SUMMARY OF RECOMMENDATIONS

The South African media are, in terms of sec 12 of the Divorce Act 70 of 1979, prohibited from publishing any particulars of a divorce action or any information which comes to light in the course of such an action other than 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.

However, since the provision does not have extra-territorial operation, the foreign media who are allowed to attend proceedings in courts 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.

There are furthermore clear indications that at present the South African media are not complying with sec 12 of the Divorce Act. An important reason why the section is not adhered to is that it is seen as being unconstitutional. South Africa has a Constitution 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. Sec 12 provides 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.

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.

The Commission's investigation so far has revealed four possible options for reform:

Option one makes provision for the repeal of sec 12 of the Divorce Act. One would thus revert to the position prior to the 1979 Act, where there would 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.

Should this option be chosen, the importance of self-regulation by the media would have to be stressed. Ethical responsibilities already laid down for the media in codes of conduct assumed voluntarily or required by statute 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 enhance respect for legal principles.

The second option would make provision for the amendment of sec 12 of the Divorce Act so that there would be no general prohibition on publication of proceedings, but in terms of which a court would have 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 or to information published for the advancement of or use in a particular profession or science.

The third option would be the amendment of sec 12 of the Divorce Act to allow a court the discretion to make an order to lift the general prohibition on publication and to grant 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 would in exercising its discretion take into consideration the provisions of sec 28(2) of the Constitution, which specifically protect the rights of children.

Option four would entail the amendment of sec 12 to ensure the anonymity of parties. 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 or 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 could, however, be publicised.

TABLE OF CONTENTS

The page numbers refer to the hard copy and may differ in electronic versions

Page

INTRODUCTION -ii-

PREFACE -iii-

SUMMARY OF RECOMMENDATIONS -iv-

LIST OF SOURCES -viii-

TABLE OF CASES -xi-

SELECTED LEGISLATION -xiv-

CHAPTER 1 - INTRODUCTION 1

CHAPTER 2 - THE PRESENT POSITION IN SOUTH AFRICA 4

CHAPTER 3 - THE CONSTITUTIONAL IMPLICATIONS OF SECTION 12

OF THE DIVORCE ACT 70 OF 1979 11

a) Introduction 11

b) Content and scope of the right to freedom of expression 12

c) Limitation of the right to freedom of expression 18

(i) Does sec 12 of the Divorce Act infringe the right

to freedom of expression/ press freedom? 20

(ii) Can the infringement be justified in accordance with

the criteria set out in sec 36? 21

(aa) Is sec 12 a "law of general application"? 21

(bb) Is sec 12 a reasonable and justifiable limitation

in an open and democratic society based on

human dignity, equality and freedom? 22

d) Conclusion 37

CHAPTER 4 - POSITION IN FOREIGN JURISDICTIONS 39

a) United Kingdom 39

b) New Zealand 44

c) Australia 47

d) Canada 51

CHAPTER 5 - CONCLUSIONS AND OPTIONS FOR DISCUSSION 54

a) First option: Repeal of sec 12 54

b) Second option: Amendment of sec 12 to give courts the discretion

to make an order to prevent publication 58

c) Third option: Amendment of sec 12 to give courts the discretion to

lift a restriction 60

d) Fourth option: Amendment of sec 12 to ensure anonymity for parties 61

ANNEXURE A: DRAFT LEGISLATION 65

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