The law should give way to allow the media to report on divorce proceedings, says Khadija Magardie
None of the good citizens of Utah batted an eyelid when, one spring morning in 1868, Brigham Young, a farmer, became “sealed” to Ann Eliza Webb, a 24-year-old bright-eyed divorcee with two children. She was his 19th wife. Before he died, the septuagenarian Lothario managed to rake in 55 brides. But Ann Eliza was not content with being part of the pack she applied for civil divorce from her “celestial” marriage in 1873. Lurid tales of neglect, cruelty and emotional abuse in the polygamous marriages favoured by the Mormon Church emerged during divorce proceedings. But taking things to court cost her Ann Eliza was excommunicated, and received a paltry sum in maintenance money. Not that she took it lying down she devoted the rest of her life to publishing her sensational memoirs, Wife No. 19, the Story of a Life in Bondage; and to giving anti-Mormon lectures. Which is always the nice thing about acrimonious divorces; the reading materi-al they provide.
Compared to what comes out of divorce proceedings nowadays, Ann Eliza’s scandalising of the Church of Jesus Christ of the Latter-Day Saints pales by comparison. The statistics aren’t promising up to half of all marriages are expected to end in divorce. And though one would think that we would get sick of reading about the sordid sagas that pre-empt marriages crumbling, the runaway success of so-called “yellow journalism”, from The Sun to our very own Huis-genoot indicate that our appetites remain unsated.
But we, the local press, have been missing out. Section 21 of the Divorce Act no 70 of 1979, yet another legislative dinosaur from the bad old days, prohibits the local press from publishing any particulars of a divorce action, including names of the parties, the fact that a matter is pending in the court, or that the judgement is pending. In other words everything, including the juicy bits. Luckily, this could soon be a thing of the past.
The South African Law Commission has released a discussion paper scrutinising Section 21, proposing either that it be scrapped altogether, or amended to give judicial discretion as to what should, or should not be publicised. Far be it for any self-respecting reporter to suggest that crime, or some politician’s latest vehicular or sexual acquisition, has become rather jaded, not to mention predictable. But for anyone who cannot remember when last they had a good laugh after seeing or reading the news; this really spells good news.
A visit to the Divorce Court in downtown Johannesburg will help put things into perspective it’s a laugh a minute.
While the pale green linoleum corridors are seldom honoured by the glamorous among us, it could provide enough colour to fill an entire newspaper for days. Enterprising newspaper houses could even start a special supplement. Picture it, The Skei of the Day. A blessing in disguise for editors, indeed, especially on those slow days, like around public holidays. Piously speaking, it’s never good to jeer at the misfortunes of others, and most of the daily goings on at the court resemble a rather sad pantomime. But more than once in a while there are those exchanges worthy of page 3.
Zelda Moletsane, 41, the acting presi-dent of the Johannesburg Central Divorce Court, is presiding over Court B. Things are slow on this particular Friday morning. A smartly coiffed young woman is in the witness box, lips pursed, giving her a slightly shrewish appearance. Her arms, in the gleaming black leather jacket, are tightly folded. Sitting next to the box is the defendant, her penitent husband of one week. Moletsane is delivering one of her legendary bollockings. The husband, a West African national, paid the woman R5 000 for her hand to secure his work permit. And with the cash pocketed and the honeymoon over she wants a divorce. But if sympathy is what she is looking for, the magistrate’s reaction has clearly come as a surprise.
“I have a good mind to get you both locked up for this!” she shouts. Turning to the wife, she asks: “And you, did he give you anything for sacrificing yourself like this, breaking our country’s laws?” Head bowed, the wife shakes her head. Moletsane later explains that foreigners marrying local women just to secure work permits, then leaving them in the lurch, is an increasingly common problem coming before the courts. Some of the women who come for divorces do not even know who their husbands are.
After a stern reprimand to the two to “never do this again”, the final words are uttered the court is satisfied that the marriage has “irretrievably broken down”, and grants a divorce. The woman walks out of the courtroom quickly, her (now ex) husband in hot pursuit. What ensues outside the courtroom feeds speculation.
A former prosecutor with years of experience specialising in rape and domestic violence cases, Moletsane’s is no easy task. Every day she has to not only sound the death knell for matrimonies that turned sour but mediate in what often turn into acrimonious battles. One couple that appeared before her were so intent on dividing assets that the court had to rule that the wife should pay back to her husband, in monthly instalments, money he spent on tiling the kitchen of their home about 10 years ago.
And the lady tolerates no humbug. Anyone trying to weasel out of things faces a severe tongue-lashing.
The continental couple is followed by a sad-looking man who has come alone to be divorced from his wife, who left him for another man three years ago. Like many cases, it can take less than five minutes for the court to legally sever the marital bond. Some come alone, others with the soon to be ex-spouses. One woman, a twentysomething, Afrikaans-speaking blonde from the West Rand, has been accompanied by her sister and mother. Her husband of three years took out a series of loans in her name. Another woman satisfies the court that her marriage cannot be saved she cannot bear children, so her husband has stopped maintaining her. She is followed by an elderly man, who, in response to a question from Moletsane, says: “I have lost my love for her.”
Running the affairs of the divorce court with impartiality and fairness nobody can expect to be let off the hook simply because they are a man or a woman is largely due to the personality and dedication of the woman who presides over the courtroom. Moletsane’s attempts to bring the law to the level of ordinary people are impressive. In a country where liti-gating in the higher courts is as costly as it is complicated, she is less a judge of the parties involved than she is a mediator, even a counsellor. She is also efficient. The first black, and woman, to hold the post, she has made broadening access to justice, especially for the indigent, a cornerstone of her job. When there are disputes over children, she usually postpones the case, referring it to a family advocate. The report is then used by the court to determine the best interests of the child or children involved. In each and every one of such cases, she explains, in detail, the procedure the husband or wife should follow in securing the services of a family advocate, as well as what maintenance is, and where and how to apply for it. When domestic violence is cited as a reason for divorce, she makes it her duty to inform the parties involved where to get help.
Moletsane also made a written submission to the South African Law Commission for its paper on Section 12. She agrees it should be scrapped.
“Not only does the public have the right to know what goes on in all our courts, but it is also in the interests of accountability that everyone sees if we are doing our jobs,” she says.
That the law still exists is absurd in many ways. Firstly, it has been ignored anyway. Who hasn’t heard the intimate details contained in affidavits filed in the divorce of Durban politician Amichand Rajbansi (he of prosthetic locks fame) from his lovely wife, Asha Devi? Amid mutual accusations of demon possession, the “Bengal Tiger” confessed, to the delight of the papers, that he kicked out his wife because she was packing a loaded weapon under her sari.
“I am afraid of being alone with her, I lock my bedroom door before I go to bed,” The Raj said.
But the law is really useless because it lacks extra-territoriality. So, a Moldavian villager may come to know what transpires in a South African court, courtesy of the BBC or CNN, but our own citizens are kept in the dark. Furthermore, it is widely viewed to be unconstitutional, because it undermines the right to free speech.
Of course, the right to privacy is equally important, and there are indeed legitimate areas of non-disclosure that should be adhered to, like when there are minor children involved. But being at the court on Monday mornings, when traffic flow is heavier, and things more exciting, it’s easy to forget the situations are real-life, and not soap operas.
By 9am, the start of court, there are bodies squashed into every available space in Court B. Some are standing at the door, and others are standing in the corridor, sipping steaming coffee from polystyrene cups.
Bubbly, raven-haired Cynthia Molefe has been working “for years” in the court. She manages the court roll, sees to it that the paperwork is before the magistrate before the case is called, and is also the court interpreter. She has an open, friendly face, giving her an “agony aunt” air. That the soon-to-be divorced couples see her as sympathetic, even as an ally, is evident. During court recesses they crowd around her desk, just below the magistrate’s bench, whispering and asking questions. Her job is a fixed routine calling out the names of the parties, ushering them to the witness stand and swearing them in. For the purposes of court records, she translates for everyone who does not speak English except Afrikaans, which Moletsane speaks fluently.
Today the court is filled with rows and rows of men and women, most clutching dog-eared copies of their marriage certificates, which Molefe presents to the magistrate when their case is called. Because of the long court roll, cases are being dispensed with fairly quickly. Moletsane asks the respective plaintiff to give just two reasons, no more, as to why their marriages cannot be saved.
One woman sums it up: “No communication, no love.”
“She was consuming alcohol to a frightening degree,” a mild-mannered man tells the court.
Not surprisingly, Mum is an oft-cited reason for marital discord.
“She tried to hit my mother, so I told her to go,” explains a youngish-looking man.
“His mother never approved of me,” a bitter-looking woman told Moletsane.
Another man, from Lenasia South, said he could not stay married to his wife because she was “always at her mother’s”.
In many of the cases, the dissolution of the marriage by a court is a mere formality, burying what has been dead for years.
“We’ve been living apart for two years, I don’t even know where she is,” a thin Indian youth tells the court. Because of the large audience, some look slightly embarrassed to be in the witness stand, and are clearly ill at ease with revealing too much.
The seating arrangements are a useful barometer for measuring the levels of bad blood. Some husbands and wives sit together, chatting quite amicably while waiting for their turn to get rid of each other. Others arrive and sit benches apart, so much so that until they walk up to the box together, it would be impossible to identify they even knew each other.
One such couple are arguing their case before Moletsane. They sat separately while waiting, and completely avoided eye contact when they approached the witness box, from opposite directions. Things have taken an unexpected turn the wife has denied all knowledge of the divorce, which, according to court papers, she filed for. The phlegmatic husband, whose Jack the Lad appearance raised several eyebrows, stood motionless in the witness box as his wife’s protests grew more urgent.
“Are you telling me you know nothing?” asks Moletsane, incredulous, as Molefe gives the woman the court papers to see her own affixed signature. The woman shakes her head, saying she never signed. There is also a twist in the tail. As it turns out, the family advocate representing the defendant, is also his relative. He is given a stern lecture “not to touch family cases with a 10-foot pole” before the exasperated Moletsane strikes the case, now a non-case, off the roll.
Then there are those who bring their new partners along for support which is not necessarily always a good idea.
There was lots of talk of “the other woman”, of theatrical proportions, in what was outright the nastiest case of the day. A brush-cut, permanently scarlet-faced man from the East Rand has come to court to demand that it review the terms of settlement between him and his former wife regarding custody of their two toddlers. He starts with an impassioned plea to Moletsane to give him custody of his children, whom he has hardly seen since he remarried. Disrupted by countless objections raised by the family advocate representing his wife, he said he had been denied regular access to the children, which the court granted in the settlement, because his former wife had called his new wife ‘n fokken hoer who would never touch her children. As he speaks he casts regular affectionate glaces over to his new wife, seated in the back row. Things were proceeding reasonably until his elderly mother, children, and his former wife and her brothers moved discreetly into the second row behind him. The wife, barely out of her teens, sits alongside her former mother-in-law as her ex-husband paints a picture of her as a selfish manipulator, to the court.
His voice reaches fever pitch. “Almal is teen my [everyone is against me],” the husband cries, telling Moletsane that his mother, who looks after the children, has not allowed him and his wife to take the children for weekends. Interrupting him, Moletsane gestures that the man’s mother come forward to give her version of events. Balancing one grandchild on her hip and holding the other by the hand, the mother walks up to the witness stand alongside her son and launches a scathing attack on his parenting skills, or the complete lack thereof.
She proceeds to tell the court how her son is a drinker and wife-batterer, who has never paid a cent in maintenance to his former wife. She relates an incident when he once took the children for the weekend, only to call at 6am one morning to ask her to come and fetch them because he and his new wife wanted to be alone. Her voice chokes several times as she pleads with the court that it should not allow her son to see his offspring until he cleaned up his act.
“Edel egbare, ek is ‘n ma, ek het gevoelens [Your Honour, I am a mother, I have feelings]” she tells the magistrate, with tears in her eyes.
The son, whose face has become increasingly redder, and his eyes puffed up, tries in vain to interject. He demands, rudely, that Moletsane give him a reason why he cannot have his children. Eventually, the magistrate, reminding all the parties that the court cares only for the best interests of the children, not the adults, ordered that the plaintiff pay the costs for the family advocate, and that the original terms of the contract, allowing him only partial access, be upheld.
He then stormed out of the court, his new wife tottering anxiously behind, muttering a series of abusive words, several of which he said loudly when walking past his then-seated mother. In the reception hall outside during recess, they were even louder.
But if all this insight into the lives of the commoners does not excite, there are always the salacious bits from the marriages of the rich or the famous. Consider the divorce proceedings of one Earl Spencer, a particularly nasty piece of English royalty, in the Cape High Court in 1997. The goings-on between the Earl and his estranged wife, Victoria, including accounts of her bulimia, and his romps with the wife’s best friend gave the press such a field day that Spencer had to use the same courts to protect himself. Of course, it didn’t work “Spencer vra interdik teen pers [Spencer seeks interdict against press]” was the headline the next day.
It’s just not fair. So many high-profile divorces have passed us by because of this law. Here are a few speculative scenarios, based on true-life.
Despite her autobiography, ‘n Plek Waar die Son Weer Skyn (A Place Where the Sun Shines again) let’s hope not too brightly, she might pass for coloured most of us still don’t know quite why our former state president preferred the delights of the Mediterranean over Marike. Picture the headlines “Halitosis made me do it: FW spills the beans.”
Nor do we know why our minister of foreign affairs packed up her bags and left our deputy president. “Nkosazana speaks out: I had a problem staying awake when he spoke.”
Remember beauty-queen Anneline, a veteran of divorce courts? How about: “She loves a man called Bacon! Jewish husband of former beauty queen breaks down in courtroom.”
And imagine how much taxpayers’ money could have been saved if we looked more carefully at the affidavits Elna made in her 1992 application for divorce. It is not without bitter irony, as the Sunday Times then pointed out, that the journalist Mrs Boesak was the first to raise the alarm on the cleric’s struggle banking telling the court that, among other things, her spouse had access to “substantial funds” from overseas. She also detailed the hundreds of thousands spent on their home, including R8 000 worth of curtains.
We all love it when the four pillars of yellow journalism are involved; namely sex, scandal, sensation or stupidity. That is why stories like “Vicar caught in three-in-a-bed romp”, or “Driver loses his train” are so hugely popular. Which is exactly what the nation needs, something to read that is not gruesome or boring. And when it comes to the ending of marriages, there is no greater source of brickbats.
One critic, quoted in the South African Law Commission position paper, said if the press so brazenly flouted the law, citizens would soon have “to steel themselves against the onslaughts of the mass media”. Leave out the debates around respect for privacy the courts will likely place restrictions on what is reported anyway. But the populace is in dire need of a healthy dose of daily humour, which would make easing of the laws a good idea. After all, even vultures must eat.