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3.1 Sec 2 of the Constitution states that the Constitution is the supreme law of the Republic, that any law or conduct inconsistent with it is invalid, and that the obligations imposed by it must be fulfilled.
3.2 The purpose of this Chapter is thus to determine whether sec 12 of the Divorce Act, which predates the Constitution, is in conflict with the provisions of the Bill of Rights as set out in the Constitution.
3.3 The different competing constitutional rights relevant to this matter, as entrenched in the Bill of Rights, are the right to privacy (sec 14), the right to human dignity (sec 10) and the right to freedom of expression (sec 16). [42] These rights are interactive, and need to be balanced. Reference should also be made to sec 28(2) of the Constitution, which states that a child’s best interests are of paramount importance in every matter concerning the child.
3.4 The purpose of this chapter is therefore to determine:
(a) the content and scope of the right to freedom of expression set out in sec 16 of the Constitution;
(b) whether sec 12 of the Divorce Act infringes on the right to freedom of expression; and if so,
(c) whether the infringement can be justified in accordance with the criteria of sec 36 of the Constitution with special reference to the rights to privacy, dignity and the best interests of children.
3.5 The rights entrenched in the Bill of Rights are formulated in general and abstract terms. The meaning of these provisions will therefore depend on the context in which they are used, and their application to particular situations will necessarily be a matter of argument and controversy.[43]
3.6 Sec 39 of the Constitution contains an interpretation clause which pertains to the Bill of Rights.[44] It states that when the Bill of Rights is interpreted a court must promote the values which underlie an open and democratic society based on human dignity, freedom and equality. This means that an exercise is required analogous to that of ascertaining the boni mores or legal convictions of the community in the law of delict.
3.7 The section furthermore requires reference for purposes of interpretation to international human rights law in general. This is not confined to instruments that are binding on South Africa.[45] A person may also rely on rights conferred by legislation, the common law or customary law. Such rights may not, however, be inconsistent with the Bill of Rights.[46]
3.8 Although sec 39 provides a starting-point when trying to interpret the Bill of Rights, it requires interpretation itself. The Constitutional Court has therefore laid down guidelines as to how the Constitution in general and the Bill of Rights in particular should be interpreted.[47] It should be interpreted by first of all determining the literal meaning of the text itself [48] and identifying the purpose or underlying values of the right. [49] A generous interpretation should furthermore be given to the text, [50] and the history of South Africa and the desire not to repeat it should be taken into account.[51] Finally, the context of a constitutional provision should be considered, since the Constitution is to be read as a whole and not as if it consists of a series of individual provisions to be read in isolation.[52]
3.9 Sec 16 of the Constitution protects the right to freedom of expression.[53] It protects free expression generally, but also specifically includes freedom of the press and the media.[54] Information on this subject in our common law is limited since it is only recently that the mass media have started to play a significant role. However, at common law the public has, in general, a right of access to judicial proceedings.[55]
3.10 Although the list of values that underpins freedom of expression is not closed, three main justifications for freedom of expression have been advanced:[56]
(a) That the free exchange of ideas is the best way of attaining the truth (the marketplace of ideas theory); [57]
(b) Freedom of expression is a vital part of the democratic process; [58] and
(c) It is a manifestation of individual autonomy and self-fulfilment.
3.11 Although the usual rationale for the constitutional protection of press freedom is the important contribution made by the press to establishing and maintaining an open and democratic society[59] in a political sense, family law and its administration are also of major public and social importance. [60] The public accordingly has a legitimate interest in knowing what the law is and how the courts are applying it.[61] This is particularly true as regards the issue of child protection.[62]
3.12 It is the vital function of the media to inform the public about every aspect of public, political, social and economic activity and thus to contribute to the formation of public opinion.[63]
3.13 In so far as the courts are concerned, this interest is rooted in the need to maintain an effective evidentiary process and to ensure a judiciary that behaves fairly and that is sensitive to the values of society. It is also important to promote a shared sense that courts operate with integrity and dispense justice.[64]
3.14 The public does not resort to official law reports and legal journals to inform itself. Nor generally do members of the public attend court proceedings. They rely on the press to supply them with information. But for the newspapers, the public would have little or no knowledge of what transpires in the country's courts. In a sense this validates the media claim of functioning as surrogates for the public. Media reporting therefore "contributes to public understanding of the rule of law". [65]
3.15 In addition to the interest of the public at large, the interests of litigants should also be noted. They may feel vindicated by the public airing of injustice they feel they have suffered alone and without support from the community. For every litigant concerned about the adverse impact of publicity on his or her image in the community, there may be another equally concerned about public vindication and community support. [66]
3.16 The state is able, by virtue of its greater power, to lay down conditions restricting the rights and freedoms of its subordinates in the public intererest.[67] It stands to reason, especially in light of the entrenchment of freedom of speech in the Constitution, that the public interest in information should not be narrowly construed.[68] On the other hand this does not imply that the protection thereof is unlimited. It is for instance limited by the right to privacy of persons.[69]
3.17 The question is therefore: To what extent is the publication of private facts concerning individuals justified in the public interest? Two virtually identical tests are being applied in the
American and German law.[70] The public has a legitimate right to be informed of:
(a) newsworthy events and
(b) the activities or lives of personalities in the public eye.[71]
3.18 Public figures are persons who, by virtue of their status, office, occupation, conduct and crimes, grant the public a legitimate interest in information regarding not only their public life and activities, but also, to a certain extent, their private lives.[72] They include statesmen, sporting heroes, business magnates, artists, etc.[73]
3.19 A distinction should be made between the public and private lives of these people.[74] It cannot simply be accepted that a legitimate interest in information exists also with regard to the private life of public figures and that only their most intimate life is protected against publicity.[75] In principle the private life of these persons should also be protected against publicity.[76] On the other hand it is quite conceivable that the public may in certain circumstances have a legitimate interest in information concerning even the sordid intimate life of, for example, a politician. [77] Thus it may be concluded that all the circumstances surrounding the publication of the statement invading the plaintiff's privacy must be considered in determining whether the statement is being made for the public benefit.
3.20 Even public figures who have voluntarily sought the public gaze and have, to some extent, forfeited their right to privacy, have a residual realm of solitude where they have a right to be let alone.[78] However, public figures, by the very nature of their public life and duty, often find it necessary to use the press to communicate on public issues.[79]
3.21 Where a person is not a public figure it seems that there is no good reason for disclosures to be made concerning his or her private way of life, standard of living, place of dwelling and the like.[80]
3.22 Disclosures concerning a person’s family (eg his or her spouse or children) would seem prima facie to constitute an invasion of the privacy of members of the family directly concerned. Such disclosures, however, will not be actionable if they are in the public interest, and can be considered as being a valid news item.[81]
3.23 The right to freedom of speech and expression, like the other fundamental rights and freedoms entrenched in the Bill of Rights, is not absolute.[82] Boundaries are set by the rights of others and by the legitimate needs of society. Sec 36 of the South African Constitution is a general limitation clause[83] and sets out specific criteria for the limitation of the fundamental rights in the Bill of Rights.[0]
3.24 The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. There is, however, no absolute standard that can be laid down for determining reasonableness and necessity. Whether the purpose of the limitation is reasonable or necessary will depend on the circumstances in a case-by-case application.[85]
3.25 Constitutional analysis under sec 36 is a two-stage approach:[86] First it must be determined whether the challenged law has in fact infringed the fundamental right. If the right has been infringed, the state or the person relying on the validity of the legislation may then demonstrate that the infringement of the right is nevertheless permissible in terms of the criteria for a legitimate limitation of rights laid down in sec 36.[87] The policy indulging the infringement must be reasonable and justifiable in a free and open democracy.[88]
3.26 Rights cannot be overridden simply on the basis that the general welfare will be served by the restriction. The reasons for limiting a right need to be exceptionally strong, as opposed to concerns that are trivial.[89] They should also be in harmony with the intrinsic values set out in the Constitution. [90]
3.27 In S v Makwanyane [91] the Constitutional Court set out its approach as follows:
In the balancing process, the relevant considerations will include the nature of the right that is limited, and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy, and particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question.
3.28 In the present investigation it is the delicate balance between freedom of the press and the protection of individual privacy, reputation and dignity which has to be determined. In determining the current modes of thought and values of the community, the boni mores or convictions of the community regarding right and wrong are of particular importance. This is a test analogous to that of the unlawfulness inquiry under the common-law actio iniuriarum.[92]
3.29 It may be argued that sec 12 infringes the right to freedom of expression in so far as its purpose and its effect are concerned.
3.30 The following arguments are relevant in this regard: [93]
(a) The section prohibits a form of expressive activity. It restricts the freedom of the press and other media and the freedom to receive or impart information or ideas.
(b) It interferes with the well-established principle that the courts must be open to public scrutiny and its processes open to publicity.
(c) The prohibition is of a wide and undiscriminating ambit. It includes matters pertaining to custody of children, access to children, division of property and the payment of maintenance. It does so irrespective whether matters of public interest are raised or whether particular concerns (such as the interests of children) are in jeopardy.
(d) The section does not make provision for the exercise of a judicial discretion in appropriate circumstances. It constitutes an absolute prohibition, subject to limited exceptions which make no provision for the freedom of the press and media or the right to receive or impart information or ideas. It applies to "any particulars of a divorce action or any information which comes to light in the course of such an action"[94] irrespective of the nature of the particulars or information concerned or the parties involved.
(e) The prohibition is of indefinite duration.
Taking into account the arguments set out above, it appears that the restriction of the publication of proceedings does infringe the right to freedom of expression.
3.31 A law may legitimately limit a right in the Bill of Rights if it is :
(a) a law of general application that is
(b) reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
3.32 Appropriate evidence must be led to justify a limitation of a right in accordance with the criteria laid down in sec 36. [95]
(aa) Is sec 12 a "law of general application"?
3.33 This requirement is the expression of the basic principle of the rule of law. It seems that all forms of legislation (delegated as well as original) would qualify as law, as would the common law and customary law.[96] Sec 12 is a law of general application.
(bb) Is the limitation in sec 12 a reasonable and justifiable limitation in an open and democratic society based on human dignity, equality and freedom?
3.34 Any limitation of the constitutional right to freedom of the press in terms of sec 16 will have to be brought within the provisions of sec 36(1) of the Constitution.[97]
3.35 It should, however, be noted that the inquiry into the justification in a constitutional context is, in essence, the same as the inquiry into the justification under the common law. Both focus on the balancing of fundamental interests within a broad idea of reasonableness.
3.36 In the recent Supreme Court of Appeal judgment in National Media v Bogoshi[98] it has been acknowledged that the standard defences excluding unlawfulness do not necessarily cover all possible policy issues, and so the distinction between constitutional justification in terms of the limitation clause and common-law justifications, in terms of a broad reasonableness criterion, is becoming increasingly blurred.[99] The jurisprudence on the application of standards of reasonableness in the common law and jurisprudence in terms of the limitation clause under sec 36 of the Constitution will inform each other.[100]
3.37 However, in Bernstein v Bester NO,[101] in deciding whether secs 417 and 418 of the Companies Act [102] infringed sec 13 of the Interim Constitution, Ackermann J held that caution must be exercised when attempting to project common-law principles onto the interpretation of fundamental rights and their limitation.[103] He drew a distinction between the two-stage constitutional inquiry into whether a right has been infringed and whether the infringement is justified, and the single inquiry under the common law, as to whether an unlawful infringement of a right has taken place.
3.38 To satisfy the limitation test, it must be shown that the law in question serves a contitutionally acceptable purpose and that there is sufficient proportionality between the harm done by the law (the infringement of the right) and the benefits it is designed to achieve (the purpose of the law). As stated above, the standard reference used when the Constitutional Court considers the legitimacy of a limitation was set out in S v Makwanyane[104] and included in sec 36 of the Constitution. The following five factors identified as making up the proportionality enquiry in this case will be discussed:
(a) nature of the right
(b) the importance of the purpose of the limitation
(c) the nature and extent of the limitation
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
3.39 The factors mentioned are not exhaustive. They are key considerations, to be used in conjunction with any other relevant factors, in the overall determination whether a limitation is justifiable.[105] Once a court has examined each of the factors, it must then weigh up what the factors have revealed about the purpose, effects and importance of the infringing legislation on the one hand; and on the other, the nature and effect of the infringement caused by the legislation (a proportionality test) to determine its constitutionality. The court must engage in a balancing exercise and arrive at a global judgment on proportionality, and not adhere mechanically to a sequential check-list.[106]
(i) nature of the right (sec 36(1)(a))
3.40 Some rights may weigh more heavily than others. It will therefore be more difficult to justify an infringement of such rights than other, less weighty rights. A court must assess what the importance of a particular right is in the overall constitutional scheme.[107]
3.41 There is no doubt that press freedom is of crucial importance in any society, and this reality has been acknowledged not only in the South African Constitution[108] but also for many years by the South African courts.[109]
3.42 However, this was not always the case. Burchell[110] discusses the fact that the general principle of media freedom was dealt damaging blows by both the legislature and the judiciary during the years of apartheid. [111] Recently, however, in National Media Ltd v Bogoshi,[112] the Supreme Court of Appeal reaffirmed its commitment to freedom of expression, including media freedom, holding that it was an essential foundation of a democratic society.[113] The right is furthermore recognised in international and national instruments.[114]
3.43 An important point was, however, made by Wilson J in the Edmonton case,[115] where he stated that it might be that freedom of expression has greater value in a political context than it does in the context of disclosure of the details of a matrimonial dispute. This should be taken into account in finding a fair compromise between competing values.[116]
3.44 In South Africa, in Holomisa v Argus Newspapers,[117] Cameron J recognised the special role of the press in a constitutional democracy but stated that this does not mean that the journalists must enjoy special constitutional immunity beyond that accorded to ordinary citizens.[118] Cameron J described the idea of "press exceptionalism" not only as unconvincing but also as dangerous. The right of the media to communicate information and comment, while obviously crucial in a modern democracy, should be no greater than that of an ordinary citizen to communicate.[119] Media freedom should therefore not constitute a plea for privileged status but rather a recognition of the right of the public to be informed. [120]
3.45 Freedom of expression is therefore also subject to reasonable and justifiable limits which, in turn, must also reflect the dictates of freedom, equality, democracy and dignity. The exercise of the right to freedom of expression may conflict with the protection of equality or privacy, and the appropriate balance between individual reputation, dignity and privacy and freedom of expression has to be found.[121]
3.46 Mostert argues that one could furthermore expect of the media themselves to live up to the standards of professional integrity which they rightly demand of others: sensationalist or ill-considered reporting has enormous potential to damage the administration of justice. It is in the interests of the media not to devalue a process in which they participate, but to play their part in ensuring that the fair administration of justice in open court does not itself become devalued. Voyeuristic journalism, which profits from prurient interest in lurid details, is out of keeping with a society that honours common decency, civility and respect. [122]
ii) importance of the purpose of the limitation (sec 36(1)(b))
3.47 To be reasonable, the limitation of a right must serve an important purpose. The purpose should be one that is worthwhile and one that all reasonable citizens would agree to be compellingly important in a constitutional democracy.[123]
3.48 Sec 12 of the Divorce Act constitutes a limitation of the right to a free press as set out in sec 16 of the Constitution. It should, however, be noted that sec 12 is at the same time a confirmation of the rights to dignity and privacy which are also enshrined in the Constitution in secs 10[124] and 14[125] respectively, as well as sec 28(2) of the Constitution dealing with the child's best interests. Although the Constitution was not yet in force in 1979 when the Divorce Act was enacted, it was indeed to protect the common-law rights of dignity and privacy of spouses and their children that this section was originally instituted.[126]
3.49 The right to dignity is one of the core constitutional rights. The Constitutional Court describes the right to dignity and the right to life as the most important human rights.[127] The court further points out that the right to dignity is intricately linked with other human rights and is therefore the foundation[128] and the source[129] of many of the other rights that are specifically entrenched in the Bill of Rights.[130] The right to dignity could perhaps be seen as a naturally all-embracing idea and as an important underpinning of any human-rights ideology.[131] The right to a good name or reputation forms part of the right to human dignity as entrenched in sec 10 of the Constitution.
3.50 In many cases the courts also seem to regard the invasion of a person's privacy as an impairment of dignitas, although it has been argued that the concept is much wider. The difficulties attendant upon defining the limits[132] of such a right to privacy have led some writers to suggest that a separate right to privacy is not warranted.[133] In certain instances privacy is equated with other personality interests.[134]
3.51 The courts in South Africa, without specifically defining the concept,[135] have experienced little difficulty in recognizing the right to privacy as one the rights of personality which they are prepared to protect.[136]
3.52 The right to privacy is protected in terms of both our common law[137] and the Constitution.[138] The Constitutional Court in Bernstein v Bester emphasised the connection between the common law and constitutional rights to privacy.[139]
3.53 The right to privacy is also dealt with in various international instruments, i.e. the Universal Declaration of Human Rights,[140] the UN Convention on the Rights of the Child[141] and the European Convention on Human Rights.[142]
3.54 The right to privacy is a valuable and advanced aspect of personality. Sociologists and psychologists agree that a person has a fundamental need for privacy.[143] An individual therefore has an interest in the protection of his privacy. In accordance with the principle that a legal subject personally determines the private nature of facts, he must also exhibit the will or desire that facts should be kept private.[144] If such a will for privacy is absent, then a person usually has no interest in legal protection of his privacy.
3.55 The crucial question is how to determine which facts are private in nature. In the case of an infringement of privacy, the question whether someone's good name has also been infringed is not necessarily relevant.[145]
3.56 For convenience the right to privacy can be divided into two categories:[146]
(a) privacy rights protecting personal autonomy (preventing intrusions into one's private life);
(b) privacy rights protecting information (preventing disclosures and access to information).[147]
3.57 It is the second category that is of interest in this investigation. Privacy rights protecting information generally limit the ability of people to gain, publish, disclose or use information about others without their consent.[148] Individuals have control not only over who communicates with them but also who has access to the flow of information about them.[149]
3.58 In privacy cases the plaintiff is being compensated for the hurt and humiliation suffered by him or her as a result of having his or her private life made public.[150] The rationale behind the right is that the state and other people should have nothing to do with an individual's intimate affairs.[151] Sec 12 affords protection against the embarrassment that may flow from such publicity.[152] The question is whether this is a legitimate cause.[153]
3.59 A person’s sexual relationship with another is probably the most intimate of all human relationships, particularly when such relationship is consecrated by marriage, and any invasion of sexual privacy must be one of the most flagrant invasions of privacy imaginable.[154] Marriage has been described as the most intimate of human relationships. Even in English law, where invasion of privacy is not recognised as a common-law tort, the courts have recognised that any disclosures concerning what passed between a husband and wife during the marriage may be construed as an actionable breach of confidence.[155]
3.60 If evidence has to be given in open court, it may be difficult for the parties and witnesses to speak fully and frankly on sensitive matters or where questions are potentially self-incriminatory. Whereas the result of a particular case could be made public, there may be a need for evidence to be given in private.[156]
3.61 One should also take note of the capacity of the media, and in particular the tabloid press, to sensationalise [157] and to trivialise sensitive issues and matters of great emotional importance to the individual concerned.[158]
3.62 The best interests of the child should always be paramount and rank higher in status than press freedom generally, or the public's right to information. The potential trauma to the child increases with the amount of information that is divulged.
3.63 Like other rights, privacy is, however, not absolute and has to be weighed against the equally important right of others to express themselves freely. The boundaries of press intrusion into lives and conduct of private individuals and public figures alike highlights the tension between this right and the right of public to be informed. The appropriate balance between freedom of expression and privacy has to be struck within the general requirement of unlawfulness (unreasonableness). [159]
3.64 According to the Constitutional Court[160] the truism that no right is to be considered absolute implies that from the outset of interpretation each right is always already limited by every other right accruing to another citizen. In the context of privacy this would mean that it is only the inner sanctum of a person, such as his or her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities, such as business and social interaction, the scope of personal space shrinks accordingly.
3.65 From the above it appears that the protection of the privacy and dignity of the individual is a legitimate and important government objective. The limitation imposed by sec 12 of the Divorce Act on the constitutional right to freedom of expression therefore serves an important purpose.
(iii) the nature and extent of the limitation (sec 36(1)(c))
3.66 One has to assess the way in which the limitation affects the right concerned. In general the more serious the impact of the measure on the right, the more persuasive the justification must be.[161] This assessment is a necessary part of the proportionality enquiry because proportionality means that the infringement of rights should not be more extensive than is reasonably warranted by the purpose that the limitation seeks to achieve. Determining whether the limitation does more damage to rights than is reasonable for achieving its purpose first requires an assessment of how extensive the infringement is.
3.67 The following arguments are pertinent:
(a) Sec 12 may be regarded as a blanket prohibition preventing the media from reporting on the particulars of any divorce action, and it prevents the public from obtaining information containing such particulars. Consequently it significantly reduces the openness of the courts and the ability of the press and the public to obtain information about judicial proceedings.
(b) It precludes the exercise of a judicial discretion concerning the circumstances in which a prohibition of this nature may be justified:
(i) It applies irrespective of the identity of the parties to the action.
(ii) It applies irrespective of the content of the material falling within its terms.
(c) The prohibition is of unlimited duration.
3.68 It therefore seems that the restriction results in a very substantial infringement of the right to press freedom.
(iv) the relation between the limitation and its purpose (sec 36(1)(d))
3.69 There should be proportionality between the harm done by the infringement and the beneficial purpose that the law is meant to achieve. Sec 36 does not permit a sledgehammer to be used to crack a nut. [162] There must therefore be a causal connection between the law and its purpose.
3.70 The first question to be answered is whether the law serves the purpose it is designed to serve at all. If not, it cannot be a reasonable limitation of the right. If the law contributes only marginally to achieving its purpose, the latter cannot be an adequate justification for an infringement of fundamental rights.
3.71 The duty of the court is furthermore to determine whether the legislature has overreached itself in responding, as it must, to matters of great social concern. [163]
3.72 Sec 12 addresses a concern about personal anguish and loss of dignity that may result from having embarrassing details of one's private life printed in the newspapers. However, as was stated in Chapters 1 and 2 above, sec 12 does not seem to be effective in achieving its purpose.
3.73 It is furthermore clear that while the object of sec 12 may be to protect the privacy of the parties concerned, the means chosen to further this object are not proportional to that object. The publication of evidence in matrimonial proceedings may, on occasion, cause emotional and psychological trauma or public humiliation that warrants a prohibition on publication. Sec 12 of the Divorce Act is, however, not restricted to such cases. It encompasses all divorce proceedings, presumably on the assumption that they are inevitably attended by such consequences. This is an unrealistic assumption to make.[164]
3.74 By contrast, comparable statutory provisions may be upheld precisely because they afford to courts a judicial discretion which may be exercised so as to strike the appropriate balance between competing rights in particular circumstances and thus to preserve, as far as reasonably possible, the freedom of expression.[165]
3.75 The right to freedom of expression is therefore infringed more than is reasonably necessary to achieve its object. Although sec 12 is rationally connected to its purpose, it suffers from the constitutional defect of over-breadth.[166]
(v) less restrictive means to achieve the purpose (sec 36(1)(e))
3.76 A limitation must achieve benefits that are in proportion to the costs of the limitation. The question whether there are less restrictive means to achieve the government's purpose is an important part of the limitation analysis. However, it is important to realise that this is only one of the considerations. It cannot be the only consideration.[167]
3.77 The limitation will not be proportionate if other means could be employed to achieve the same ends and will either not restrict rights at all, or will restrict them to the same extent. If a less restrictive (but equally effective) alternative method exists to achieve the purpose of the limitation, then that less restrictive method must be preferred.[168]
3.78 The following arguments are pertinent:
(a) The object of protecting privacy may be achieved by existing legislation. Sec 16 of the Supreme Court Act 59 of 1959 already permits the exercise of a judicial discretion to close proceedings in appropriate circumstances.[169]
(b) Self-regulation by the media seems to be playing an increasingly important role.[170]
(c) Comparable statutory provisions do not impose a mandatory statutory prohibition on publication. They include provision for the exercise of a judicial discretion.[171]
(i) Sec 8(3)of the Child Care Act [172] provides that
"No person shall publish in any manner whatever any information relating to proceedings in a children's court which reveals or may reveal the identity of any child who is or was concerned in those proceedings: Provided that the Minister or the commissioner who presides or presided at those proceedings may authorize the publication of so much of the said information as he may deem fit if the publication thereof would in his opinion be just and equitable and in the interest of any particular person."
(ii) Sec 10(4) of the Maintenance Act [173] provides that
"No person whose presence is not necessary shall be present at the enquiry, except with the permission of the maintenance court."
3.79 Matters comparable to those which may arise in divorce proceedings may characterise disputes arising in intimate relationships which have comparable attributes. Nevertheless, our law provides no statutory protection against publication of those disputes other than the ordinary discretionary powers of courts to hold in camera proceedings.
3.80 A judicial discretion exercised in appropriate circumstances may provide an appropriate mechanism to further the objective of privacy while not unnecessarily limiting the freedom of expression.
3.81 The protection of the privacy of witnesses or children may therefore be accomplished by less sweeping measures, for instance by the exercise of discretion by the judge to prohibit publication or to hold in camera hearings in those few circumstances where it would be necessary to do this.
3.82 It is clear that the right to freedom of the press and the principle of open courts are firmly rooted in both our common law and statute. Pitted against these are the rights to privacy and dignity, likewise important rights entrenched in the Bill of Rights. They are all guaranteed but not unqualified rights regarded as fundamental to a free society.
3.83 It would be difficult in principle to choose one right over the other. Furthermore although sec 12 is a serious infringement of the right to press freedom, some leeway is allowed in that provision is made for exceptions to the general rule.
3.84 However, when one evaluates the effectiveness of the legislation and the question as to whether less restrictive means could have been used to the same effect, the constitutionality of sec 12 becomes uncertain. When the scope of the infringement of the right to press freedom is weighed against the purpose, importance and effect of sec 12 it would appear that sec 12 is overly broad.
3.85 For similar reasons to those set out above, the Canadian Supreme Court has invalidated a comparable provision of the Canadian Judicature as an unconstitutional limitation of the freedom of expression.[174]
3.86 Readers are consequently asked to consider the contents of the rights referred to above; in particular whether sec 12 is an unjustifiable violation of the right to freedom of expression and how the rights ought to be weighed up against each other.
[42] See also sec 32 (1) of the Constitution:
Access to information
32. (1) Everyone has the right of access to (a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise or protection of any rights.
It should be noted that sec 239(b)(ii) of the final Constitution expressly excludes from the ambit of "organ of state" courts and judicial officers. The right to privacy is furthermore likely to constitute an acceptable limitation on sec 32 in certain cases. See discussion of the right to privacy below. See also the Promotion of Access to Information Act 2 of 2000.
[43] De Waal J, Currie I & Erasmus G The Bill of Rights Handbook 3rd ed Juta & Co Kenwyn 2000 (hereinafter referred to as "De Waal et al") at 117.
[44] Sec 39 of the Constitution reads as follows:
Interpretation of Bill of Rights
39. (1) When interpreting the Bill of Rights, a court, tribunal or forum -
(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.
[45] Dugard in Van Wyk D et al (eds) Rights and Constitutionalism: The New South African Legal Order Juta & Co Ltd 1994 at 193 as referred to in S v Makwanyane 1995 (3) SA 391 (CC) (footnote 46 of the judgment) notes that a court may not only consider treaties to which South Africa is a party or customary rules that have been accepted by South African courts, but also international conventions, international custom, the general principles of law recognised by civilised nations, judicial decisions and teachings of the most highly qualified publicists of the various nations, etc.
[46] De Waal et al at 131.
[47] Guidelines as to interpretation and references to court cases as per De Waal et al at 131 and further.
[48] S v Zuma ao 1995 (2) SA 642 (CC) para 17. Constitutional disputes can, however, seldom be resolved with reference to the literal meaning of the provisions alone. The literal meaning should therefore not be regarded as conclusive.
[49] S v Makwanyane supra at para 9. It therefore requires a value judgment to be made about which purposes are important and protected by the Constitution and which not. The scope of the right is increased by this value-based method of interpretation (Devenish at 269). While the values have to be objectively determined by reference to the aspirations, expectations and sensitivities of the people, they may not be equated with public opinion (S v Makwanyane supra).
[50] S v Mhlungu 1995 (3) SA 867 (CC); S v Makwanyane supra; S v Zuma supra. However, the use of generous interpretation may sometimes result in a strained interpretation of the text. Where a conflict arises between a purposive interpretation and a generous interpretation, the court will always choose the purposive approach.
[51] Brink v Kitshoff NO 1996 (4) SA 197 (CC) para 40. Statements made by politicians during negotiations and the drafting process are of little value in the interpretation. This should, however, be distinguished from the preparatory work (called travaux preparatoires in the case of a treaty) to which some significance is attached, for example the reports of the various technical committees.
[52] S v Makwanyane supra, Ferreira v Levin NO 1996 (1) SA 984 (CC) para 82. Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) para 16. Contextual interpretation should be used with caution. It cannot be used to limit rights. The Bill of Rights envisages a two-stage approach: first interpretation, then limitation. The balancing of rights against each other or against the public interest must take place in terms of the criteria laid down in sec 36. In the first stage, context may only be used to establish the purpose or meaning of a provision. See Bernstein ao v Bester NNO ao 1996 (2) SA 751 (CC) at 128. Contextual interpretation may also not be used to identify and focus only on the most relevant right. In terms of constitutional supremacy, a court must test a challenged law against all possibly relevant provisions of the Bill of Rights, whether the applicant relies on them or not.
[53] Sec 16 of the Constitution provides:
Freedom of expression
16. (1) Everyone has the right to freedom of expression, which includes -
(a) freedom of the press and other media;
[54] See also sec 34 of the Constitution. Access to courts by the media and the public can be regarded as inherent in the freedom of expression.
[55] Rv Maharaj supra. Financial Mail (Pty) Ltd v Registrar of Insurance supra at 221 (in general the civil court never closes its doors to the public).
[56] Marcus G & Spitz D "Expression " in Chaskalson M, Kentridge J, Klaaren J, Marcus G, Spitz D & Woolman S Constitutional Law of South Africa Juta & Co Ltd Kenwyn 1996 (Revision Service 5 1999) (hereinafter referred to as "Chaskalson et al") at 20—6; Burchell 1-2. The three main justifications for freedom of expression can be subdivided further into two broad types -- those that stress that the freedom in question will produce desirable consequences for society (the instrumental, utilitarian or consequentialist theory) and those that stress responsibility, individual autonomy or human dignity rather than the consequences for society (the constitutive, intrinsic or non-consequentialist theory). A further subdivision can be made between those who regard freedom of expression as absolute and those who openly acknowledge that freedom of expression is relative, that is, who acknowledge that it must be balanced against the exercise of other rights.
[57] Gardener v Whitaker 1995 (2) SA 672 (E) at 687 I-J; 1994 (5) BCLR 19(E) at 34A. See also R v Keegstra [1990] 3 SCR 697 at 729, 3 CRR (ZA) 193, where it was stated that freedom of expression extends to all expression, however unpopular, distasteful or contrary to the mainstream.
[58] The democratic process is furthered by the formation of an informed citizenry.
[59] De Waal et al at 284.
[60] In Edmonton Journal v Alberta (Attorney- General) (1989) 64 DLR 4th 577 (SCC) (hereinafter referred to as "Edmonton Journal case") Wilson J explains the difference between the abstract and contextual approach to the Charter's application. He prefers the second approach. The values in conflict would therefore be the public interest in protecting the privacy of the litigants in matrimonial disputes against the public interest in protecting the right of the public to an open court process. This would be more appropriate than assessing the relative importance of the competing values in the abstract or at large.
[61] McCall I W P The Honourable Publicity in Family Law Cases:Proposals for Amendments to the Family Law Act sec 121 Report to the Attorney General for the Commonwealth of Australia April 1997 (hereinafter referred to as "McCall") at 48.
[62] Wall The Honourable Mr Justice "Publicity in Children Cases - A Personal View" March [1995] Fam Law at 137 states that a wide and well-informed public perception of how the courts operate in the field of child protection is surely in the interests of the children we seek to protect.
[63] National Media Ltd ao v Bogoshi 1998 (4) SA 1196 (SCA) at 1209H-J.
[64] In the Edmonton Journal case supra at 578 b & c it was noted that judges may disclose outmoded attitudes which may affect their decisions. The public should be assured that the judiciary is capable of overcoming its own social biases and that it reflects the values of the community.
[65] Kriegler J in Botha v Minister van Wet en Orde ea 1990 (3) SA 937 (W) at 941, referring to Richmond Newspapers Inc et al v Commonwealth of Virginia et al (US Supreme Court Reports vol 65 Lawyers 2nd ed at 973). Ackermann J in S v Leepile ao (4) 1986 (3) SA 661 (W) at 664 refers to the same quote with approval.
[66] Edmonton Journal case supra at 588-9.
[67] Neethling, Potgieter & Visser at 266.
[68] Neethling, Potgieter & Visser at 268. However, "public interest" was defined narrowly in Financial Mail (Pty) Ltd ao v Sage Holdings Ltd ao 1993 (2) SA 451 (A).
[69] For a discussion of the history of the right to free expression in South Africa and the question regarding defamation, see below para 3.42.
[70] Neethling, Potgieter & Visser at 268 and the references made therein.
[71] Burchell at 416.
[72] Neethling states at 269 that the term "public figure" should be restricted to persons who have become known in public to such an extent that they arouse public interest without necessarily being connected to a newsworthy event. In other words these people are newsworthy in themselves. See also Bell, Dewar & Hall at 79.
[73] Neethling , Potgieter & Visser at 269. Burchell at 416.
[74] As far as people holding public office are concerned, their private lives must reflect their fitness to hold such office. A person's behaviour at home can be a guide to his or her standard of morality in public life. Hansard Thursday, 3 May 1979 at 5587.
[75] Neethling, Potgieter & Visser at 269. Burchell at 416.
[76] Neethling, Potgieter & Visser at 269. Burchell at 416.
[77] One example was noted in a newspaper article by Ken Vernon, "Boesak and the Blond" Sunday Times 21 March 1999, where he states: "Ironically, one of the first people to blow the whistle on Boesak's extravagant lifestyle was Elna." Documents revealed in Boesak's fraud trial show that when she filed for divorce from Boesak in 1992, Elna gave a detailed explanation of Boesak's lifestyle and how money was spent. He was subsequently found guilty on fraud charges and is currently serving a jail sentence. The public furthermore has an interest in the fact that political figures should uphold high moral standards in accordance with their callings even where their conduct is not criminal.
[78] Burchell at 416.
[79] Mostert F "Public figures and privacy" De Rebus November 1997 (hereinafter referred to as "Mostert") at 726.
[80] McQuoid-Mason D J The Law of Privacy in South Africa Juta & Company Ltd Johannesburg 1978 (hereinafter referred to as “McQuoid Mason”) at 177.
[81] McQuoid-Mason at 180.
[82] Chaskalson et al at 20-1.
[83] Sec 36 of the Constitution provides:
Limitation of rights
36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account relevant factors, including -
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
84 De Waal et al at 132[.]
[85] S v Makwanyane ao supra at 708.
[86] S v Zuma ao supra; Chaskalson et al 12-3. Woolman S “Coetzee: The Limitations of Justice Sach’s Concurrence” 1996 SAJHR Vol 12 Part 1 99. Chaskalson et al at 20-1. S v Makwanyane supra at para 100.
[87] S v Makwanyane supra at para 102.
[88] Devenish G E "The Limitation Clause Revisited - The Limitation of Rights in the 1996 Constitution" 1998 Obiter 256 (hereinafter referred to as "Devenish") at 261.
[89] Edmonton Journal case supra at 612.
[90] Devenish at 363.
[91] Supra. This approach has been largely codified in sec 36 of the Constitution. See also Qozeleni v Minister of Law and Order ao 1994 (3) SA 625 (E) at 640; S v Manamela 2000 (5) BCLR 491 (CC) at 519G-520A. National Coalition for Gay and Lesbian Equality ao v Minister of Justice ao1999 (1) SA 6 (CC). Director of Public Prosecutions: Cape of Good Hope v Bathgate 2000(2) SA 535(C); 2000 (2) BCLR 151 (C).
[92] Burchell at 416.
[93] In Canada in the Edmonton Journal case supra Cory J, Dickson C J C and Lamer J concurred that the provisions of secs 30(l) and (2) of the Judicature Act, 1980 (RSA) (which is comparable to sec 12 of the South African Divorce Act) contravene sec 2(b) of the Canadian Charter of Rights and Freedoms, and that the legislation is not a reasonable limitation under sec 1 of the Charter.
[94] Sec 12 is to be contrasted with the flexible discretion to be found in sec 16 of the Supreme Court Act 59 of 1959.
[95] De Waal et al at 135 state that a court cannot determine in the abstract whether a limitation is reasonable or justifiable. This determination often requires evidence, such as sociological or statistical data, on the impact that the legislative restriction has on society.
[96] De Waal et al at 135.
[97] McQuoid Mason D J “Privacy" in Chaskalson et al at 18—18.
[98] Supra.
[99] Burchell at 388. In Bogoshi supra at 1212G -1213C it was stated that the test for the reasonableness of the publication demands a high degree of circumspection on the part of editors. This test includes factors such as: (a) the time and manner of the publication; (b) the “status” or degree of public concern in the information; (c) its political importance; (d) the tone of the publication; (e) reliability of the source; (f) the steps taken to verify the information, whether the person referred to has been given an opportunity to verify, comment on or reply to the allegation. In Burchell J “Media Freedom of Expression Scores as Strict Liability Receives the Red Card: National Media Ltd v Bogoshi” 1999 SALJ 1 (hereinafter referred to as "Burchell SALJ") Burchell adds two further factors for determining the bounds of unlawfulness, namely (a) the nature of the publication; and (b) ethical responsibilities laid down for the media in codes of conduct assumed voluntarily or required by statute. On the other hand Neethling, Potgieter & Visser at 271-272 and Burchell at 416 hold that the common law recognises a number of limited exceptions to the general rule of privacy. Although one is dependent on the general legal convictions of the community (boni mores) in all cases, there are certain factors, especially apparent in foreign legal sources, which can assist in the application of this criterion: (a) the fact that the plaintiff is a public figure; (b) the fact that the plaintiff is involved in a newsworthy event; (c) the extent or intensity of the violating conduct; (d) the fact that the holder of the right exposes his or her privacy to the risk of violation; (e) the motive, disposition or purpose with which the defendant acts; (f) the fact that the private facts were obtained by a wrongful act of intrusion; (g) the importance of the person involved and his or her status in society; (h) the time-span between the occurrence of a newsworthy event and the publication thereof; (i) the degree of identifiability of the person whose privacy is disclosed; and (j) the fact that the publication of private facts was contrary to a court order or statutory provision. It is submitted that such a provision reflects the boni mores and is consequently in the public interest.
[100] Burchell SALJ at 16 submits that it is clear that the common law of privacy in South Africa will still provide the lion's share. In Bernstein ao v Bester ao NNO supra, Ackermann J relied heavily on common-law interpretations of the scope of privacy in deciding whether secs 417 and 418 of the Companies Act 61 of 1973 infringed sec 13 of the Constitution of the Republic of South Africa, Act 200 of 1993 (hereinafter referred to as "the Interim Constitution"), which protected the right to privacy and the right not to be subjected to the seizure of private possessions or the violation of private communications (as does sec 14 of the Constitution). McQuoid Mason states in Chaskalson at 18—2 that the courts will inevitably retain those existing common-law actions which are in harmony with the values of the Constitution.
[101] Supra. See also Chaskalson at 18 —1 and Burchell at 373.
[102] Act 61 of 1973.
[103] Burchell at 384, quoting Bernstein v Bester supra.
[104] Sv Makwanyane supra para 104. See above at para 3.27.
[105] S v Manamela supra at 508E and sec 36(1) of the Constitution.
[106] S v Makwanyane ao supra at para 104. S v Manamela ao supra at 508B.
[107] De Waal et al at 143.
[108] The specific textual enumeration of the press and other media in sec 16 of the Constitution signals the importance which the guarantee ascribes to the role of these institutions in protecting and contributing to an open and democratic society. Chaskalson et al 20—20 and references therein to Government of the Republic of South Africa v Sunday Times Newspaper ao 1995 (2) SA 221 (T) at 227I-228A.
[109] Burchell SALJ at 4.
[110] Burchell SALJ at 1.
[111] In Pakendorf ea v De Flamingh 1982 (3) SA 146 (A) the Appellate Division interpreted the common law to impose strict (no-fault) liability on the mass media for defamation, not including the individual in this strict regimen. A further judicial blow to freedom of expression was delivered when in Neethling v Du Preez ao: Neethling v The Weekly Mail ao 1994 (1) SA 708 (A) the Appellate Division saddled the defendant (including the media) with the burden of proving the set defences to a defamation action on a preponderance of probabilities.
[112] Supra; It held that the approach in Pakendorf was clearly wrong and must be overruled. The strict liability rule for defamation was replaced with the rule that the crucial test was whether the publication was reasonable.
[113] Burchell at 4; See especially Cameron J in Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W); 1996 (6) BCLR 836 (W). Joffe J in Government of the Republic of South Africa v Sunday Times Newspaper supra at 227-8, cited with approval by Hefer JA in National Media Ltd v Bogoshi supra.
[114] For instance, art 19 of the United Nations Universal Declaration of Human Rights, 1948 stresses the right "to receive and impart information and ideas through any media...."; article 9 of the African Charter on Human and People’s Rights, 1981 provides for the "right to receive information". See also art 9 of the International Covenant on Civil and Political Rights, 1966, art 13 of the American Convention on Human Rights and sec 16 (1)(b) of the Constitution. See also art 21(1)(a) of the Constitution of the Republic of Ghana 1992.
[115] Supra at 584a.
[116] See however the discussion above in para 3.11 regarding a citizen's interest in knowing how courts deal with matrimonial disputes.
[117] Supra.
[118] Ibid 855-6. Cameron J referred to the following argument of Ronald Dworkin in a Matter of Principle 1985 386-7: "But if free speech is justified on principle, then it would be outrageous to suppose that journalists should have special protection not available to others, because that would claim that they are, as individuals, more important or worthier of more concern than others."
[119] Burchell states at 17 that while freedom of expression is a vital component of both the democratic process and individual self-fulfilment, it is nevertheless merely a facet of human dignity. To elevate freedom of expression to an absolute right or even to a position of pre-eminence in a hierarchy of rights is to distract attention from the true origin of the right freely to express one's views or opinions through words or conduct. It is part of the dignity that is accorded to thinking and sentient human beings.
[120] Chaskalson at 20—20; Burchell at 5 and the references made there. In Neethling v Du Preez ao: Neethling v The Weekly Mail ao supra at 777G-H Hoexter JA stated : "At common law there is no general "newspaper privilege". In Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1993 (3) SA 579 (A) Grosskopf JA notes that "...freedom of speech can never be an absolute". For the opposite view see Chaskalson at 20—20.
[121] Burchell at 18.
[122] Mostert at 726.
[123] De Waal et al at 145.
[124] Sec 10 of the Constitution provides
10. Human dignity
Everyone has inherent dignity and the right to have their dignity respected and protected.
[125] Sec 14 of the Constitution provides:
14. Privacy
Everyone has the right to privacy, which includes the right not to have -
[126] See also sec 8 (3) of the Child Care Act 74 of 1983 which deals with the rights of children in children's courts. It reads as follows:
No person shall publish in any manner whatever any information relating to proceedings in a children's court which reveals or may reveal the identity of any child who is or was concerned in those proceedings: Provided that the Minister or the commissioner who presides or presided at those proceedings may authorize the publication of so much of the said information as he may deem fit if the publication thereof would in his opinion be just and equitable and in the interest of any particular person.
[127] S v Makwanyane supra at para 144.
[128] In S v Makwanyane supra (para 328) O'Regan J holds that the recognition of a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right is therefore the foundation of many of the other rights that are specifically entrenched in the Bill of Rights.
[129] In S v Makwanyane supra (para 144) Chaskalson P states that the rights to life and dignity are the most important rights, and the source of all other personal rights in the Bill of Rights. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others". See also Devenish at 369.
[130] The then South African Appellate Division and the Constitutional Court have regarded privacy as a part of the individual's right to dignity or dignitas. See Jansen van Vuuren NNO v Kruger 1993 (4) SA 842 (A). Neethling, Potgieter & Visser at 37 holds a dissenting view that in the case of an infringement of privacy, the question whether someone's good name has been infringed is irrelevant. Burchell SALJ at 16 is of the opinion that the balance to be struck between one person's reputation or dignity and another's freedom of expression (or for that matter under the Constitution in South Africa) is a true balance between equally important facets of human dignity.
[131] Burchell at 367.
[132] Burchell, referring to Privacy Vol I and II edited by R Wacks in The International Library of Essays in Law and Legal Theory (1993), states at 365 that the vagueness of the concept has actually undermined the importance of the value of privacy and impeded its effective legal protection.
[133] McQuoid-Mason at 11.
[134] Neethling, Potgieter & Visser at 36. For instance:
Good name: The public disclosure of embarrassing private facts (which under American law falls within the sphere of privacy protection) will infringe someone’s good name if the esteem with which he is held in society is diminished. Privacy, on the other hand, is violated by the disclosure of facts contrary to the individual's determination and will for privacy. Such facts need not be defamatory in nature. In the case of an infringement of privacy, the question whether someone's good name has also been infringed is irrelevant.
Dignity: In South African case law privacy is often incorrectly identified with dignity. An infringement of dignity plays no role in deciding whether there has been a violation of privacy. The same act may, however, violate privacy as well as dignity. Reference is made to cases where the right to privacy has been acknowledged as an independent personality right: Jansen van Vuuren NNO v Kruger supra at 849; Jooste v National Media Ltd ea supra; Financial Mail (Pty) Ltd ao v Sage Holdings Ltd ao supra; Motor Industry Fund Administrators (Pty) Ltd ao v Janit ao, supra (confirmed on appeal: 1995 (4) SA 293 (A)); O'Keeffe v Argus Printing and Publishing Co Ltd ao 1954 (3) SA 244 (C); Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 (4) SA 376 (T). Dignitas was restricted to dignity or honour as a personality interest and negated the independent existence of a right to privacy and that insult consequently forms an element of this iniuria. The equation of privacy and dignity should be rejected. It is not only unacceptable from a theoretical perspective, but is also contrary to both Roman and Roman-Dutch law.
[135] Neethling, Potgieter & Visser at 36 give the following definition: Privacy is an individual condition of life characterised by exclusion from publicity. This condition includes all those personal facts which the person himself at the relevant time determines to be excluded from the knowledge of outsiders and in respect of which he evidences a will for privacy.This definition was accepted by Olivier J in Jooste v National Media Ltd 1994 (2) SA 634 (K) at 645-F. See Neethling J & Potgieter JM “Aspekte van die Reg op Privaatheid: Jooste v National Media ea 1994 (2) SA 634 (C); Motor Industry Fund Administrators (Pty) Ltd v Janit 1994 (3) SA 56 (W)” 1994 THRHR 703 (hereinafter referred to as "Neethling & Potgieter") at 707.
[136] S v A ao 1971 (2) SA 293 (T) at 297: '[T]here can be no doubt that a person's right to privacy is one of "...those real rights, those rights in related to personality, which every free man is entitled to enjoy".
[137] In terms of the common law every person has personality rights such as the right to dignity, autonomy and bodily integrity (Stoffberg v Elliot 1923 CPD 148; Lymbery v Jefferies 1925 AD 235; Lampert v Hefer 1955 2 SA 507 (A); Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T)). See also Neethling at 38. For a common-law action for invasion of privacy based on the actio iniuriarium to succeed, the plaintiff must prove the following essential elements: (i) wrongfulness (ii) intention (animus) and (iii) impairment of the plaintiff’s personality rights (in this instance, privacy). See Chaskalson at 18—2 and the references there. Marcus & Spitz in Chaskalson at 20—60 states that sec 8 puts it beyond doubt that fundamental rights may be invoked in disputes between private parties which depend for their determination on the rules of the common law.
[138] Secs 14 (a), (b) and (c) seek to protect an individual from unlawful searches and seizures. It is only sec 14(d) which accommodates a broader protection of privacy approaching that covered by the common law actio iniuriarum in South African law.
[139] See discussion above para 3.37.
[140] Article 12 of the United Nations Universal Declaration of Human Rights, 1948 provides:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
According to Burchell at 371, the word 'arbitrary' points towards some acceptance that certain invasions of privacy may be regarded as reasonable and others as unreasonable. In fact, the Universal Declaration recognizes limits to the exercise of rights. These limits are defined as those 'determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society' (Article 29).
[141] Article 16 of the United Nations Convention on the Rights of the Child, 1989 provides:
1. No child shall be subject to arbitrary or unlawful interference with his or her privacy, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
2. The child has the right to the protection of the law against such interference or attacks.
[142] Article 8 of the European Convention on Human Rights and Fundamental Freedoms provides:
1. Everyone has the right to respect for privacy and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of this rights and freedoms of others.
See also the International Covenant on Civil and Political Rights, 1966 (art 17); the European Convention for Human Rights and Fundamental Freedoms (art 8), the American Convention on Human Rights (art 11), and the American Declaration on the Rights and Duties of Man (arts 5,9 and 10) as referred to by McQuoid Mason above.
[143] Neethling , Potgieter & Visser at 33.
[144] Neethling, Potgieter & Visser at 35.
[145] Neethling, Potgieter & Visser at 37.
[146] Prosser (as referred to by Burchell at 395) identifies four categories, which are not necessarily watertight or exhaustive, as appropriate for American law: (1) unreasonable intrusion into the private sphere; (ii) public disclosure of private facts; (iii) appropriation of name or likeness; and (iv) false light cases.
[147] Financial Mail (Pty) Ltd ao v Sage Holdings Ltd ao supra at 462F. Myburg J in Motor Industry Fund Administrators (Pty) Ltd ao v Janit ao supra at 60H held that an invasion of the right to privacy may take two forms: (i) the unlawful intrusion upon the privacy of another; and (ii) the unlawful publication of private facts about a person. See also Bernstein ao v Bester NO ao supra at 789; McQuoid-Mason at 99; Chaskalson, at 18—1and Chaskalson at 18—8.
[148] Chaskalson at 18—11.
[149] McQuoid-Mason at 99. Neethling, Potgieter & Visser at 333: "Accordingly, privacy may only be infringed by unauthorized acquaintance by outsiders with the individual or his personal affairs”.
[150] Mc Quoid-Mason at 170. See also the categories of invasions arising from publication of private facts identified by Prosser as referred to by McQuoid Mason at 170: (i) the contents of private correspondence; (ii) debts; (iii) physical deformities and health; (iv) life-style; (v) childhood background; (vi) family life; (vii) past activities; (viii) embarrassing facts; (ix) confidential information; and (x) information stored in data banks.
[151] Case ao v Minister of Safety and Security ao; Curtis v Minister of Safety and Security ao 1996 (3) SA 617(CC) at para 91.
[152] Edmonton Journal case at 590.
[153] In the Edmonton Journal case the court discussed the possible objectives of this type of legislation. It states that the aim of safeguarding public morals has not remained pertinent in today's society. Publication of proceedings would furthermore have no effect on access to the courts since the departure from the fault-based divorce has in large measure eliminated the legal stigma attached to marriage breakdown. It is only the third objective, namely the protection of the privacy of individuals, which indeed relates to a pressing and substantial concern in a democratic society.
[154] McKerron R G The Law of Delict 7th ed Juta & Co Ltd Cape Town 1971 at 55, as referred to by McQuoid-Mason at 183.
[155] Argyle v Argyle [1965] 1 All ER 611, 620 at 623 as referred to by Mc Quoid-Mason at 183. See however the Younger Report (Cmnd 5012), July 1972 para 113: "Privacy can be used as a cloak to conceal undesirable activities: it may be easier to hide physical and sexual abuse which takes place out of sight in the home, than crimes of violence in public".
[156] Wall at 137.
[157] Mr G J Van Zyl on behalf of the Head of the Office of the Family Advocate, Pretoria in a letter to the Commission dated 20 December 1999. See also letter received from Mr L C R De Welzim, Magistrate Carolina dated 17/12/1999, in which he states that sec 12 could cause intense harm and injury to children if all the dirty laundry of a divorce action were made public.
[158] Wall at 137.
[159] Burchell at 394. Chaskalson at 18—1. Neethling & Potgieter at 707.
[160] Bernstein v Bester supra .
[161] De Waal et al at 147; S v Manamela ao supra at 508B.
[162] S v Manamela supra at 508G; De Waal et al at 148.
[163] S v Manamela supra at 508G.
[164] See the comparable Edmonton Journal case at 593.
[165] See eg Dagenais v Canadian Broadcasting Corporation (1994) 120 DLR 4th 12 (SCC). See also Richmond Newspapers Inc et al v Commonwealth of Virginia et al 448US 555, 65 L Ed 2d 973, 100 S Ct 2814 (1980), a decision that has been referred to with approval in our law ( S v Leepile (4) supra) and Botha v Minister van Wet en Orde supra at 941B-H).
[166] For a discussion of this principle see Case v Minister of Safety and Security; Curtis v Minister of Safety and Security supra. See also Coetsee v Government of the Republic of South Africa; Matiso v Commanding Officer, Port Elizabeth Prison 1995 (4) SA 631 (CC), 1995 (10) BCLR 1382 (CC) at 643C.
[167] S v Manamela supra at 528H; De Waal et al at 149.
[168] In S v Manamela supra at 529 it was noted that in assessing the effectiveness of alternative methods a margin of discretion is given to the state. The role of the court is not to second-guess the wisdom of policy choices made by legislators. It should take care not to dictate to the legislature unless it is satisfied that the mechanism chosen by the legislature is incompatible with the Constitution.
[169] See discussion of sec 16 in para 5.3 below.
[170] See discussion in para 5.11 below.
[171] The Sexual Offences Act 23 of 1957 prohibits certain sexual offences. A criminal trial for such an offence is likely to involve the leading of sensitive evidence. However, the Sexual Offences Act does not make provision for a prohibition on publication.
[172] Act 74 of 1983.
[173] Act 99 of 1998.
[174] See discussion in Chapter 4 for the position in Canada.
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