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CHAPTER 1

INTRODUCTION

1.1 On 23 January 1998 the South African Law Commission considered and approved the inclusion in its programme of an investigation entitled "Publication of divorce proceedings (Sec 12 of the Divorce Act of 1979 (Act no 70 of 1979))". ^[1]

1.2 The purpose of the investigation is to review sec 12 of the Divorce Act,^[2] especially in so far as its constitutionality is concerned,^[3] in order to establish whether the section should be repealed or amended.

1.3 Sec 12 ^[4] prohibits publication of any particulars of a divorce action or any information which comes to light in the course of such an action other than the publication of the names of the parties to a divorce action, the fact that a divorce action between the parties is pending in a court of law, and the judgment or order of the court. The prohibition does not apply to the publication of particulars or information for the purposes of the administration of justice, in a bona fide law report, or for the advancement of or use in a particular profession or science.^[5]

1.4 Since 1979, when this provision was enacted, many important developments in the media have taken place in South Africa and abroad which have had an impact on the effect of sec 12. The Internet, CNN and foreign newspapers have become freely available in South Africa, a fact which has ensured that the country is no longer isolated from the outside world.

1.5 The South African media are, in terms of sec 12, prohibited from disclosing any facet of divorce proceedings in this country, apart from the limited aspects referred to above. However, since the provision does not have extra-territorial operation, the foreign media who are allowed to attend the proceedings are unrestricted in their reportage of South African divorce proceedings. Since South African citizens have access to the foreign media and the press, the initial purpose of the prohibition is defeated.^[6]

1.6 There are furthermore clear indications that at present the South African media are not complying with sec 12 of the Divorce Act.

1.7 An important reason why the section is not adhered to is that it is seen as being unconstitutional.^[7] South Africa has a Constitution ^[8] with a Bill of Rights which entrenches, inter alia, the right to freedom of speech, freedom of information and the rights to privacy and dignity. These rights are interactive and have to be balanced. Since sec 12 is a pre-constitutional statutory provision, its constitutionality needs to be considered in terms of these rights.

1.8 An important point to note is that sec 12 gives no discretion to the court to determine whether or in what respects the case should be held in camera or whether media disclosure should be permitted or prohibited.

1.9 The question which arises is therefore whether, in regulating the publication of "particulars" of divorce proceedings in terms which appear sweeping and inflexible, sec 12 is constitutional; and if not, what reform should be undertaken.

1.10 The question is a pressing one. It seems undesirable that legitimate areas of non-disclosure (such as aspects involving the interests of minor children) should be endangered by the current non-compliance with the provision, and at the same time that Acts of Parliament should be viewed as unenforceable and accordingly safely to be flouted.

1.11 In this paper the present position regarding the publication of divorce proceedings in South Africa will be discussed, the constitutionality of sec 12 of the Divorce Act will be considered and the position in other foreign jurisdictions investigated. Recommendations will be made and options for reform identified. The purpose is to elicit responses which could serve as a basis for the Commission's deliberations. The views, conclusions and recommendations which follow should not, at this stage, be regarded as the Commission's final views.

[1] Sixty First Meeting of the Working Committee held on 23 January 1998. The Minister of Justice authorised the inclusion of the investigation on 30 January 1998.

[2] Act 70 of 1979 (hereinafter referred to as "the Divorce Act").

[3] See discussion in Chapter 3 below.

[4] For a full discussion of sec 12, see Chapter 2 below.

[5] See further Burchell J Personality Rights and Freedom of Expression: The Modern Actio Injuriarum Juta & Co Ltd Kenwyn 1998 (hereinafter referred to as “Burchell”) at 425.

[6] See the excerpt from an editorial that appeared in Beeld, 20/3/96, as referred to in Neethling J "Die Reg op Privaatheid, die Pers en Artikel 12 van die Wet op Egskeiding 70 van 1979: National Media Limited v Jooste 1996 (3) SA 262 (A)" 1996 THRHR 528 (hereinafter referred to as "Neethling") at 532 (our translation from the Afrikaans):

"Mandela case

The Divorce Act provides that no information which is disclosed in the course of divorce proceedings may be published. We (Beeld) approached our media report on the Mandela divorce from that viewpoint and with the necessary legal advice attempted to provide our readers with the necessary information.

The majority of the South African media, however, decided to report extensively on the case and in some instances even reported verbally on the proceedings. The SABC - the public broadcaster - reported intimate details of the case to millions of people in its news bulletins.

As a result of modern technology South Africa is no longer excluded from the rest of the world. International radio and television networks, also broadcasting to South Africa, published the evidence in court through their news bulletins.

If the South African media had reported on the case in accordance with the provisions of the Act, the foreign media services such as BBC and CNN would have had an unfair advantage over their South African counterparts.

It is therefore possible for millions of people in other countries to know what transpires in a court in South Africa while South African citizens are kept in the dark by their own media services. This is an absurd situation in which it is difficult to reconcile the law with developing technology..."

[7] Phillipa Garson "Mandela v Mandela" Mail and Guardian 22/3/96.

[8] The Constitution of the Republic of South Africa, Act 108 of 1996 (hereinafter referred to as "the Constitution") which came into operation on 4 February 1997.