proceedings are, for example, sec 8 of the Child Care Act,^[17] sec 10(4) of the Maintenance Act ^[18] and secs 153 and 154 of the Criminal Procedure Act.^[19] Another such example is that of sec 12 of the Divorce Act.

2.4 Sec 12 of the Divorce Act 70 of 1979 provides:

(1) Except for making known or publishing the names of the parties to a divorce action, or that a divorce action between the parties is pending in a court of law, or the judgment or order of the court, no person shall make known in public or publish for the information of the public or any section of the public any particulars of a divorce action or any information which comes to light in the course of such an action.

(2) The provisions of subsection (1) shall not apply with reference to the publication of particulars or information -

(a) for the purposes of the administration of justice;

(b) in a bona fide law report which does not form part of any other publication than a series of reports of the proceedings in courts of law; or

(c) for the advancement of or use in a particular profession or science.

(3) The provisions of subsections (1) and (2) shall mutatis mutandis apply with reference to proceedings relating to the enforcement or variation of any order made in terms of this Act as well as in relation to any enquiry instituted by a Family Advocate in terms of the Mediation in Certain Divorce Matters Act, 1987.

(4) Any person who in contravention of this section publishes any particulars or information shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand rand or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

2.5 This section does not restrict the right of access of members of the public to the courts. However, the right to make known or publish information about divorce proceedings^[20] is curtailed.

2.6 Facts that may not be published may include evidence placed on record by way of affidavit or evidence led viva voce in court during the divorce action, the contents of the pleadings filed, statements by counsel and informal observations by the judge. It should be borne in mind that settlement agreements may be attached to final orders of divorce and made part thereof. If this occurs, the terms of the settlement may be quoted in full.^[21]

2.7 Bell, Dewar and Hall^[22] have the following to say about the meaning of the word "public" in this context:

Despite the fact that in the case of S v Rossouw^[23] it was held that a single person is capable of being a member of the public, it is believed that an offence in terms of sec 12 of the Divorce Act will only be committed when publication has been made to a substantial portion of the community as an aggregate but not in its organised capacity. It is believed that, in their order context and interpreted eiusdem generis, the words "any section of the public" mean an identifiable group of reasonable size in relation to the public.

2.8 The penalty in terms of subsec (4) is a fine not exceeding one thousand rand or imprisonment for a period not exceeding one year. ^[24]

2.9 The history of sec 12 can be traced back to a previous investigation conducted by the South African Law Commission in 1974 into the law of divorce and all matters incidental thereto.^[25] This investigation was aimed at the improvement of divorce law in general, but also included a section on the publication of particulars concerning divorce proceedings.

2.10 The majority of those who forwarded comments to the Commission regarding publication of proceedings were in favour of a total ban on the publication of all particulars except the fact that divorce proceedings between the parties concerned had been instituted and that a decree of divorce had been granted. Representations were also made to the Commission to the effect that divorce proceedings (especially those in which children are involved) ought to be held in camera.

2.11 The reason given for the proposed exception, in the case of divorce proceedings, to the general rules of open courts and freely permitted publication, was that a prohibition on publication would eliminate sensational reporting of intimate, personal matters which could be prejudicial to the parties and particularly to the children of the marriage.^[26]

2.12 It was argued that a divorce is a highly personal matter. The public has an interest in the matter only in so far as the status of the parties is concerned. The intimate relationship of the parties and the causes of their marriage breakdown do not concern the public. Such details are published merely to stimulate the public taste for sensation.

2.13 A report^[27] on the law of divorce and matters incidental thereto was compiled by the Commission, together with a Bill incorporating the recommendations of the Commission. Clause 12 of the Bill dealt with the limitation of the publication of divorce proceedings.^[28] The Divorce Act was passed and commenced operation on 1 July 1979. Clause 12 of the Bill became sec 12 of the Act.2.14 The enactment of sec 12 in 1979 was an attempt to reflect the boni mores prevalent in South Africa at the time. According to the South African Law Commission’s report the object which the Commission set itself was to recommend realistic rules for the law of divorce which were in keeping with present-day needs of society in general, and which did not lose sight of society’s conception of what was reasonable and just. ^[29] The exception made in sec 12 was intended to protect both the spouses and their children against unwanted publicity. The interest which third parties have in knowing whether or not two particular persons are still married to each other, was also protected. ^[30]

2.15 During the 20-year period since its enactment, sec 12 has generally drawn favourable comment. ^[31] It has furthermore never been the subject of a court case in South Africa.^[32]

2.16 However, as stated in Chapter 1, there has been a general contravention of this section by the media and newspapers in recent years, as was evident during the former President Mandela's divorce action in 1996^[33] and that of Earl and Countess Spencer in 1997.^[34] The other recent example is that of the divorce action concerning Dr Naresh Denny Veeran and Mrs Veeran^[35] heard in the Durban High Court.

2.17 These events gave rise to numerous reports, discussions and arguments in the newspapers.^[36] Conflicting comments and views have been expressed in this regard:

(a) Prof Kobus van Rooyen, former chairperson of the Appeal Board on Publications and the SA Media Board is of the opinion that sec 12 is overly strict and the application of the criminal law inappropriate in this situation. ^[37] The media ought to be allowed to set their own standards and take responsibility for themselves.^[38]

(b) Neethling,^[39] in discussing an editorial in Beeld newspaper^[40] which explained the position of the press, stated that whatever the merits of these arguments may be, it is a given fact that the mass media, including Beeld, not only participated wilfully in the unlawful transgression of the right to privacy, but also in the commission of an offence and thereby contributed to the culture of contempt of the law which is currently prevailing in South Africa. He stated that if publication of reports of this kind becomes accepted practice, South Africans will have to steel themselves against the onslaughts of the mass media.^[41]

2.18 It is clear that there are different opinions. The Commission invites comment on the extent of the problem.

2.19 The conflicting rights to be balanced are the rights to privacy and dignity on one hand, and on the other the rights to freedom of expression and of access to the courts. For a full discussion of these rights and the importance of the Constitution in this regard, see Chapter 3.

[9] Bell, Dewar and Hall Attorneys Kelsey Stuart’s The Newspaperman’s Guide to the Law 5^th ed Butterworths Durban 1990 (hereinafter referred to as "Bell, Dewar and Hall") at 184. In R v Maharaj 1960 (4) SA 256 (N) Broome JP held that it is a principle of justice as administered in this country that trials must take place in open court and that judicial officers must decide them solely upon evidence heard in open court. See Magquabi v Mafundityala ao 1979 (4) SA 106 (E) at 110 for a reference to Lord Hewat in R v Sussex Justices (1924) 1 KB 256 at 299 where he stated: "Justice must not only be done, but must manifestly and undoubtedly be seen to be done". See Transvaal Industrial Foods Ltd v BMM Process (Pty) Ltd 1973 (1) SA 726 (A), where it was held that argument should be oral and in open court.

[10] Ms Zelda Moletsane, Acting President: Central Divorce Court indicated in a letter dated 4/1/2000 that when the evidence of a minor child is required during divorce proceedings, it is usually heard in Chambers by the presiding judge (Evidence in Chambers is regarded as evidence given in open court).

[11] S v Leepile (1) 1986 (2) SA 333 (W) at 337H, referring to the Lord Chancellor in Scott v Scott 1913 AC 417 at 438. See, however, the inroads made by legislation introduced since 1926 in this regard in all the common-law countries.

[12] Burns Y M Freedom of the Press: A Comparative Legal Survey Thesis submitted in accordance with the requirements for the degree of Doctor of Laws at the University of South Africa June 1984 (hereinafter referred to as "Burns") at 408. See Kingswell v Robinson; Kingswell v Argus Co Ltd 1913 WLD 129 and Kavanagh v Argus Printing and Publishing Co 1939 WLD 284 for the general right to publish judicial proceedings.

[13] Sec 16 of the Supreme Court Act 59 of 1959 (hereinafter referred to as "the Supreme Court Act"). The Magistrates' Courts Act 32 of 1944 lays down that civil and criminal proceedings are to be held in open court (Sec 5 (1) of the Act, as amended, see also sec 152 of the Criminal Procedure Act 51 of 1977), but a magistrate may direct that a civil trial be held behind closed doors in the interest of good order and public morals (Burns at 409 (Sec 5 (2)). In criminal proceedings there are certain circumstances in which the judicial officer may direct that the public or media be excluded, or that the trial be held behind closed doors. The instances in which such an order is made by the presiding officer usually relate to the protection of the identity of a juvenile offender, the concealing of the identity of a complainant in cases of indecency or extortion, and the interest of the state in security or the administration of justice.

[14] See also sec 34 of the Constitution which states:

Access to courts

34. Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

[15] 1966 (2) SA 219 (W) at 221.

[16] See further Marais J at 220-221 where he sets out the history leading to sec 16 : Until 1813, in consonance with the then universal practice in Holland (Van der Linden, Koopmans Handboek III, 1806) judgments and orders of the Cape courts had to be pronounced in public, but evidence and argument in trial cases were heard in camera, with only the parties and their lawyers in attendance. In 1813 the British Governor of the Cape issued a proclamation requiring all judicial proceedings in future to be carried on with open doors as a matter of “essential utility, as well as the dignity of the administration of justice”; it would imprint on the minds of the inhabitants of the Colony the confidence that equal justice was administered to all in the most certain, most speedy and least burdensome manner. This rule was reaffirmed by sec 32 of the Cape Charter of Justice of 1832. The Judges had no discretion in the matter and the Cape Supreme Court so interpreted it. In the case of W v W, 7 S.C. 104, De Villiers CJ refused an application to have a divorce heard in camera on the ground that the evidence was of such a nature that publicity was to be avoided. This enactment remained in force in the Cape Colony and province until 1959. Much the same position obtained in the colony of Natal. The Transvaal and Free State conformed to this procedure in 1902. In 1959, by sec 16 of the Supreme Court Act 59 of 1959, Parliament restored ftlinethe matter to the discretion of the presiding judge.

[17] Act 74 of 1983.

[18] Act 99 of 1998. See also sec 36 of this Act regarding the publication of information in respect of children.

[19] Act 51 of 1977.

[20] A “ divorce action” is defined in terms of sec 1 of the Divorce Act as:

an action by which a decree of divorce or other relief in connection therewith is applied for, and includes–

(a) an application pendente lite for an interdict or for the interim custody of, or access to, a minor child of the marriage concerned or for the payment of maintenance; or

(b) an application for a contribution towards the costs of such action or to institute such action, or make such application, in forma pauperis, or for the substituted service of a process in, or the edictal citation of a party to, such action or such application.

[21] Bell, Dewar & Hall at 196. See also Rule 62(7) of the Supreme Court Act 59 of 1959 regarding access to court records: only completed matters may be accessed by the public.

[22] Bell, Dewar and Hall at 196.

[23] 1971 (3) SA 222 (T).

[24] Sec 1(2) of the Adjustment of Fines Act 101 of 1991 states inter alia that where a law provides for a fine of a prescribed amount or for a prescribed maximum period of imprisonment, this amount is calculated in accordance with the ratio mentioned in sec 1(1)(a) of this Act. Sec 1(1)(a) states that the amount of the maximum fine is the amount which in relation to the said period of imprisonment is in the same ratio as the ratio between the fine which the Minister of Justice may from time to time determine in terms of sec 92(1)(b) of the Magistrates' Courts Act 32 of 1944 and the period of imprisonment as determined in sec 92 (1) (a) of that Act where the court is not a court of a regional division. Currently the maximum fine so determined is R20 000 or 12 months' imprisonment (GN R3441 of 31 December 1992).

[25] South African Law Commission Report on the Law of Divorce and Matters Incidental Thereto RP 57/1978 (Project 3 of 1974) (hereinafter referred to as "SALC Divorce Report").

[26] This was also the reason stipulated by the Minister of Justice at the Second Reading of the Divorce Bill, Hansard Wednesday, 25 April 1979 para 4996.

[27] SALC Divorce Report.

[28] The clause initially made provision for divorce proceedings to be held in camera, but after representations made by the Press Council to the Minister of Justice a compromise was reached making provision for sec 12 as it reads today.

[29] Hansard Wednesday 25 April 1979 column 4997.

[30] Cronjé D S P The South African Law of Persons and Family Law 3^rd ed Butterworths Durban 1994 (hereinafter referred to as "Cronjé") at 300.

[31] Bell Dewar and Hall at 195 state in their discussion of sec 12 that "the right to make known or publish information about divorce proceedings is, rightly it is submitted, substantially curtailed (our underlining). Cronjé in discussing sec 12 states (at 300): "It is clear that spouses and children are being protected against publication of particulars of the history of the marriage that caused the divorce...Besides the fact that the publication of the particulars of a divorce action is an offence punishable by a fine or term of imprisonment in terms of sec 12(4), such publication would probably amount to an infringement of the privacy of the parties concerned, and should thus constitute a ground for instituting an action for satisfaction". Neethling J, Potgieter J M & Visser P J Neethling's Law of Personality Butterworths Durban 1997 (hereinafter referred to as "Neethling, Visser & Potgieter") at 275 n 241 refers to the comment above with approval; See also Neethling at 528.

[32] The application for an interdict in the Spencercase being withdrawn at the last minute. See discussion below.

[33] The former President, Nelson Mandela, instituted a divorce action against his wife, Winnie Madikizela Mandela, in 1996. Particulars concerning the Mandela divorce were published by the media in South Africa in contravention of sec 12 of the Divorce Act.

[34] Earl Spencer instituted a divorce action against his wife, Countess Spencer, in 1997 in the Cape High Court. Lady Spencer demanded a 3.75 million pound clean-break settlement but under the terms of the divorce settlement, financial details were not divulged. The parties settled and both withdrew allegations made against each other during the case, stating that their primary concern was the welfare of their children. They appealed for privacy. However, intimate details of the Spencer case, like that of the Mandelas, were published by the South African and foreign media.

[35] In this case Mrs Veeran initially filed an intention to defend the divorce action but later withdrew it and the divorce was granted unopposed. Particulars concerning their divorce were however published.

[36] Some examples are as follows: Phillippa Garson “Mandela versus Mandela” Mail and Guardian 22/3/96; Estelle Ellis “Graaf Spencer se skeisaak begin” Die Burger 25/11/97 and 27/11/97; ”Spencer vra interdik teen pers” Beeld 27/11/97; Estelle Ellis “Skikking bereik in skeisaak” Die Burger 2/12/97; Eben Engelbrecht "Straf vir media oor egskeidingsberigte is ‘erg argais’” Rapport 30/11/1997; “From bouquets to brickbats” The Sunday Times on the Web Plus 11/1/98; “Lockwood eis nog geld na ‘skei-sirkus’” Beeld 6/10/98; Ken Vernon “Boesak and the Blond” Sunday Times 21/3/1999; Bonny Schoonakker “Heartbroken Barnard skips SA” Sunday Times 9/4/2000; Niyanta Singh and Buddy Naidu “Lotus FM Chief gets his divorce unopposed” The Post 7/6/2000.

[37] Eben Engelbrecht "Straf vir media oor egskeidingsberigte is 'erg argaies'” Rapport 30/11/1997 at 6.

[38] See also Phillippa Garson, who stated in the report "Mandela versus Mandela" in the Mail and Guardian on 22 March 1996 that "The flagrant contravention by the media this week of a section of the Divorce Act raised questions about whether that aspect of the legislation is unconstitutional.” and “A member of Mandela's legal team said: '...the team would not want to enforce a ban whose constitutionality was up for question ...' "

[39] Neethling at 533.

[40] See above at 2 n 6.

[41] Constitutional expert Dennis Davis was quoted in Mail and Guardian article supra as saying: “..it could be argued that the provision was unconstitutional in that it infringed on the right to freedom of expression. However, he said he found it “unbelievable” that such a provision, no matter how controversial, was so brazenly breached. “Being President gives you a reduced right to privacy but it can't possibly destroy your privacy completely. He might be the most famous person in the world but he is not public property.”