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5.1 Taking into account the points raised in Chapters 2 and 3, one could argue that sec 12 is indeed unconstitutional and in some instances ineffectual. Sec 12 infringes the right to freedom of expression as set out in sec 16 of the Bill of Rights. At the same time, however, the section embodies the laudable principle of the protection of men, women and children against unwarranted invasion of their privacy. This right to privacy is upheld in sec 14 of the Constitution. In an attempt to find a balance between these two very important rights, the Commission therefore offers four possible options for reform. It should however be noted that the effectiveness of some of these options would depend on the extent to which the foreign media do in fact publicise South African divorce proceedings. Comment is invited from readers in this regard.
5.2 Option 1 makes provision for the repeal of sec 12 of the Divorce Act 70 of 1979. One would thus revert to the position prior to the 1979 Act, where there would therefore be no general prohibition on the publication of divorce proceedings. Any person wanting to prevent the publication of divorce proceedings would have to request the court to close the proceedings in terms of sec 16 of the Supreme Court Act 59 of 1959.[222] This raises the question not only of press freedom, but also that of access to open courts.
5.3 Sec 16 provides that judicial proceedings[223] should be carried out in open court except in special circumstances. The section also preserves all provisions for privacy made in other legislation.[224]
5.4 The court must in each case decide whether any special circumstances exist so as to justify the closure [225] of the proceedings.[226]
5.5 Although each case will be different,[227] the following arguments have been advanced by the courts in this regard:
(a) In Du Preez v Du Preez: Standard Bank of SA Intervening[228] Hiemstra J stated that a case would qualify as "special" where the administration of justice would be rendered impracticable by the presence of the public.[229] In interpreting this guideline he stated furthermore that special cases should involve the public interest and would seldom be cases between subjects concerning private interests.[0]
(b) Coetzee J followed Du Preez in Economic Data Processing (Pty) Ltd ao v Pentreath[231] in refusing to hear an Anton Piller application in camera, stating that a case would not qualify as “special” unless the public interest demanded it and that a private matter between subjects concerning private rights was not such a case.
(c) However, in W v W [232] Nestadt J considered to be a special circumstance the fact that a plaintiff in a divorce case would be seriously prejudiced and embarrassed if certain evidence led in the case were published, especially since the interests of the community did not demand that the normal rule apply.
(d) Van Dijkhorst J concluded in Cerebos Food Corporation Ltd v Diverse Foods SA (Pty) Ltd [233] that special cases would include both circumstances where private rights only are involved and others where the public has an interest. The emphasis should not, on the one hand, fall on the right of the public to know or, on the other hand, on the right of the private individual not to be embarrassed, but rather on the proper administration of justice. Should the administration of justice be rendered impracticable or materially hampered by the presence of the public, that would constitute a special case as envisaged by the statute.[234]
(e) In A v R Kinder- en Kindersorgvereniging [235] in an application for proceedings to be held in camera, Southwood J reiterated that proceedings will only be held behind closed doors in highly exceptional circumstances. He referred to the abovementioned cases, quoting Botha[236] and Cerebos[237] with approval. The court, however, distinguished W v W[238] from the present case since there were no questions of principle involved in that case. Because questions of principle were at stake in the present case,[239] he ordered the case to be heard in open court. [240]
(f) In S v Sexwale[241] it was found that a witness's fear of reprisals was not in itself a ground for ordering a hearing in camera. As stated In Botha v Minister of Wet en Orde,[242] nor was the fact that the hearing of a case in open court would lead to great public debate and speculation. In fact, it is desirable in such cases that the public sees how the courts deal with controversial and sensitive matters.
(g) The Appellate Division has not ruled on this matter except for deciding that argument should be oral and in open court. [243]
5.7 It would seem that the decision as to whether a case is special is at this stage in the discretion of the presiding judge, who will bear in mind that the general rule that all cases must be heard in open court should not lightly be departed from.[244]
5.8 On a practical note, counsel is required to furnish a certificate stating that in his or her personal opinion the matter is one in which special circumstances exist, rendering it such that it should be heard in camera, and giving reasons for that view.[245] In furnishing such certificate, counsel expresses a professional opinion and is not merely making a submission on behalf of his or her client.[246]
5.9 The practical value of granting or withholding the order has to be considered as well.[247]
5.10 In choosing this option the fact that there would be no general restriction on publication and that the proceedings would only occasionally be closed to the public to take account of the privacy/dignity of the parties might have a positive effect as far as the right to freedom of speech is concerned. This procedure would also be more effective in protecting the privacy of the parties than the current sec 12. Ad hoc decisions are, however, not conducive to legal certainty.
5.11 If this option is chosen, the importance of self-regulation by the media should furthermore be stressed.[248] Ethical responsibilities already laid down[249] for the media in codes of conduct assumed voluntarily[250] or required under statute[251] could be developed or expanded upon. The law could, in protecting the privacy of individuals, aim to incorporate what journalists, editors and other media personnel themselves regard as high standards of reporting in order to re-establish respect for legal principles.
.
5.10 Sec 12 may be amended to allow a court the discretion to make an order preventing any person from publishing any particulars of a divorce action or any information or evidence which comes to light in the course of such an action. Such order would not apply for the purposes of the administration of justice, to 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 to the publication of information for the advancement of or use in a particular profession or science.
5.11 The proposed amendment of sec 12 under option two could possibly read as follows:
12. Power of the court to make an order preventing publication of any particulars of divorce action
(1) The court may make an order preventing any person from making known in public or publishing for the information of the public or any section of the public any particulars of a divorce action or any information or evidence which comes to light in the course of such an action.
(2) An order made under subsection (1) shall not apply with reference to the publication of particulars or information or evidence-
(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 or evidence after such an order was made by the court shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year or both such fine and such imprisonment.
5.15 In this option there is no general prohibition on the publication of divorce proceedings. However, the court is allowed to impose a restriction where appropriate. It differs from option one and three in that it is only publication of information that is prohibited, and that the proceedings themselves are not closed.
5.16 Sec 12 of the Divorce Act 70 of 1979 may be amended to allow a court the discretion to make an order granting leave to any party to publish any particulars of a divorce or any information or evidence which comes to light in the course of such an action. The court will in exercising its discretion take into consideration the provisions of sec 28(2) of the Constitution, which specifically protect the rights of children.
5.17 There will still be a general prohibition on divorce proceedings, but the court can be expected to lift the prohibition in particular cases.
5.18 Any person should be allowed to publish names of the parties, the date on which a divorce action is pending in a court of law and the judgment or order of the court, unless the court orders otherwise. If the court is of the opinion that it would not be in the interests of the child or spouses to publish the abovementioned, it may prohibit publication. The court which hears the matter will have a discretion to prohibit or allow publication.
5.19 The proposed amendment of sec 12 under option three is as follows:
12 Limitation of publication of particulars of divorce action
(1). (a) Subject to the provisions of subparagraph (b), no person shall publish for the information of the public or any section of the public any particulars of a divorce action or any information or evidence which comes to light in the course of such an action, except with the leave of the court which heard the proceedings.
(b) Notwithstanding the provisions of subparagraph (a), any person may, unless the court orders otherwise, publish in relation to a divorce action the following particulars:
(i) The names of the parties to a divorce action;
(ii) That a divorce action between the parties is pending in a court of law; and
(iii) The judgment or order of the court.
(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 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 or evidence shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year or both such fine and such imprisonment.
5.20 In this respect the general rule will be that there is a prohibition on publication. If someone wants to publicise divorce proceedings then such person has to ask the court for permission. This means that the court can be asked to lift the prohibition in particular cases.
5.21 The Commission received a proposal that divorce proceedings should be publicised without divulging the identity of the parties, especially where minor children are involved.[252] The facts of the case and court decisions would therefore be published without mentioning the names of the parties, their residential or business addresses, the suburb, town, township or village and any other information which would make it easy to identify the parties. The name of the presiding officer and the court where the case was held would, however, be allowed to be publicised. This proposal is in accordance with the position in Australia.[253]
5.22 In S v Citizen Newspapers (Pty) Ltd ea, S v Perkorpoasie van SA Bpk ea[254] the Appellate Division found that sec 154(3) of Act 51 of 1977, which prohibits the identification of a child, envisaged both direct identification and identification by inference, provided the inference is clear. The court found that the compilers of the report in this case had unequivocally associated the schoolboy accused with one H, the son of a South African ambassador who had been abducted, and that the conclusion which would be drawn was a simple step in a logical inference.[255]
5.22 There will of course be cases in which the notoriety of the parties is such that anonymity will be impossible. Such cases in the field of child protection will, however, be very rare and should not detract from the general principle. In extreme cases the judge may then order that the proceedings be held in private.[256] It could also be argued that the public has an interest in so far as the status of the parties is concerned, and should therefore be informed accordingly.
5.23 The proposed amendment of sec 12 under option four will be as follows:
12. Restriction on publication of court proceedings
(1) A person who publishes in a newspaper or periodical publication or by radio broadcast or television, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
is guilty of an offence punishable, upon conviction, by imprisonment for a period not exceeding one year.
(2) Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:
(a) it contains any particulars of:
(i) the name, title, pseudonym or alias of the person;
(ii) the address of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii) the physical description or the style of dress of the person;
(iv) any employment or occupation engaged in, profession practised or calling pursued by the person, or any official or honorary position held by the person;
(v) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi) the recreational interests or the political, philosophical or religious beliefs or interests of the person; or
(vii) any real or personal property in which the person has an interest or with which the person is otherwise associated;
being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.
(b) in the case of a broadcast or televised account, it is accompanied by a picture of the person; or
(c) in the case of a broadcast or televised account, it is spoken in whole or in part by the person and the person's voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.
[222] Sec 16 of the Supreme Court Act 59 of 1959 provides:
16. Proceedings to be carried on in open court
Save as is otherwise provided in any law, all proceedings in any court of a division shall, except in so far as any such court may in special cases otherwise direct, be carried on in open court.
[223] Including argument by or on behalf of the litigants; See Transvaal Industrial Foods Ltd v BMM Process (Pty) Ltd supra.
[224] Examples are sec 8 of the Child Care Act 74 of 1983, sec 10(4) of the Maintenance Act 99 of 1998, sec 153 of the Criminal Procedure Act 51 of 1977 and sec 12 of the Divorce Act 70 of 1979.
[225] When the proceedings are closed only the parties to the action, witnesses, court officials and any person allowed by the court will be present.
[226] Erasmus H J, Farlam P B J, Fichardt L F & Van Loggerenberg D E Superior Court Practice (formerly Nathan Barnett and Brink) Juta & Co Ltd Kenwyn 1994 (Revision Service 13 2000) (hereinafter referred to as "Erasmus et al") at A1-17. Van Winsen L de V, Cilliers AC & Loots C The Civil Practice of the Supreme Court of South Africa (edited by Dendy M) 4th ed Juta & Co Ltd Kenwyn 1997 at 659 and 1101.
[227] In Cerebos Food Corporation Ltd v Diverse Foods SA (Pty) Ltd ao 1984 (4) SA 149 (T) Van Dijkhorst J stated at 158: “There is no need, and it would be inadvisable, to define those circumstances which could be described as special. They will vary from case to case”.
[228] 1976 (1) SA 87 (W) at 88.
[229] Hiemstra J in Du Preez v Du Preez: Standard Bank of SA Intervening supra, with reference to the passages in Halsbury, Laws of England: Halsbury Vol 9 345 para 813 and Halsbury Vol 16 440 para 795.
[230] Hiemstra J in Du Preez v Du Preez: Standard Bank of SA Intervening supra refused to hear an application for final sequestration in camera since neither the interests of the state nor those of the public had been involved.
[231] 1984 (2) SA 605 (W) at 607.
[232] W v W 1976 (2) SA 308 (W) at 310. See Erasmus et al at A1S18.
[233] Supra.
[234] Van Dijkhorst J did not subscribe to the view expressed by Coetzee J in Economic Data Processing (Pty) Ltd v Pentreath supra since it is not supported by any authority. In W v W supra Nestadt J considered it a special circumstance that evidence of a sex-change operation would be led in a divorce action and that such evidence would embarrass a witness.
[235] 1996 (1) SA 649 (T) at 659.
[236] Supra.
[237] Supra.
[238] Supra.
[239] In A v R Kinder- en Kindersorgvereniging the court considered the effect of the publication of the proceedings on the position and future existence of the relevant welfare organisation in the community.
[240] He directed that in order for the daughters of the applicant to be protected the Registrar had to file the court file in a place to which the public did not have access. He furthermore directed that the Registrar, the applicant and the respondent were not allowed to disclose the identities of the applicant and the respondent to any other person. (At 660D-E).
[241] S v Sexwale ao (3) 1978 (3) SA 427 (T).
[242] Botha v Minister van Wet en Orde ea supra.
[243] See Transvaal Industrial Foods Ltd v BMM Process (Pty) Ltd supra.
[244] Cerebos Food Corporation Ltd v Diverse Foods SA (Pty) Ltd ao supra at 158; Botha v Minister van Wet en Orde ea supra at 940.
[245] Corbett JA in Universal City Studios Inc ao v Network Video (Pty) Ltd 1986 (2)SA 734 (A) at 755E approved this suggestion made by Van Dijkhorst in Cerebos supra at 159E-H. Also confirmed in Jafta v Minister of Law and Order ao 1991 (2) SA 286 (A) at 291.
[246] This suggestion arose because of the fact that in cases where an application is made for a matter to be heard in camera a decision can, theoretically, only be reached upon this prayer after debate thereon in open court. This procedure renders the order, should it be granted, ineffective. In practice the matter is heard in Chambers and no outsider is present, though the public has a right to be there. To obviate this difficulty a rule has been laid down in England requiring a certificate by counsel that in his personal opinion the matter is one in which special circumstances exist, rendering it such that it should be heard in camera, and giving the reasons therefore. Upon this certificate the court then acts and closes its doors before the commencement of the application. See Practice Note In re Camera Appeals [1982] 3 All ER 924.
[247] In S v Sexwale ao (3) supra at 430 Davidson J was of the opinion that if the proceedings were held in camera it would not secure the witness’s safety.
[248] This was also the option advocated by Prof Kobus van Rooyen, former Chairperson of the Appeals Board on Publications as reported in Rapport 30//11/97 supra: "Wanneer die media toegelaat word om sy eie bakens binne sy eie kodes te stel, vervang eie verantwoordelikheid die reaksie teen oordadige wetgewing".
[249] Burchell SALJ at 8.
[250] For example, the Code of Conduct of the Press Ombudsman of South Africa and the Editorial Code of the South African Broadcasting Corporation.
[251] The code of conduct laid down by the Independent Broadcasting Authority Act 153 of 1993.
[252] Ms Zelda Moletsane, Acting Vice-President, Central Divorce Court in a letter to the Commission dated 4/1/2000. She stated that to publicise the proceedings whilst protecting the identity of the parties will serve the purpose of raising awareness to the public about what happens in a divorce case and to sensitise civil society about what they need to know in terms of substantive law and procedure on divorce; that child custody and access are handled in the best interests of the child, etc. The community will also be able to make informed decisions when faced with a crisis involving a marital breakup. This promotes access to justice in the communities we serve. This would furthermore be relevant where fraud or other unlawful elements are involved or when a matter involves facts which will require an analysis of the Constitution or human rights instruments.
[253] See the discussion of the position in Australia in Chapter 4 above, as well as the criticism expressed in this regard.
[254] 1981 (4) SA 18 (A). Two newspapers and their editors were found guilty of contravening sec 154(3) of Act 51 of 1977 in publishing information which revealed or may have revealed the identity of an accused under the age of 18 years.
[255] Burns YM doctorate June 1984 at 412.
[256] Wall at 138.
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