Despite a law forbidding in-depth coverage of divorce cases, the media scrutinised the Mandela case, writes Philippa Garson
THE flagrant contravention by the media this week of a section of the Divorce Act has raised questions about whether that aspect of the legislation is unconstitutional.
The media had a “field-week” reporting on the ins and outs of the emotional court room drama of one of the world’s most high-profile divorce cases — that between 77-year-old President Nelson Mandela and his former wife, Winnie Madikizela-Mandela.
This, despite the fact that the Divorce Act limits reporting on divorce to the names of the parties, the fact of the divorce action and the judgment.
Mandela, his legal team or Justice Frikkie Eloff could by rights have objected to the publication of details of the divorce and the transgressors (the media at large) would face a maximum prison sentence of one year and/or a fine of R1 000.
A member of Mandela’s legal team said: “I don’t know what our client’s attitude is. We did not discuss it and no one from our legal side expressed any objection. The publicity did not do him any harm. It would have done him more harm if the trial was held in secret.”
He added that the team would not want to enforce a ban whose constitutionality was up for question and that the “paltry” penalty for contravention would not act as a deterrent to the media in such a high-profile case.
The ban was a good one in certain instances, but should allow for discretion in cases like the Mandela divorce which contained elements of public interest, he said.
Most would agree that Mandela’s almost indestructible image was in no way damaged by revelations of his private life. In fact, if possible, it was even enhanced, evoking deep sympathy for him from the public. But things could have been different if, for example, Madikizela-Mandela had given evidence and made damaging allegations against him. This was an unlikely but not impossible scenario given that she contested the divorce.
According to lawyers, this is the first time such a flagrant contravention has been made since the Act was amended in 1979.
The details of the divorce between high-flying socialites Philip Tucker and Anneline Kriel were reported only because they emerged in a criminal trial arising from dagga charges against the two.
The issue highlights the tension between the public’s right to know and an individual’s right to privacy. Do public figures forgo all rights to privacy?
Leading divorce lawyer Billy Gundlefinger said he was “astounded by the flagrant disregard of the law by the media. Just because he’s the president, why should he have his personal life paraded?”
Constitutional expert Dennis Davis said it could be argued that the provision was unconstitutional in that it infringed on the right to freedom of expression.
However he said he found it “unbelievable” that such a provision, no matter how controversial, was so brazenly breached. “Being president gives you a reduced right to privacy but it can’t possibly destroy your privacy completely. He might be the most famous person in the world but he is not public property.”
Raymond Louw, chairman of the Freedom of Expression Institute (FXI), was part of a Newspaper Press Union delegation to the former government opposing the amendment when it was passed, believing that it was introduced to hide potentially important information from the public.
“I’m all in favour of divorce evidence being available to the public on the grounds that the public has a right to know,” said Louw.
He continued to say that “double standards” were implicit if people were allowed to listen to court proceedings but media were prevented from reporting them.
“I feel sympathy for the President that his private life has to be bundled out in public in this way, but this is the price one pays for democracy.”
Director of the FXI Jeanette Minnie said the public had a right to know about the divorce partly because “the country has felt the ramifications of the tensions between the two. It has been part of the political scenario on South Africa over the past few years.”
The right to privacy versus the public’s right to know “are not in contradiction so much as that they encroach on each other. The constitutional court must balance them.” Minnie said it took 10 years for a country to establish new constitutional law. The organisation is involved in a research project identifying bits and pieces of existing legislation that places curbs on press freedom.