/ 9 May 2008

Media challenges Divorce Act

The Constitutional Court has reserved judgement on a ban prohibiting journalists from reporting on divorce cases, the Star reported on Friday.

Earlier this year, the Cape High Court ruled that section 12 of the Divorce Act was unconstitutional after media group Johncom (now Avusa) brought an application challenging it.

On Thursday, Johncom took the matter to the Constitutional Court to have the order ratified.

On January 31, Cape High Court Judge Nazeer Cassim ruled that the section of the Divorce Act violated the right to freedom of expression and was therefore unconstitutional.

This was after the Sunday Times (owned by Johncom) and the Independent Group (which owns the Star) were banned from publishing the details of a paternity fraud suit last year in which a Johannesburg man was claiming damages from his ex-wife for allegedly failing to tell him that the son they shared was not his.

At the time, it was argued that the matter was linked to their divorce and publication of details was thus prohibited by the Divorce Act.

The ban on reporting on divorce proceedings has been in place for the past 30 years.

Advocate Alec Freund SC, representing Johncom, on Thursday asked the Constitutional Court to scrap the section of the Divorce Act.

He argued that the Act was over-broad and disproportionate in its intention, which was to protect the privacy of people and their children.

He argued that while the divorce proceedings were open to the public, the media was not allowed to report on the matter.

While he recognised that there might be privacy issues in the future, especially when it came to protecting children, the court dealing with that case could have it heard in camera at the request of the relevant parties.

In 2002, the South African Law Reform Commission also noted that section 12 of the Divorce Act was unconstitutional.

Justice and Constitutional Development Minister Brigitte Mabandla, who was the third respondent in the matter, also conceded in her submissions to the court that the Act was unconstitutional.

However, the Media Monitoring Project, given permission by the court to join the application as amicus curiae, said that while they agreed that the Act was over-broad, the right of children should not be disregarded.

Advocate Ann Skelton, representing the watchdog, said the media should be allowed to publish divorce proceedings, but in doing so should not identify any children concerned. – Sapa