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17 Mar 2009 15:39
The media is allowed to report on details of divorce proceedings, but will need a court’s permission to use the name of the parties involved, mainly to protect the children involved, the Constitutional Court ruled on Tuesday.
This is an about-turn from Section 12 of the Divorce Act, which had allowed the publication of names and the fact that proceedings were under way, but not the particulars of the divorce action.
The court called it a question of maintaining the correct balance between the right to freedom of expression and rights to privacy and dignity.
This followed an application by Johncom, now Avusa, who are the owners of the Sunday Times, that section 12 of the Divorce Act was overly broad in its ban on reporting on marital splits by prohibiting publication of “all” matters which comes to light in the proceedings.
This came after the newspaper met resistance when it tried to report on a man who was suing his former wife for more than R1-million and trying to change his divorce settlement when he found out the son he was supporting was not his biological son as believed. He wanted her to give back the money he had paid over the years following their divorce, and also wanted a declaration that the boy was not his.
The newspaper got the information from pleadings filed in court and decided its readers would be interested in the story.
When the newspaper sought comment, the woman and her son got a court interdict against publication and a similar interdict against the Independent group of newspapers was granted.
When the interim order had to be confirmed, the Sunday Times opposed it.
The newspaper had argued that Section 12 was too broad.
The Johannesburg High Court agreed with the company and in its judgement wrote that even if matters of public interest arise out of divorce proceedings, they cannot be reported on.
It made a declaration of constitutional invalidity and referred this to the Constitutional Court for confirmation.
The Constitutional Court judges agreed that Section 12 does limit the media’s right to impart information and the public’s right to receive information.
At the same time the judges recognised that the section’s objective is to protect the privacy and dignity of the people involved in divorce proceedings, particularly children.
The judges were worried about how lifting this limit would fit in with other laws, like the Child Care Act, which bans identifying children involved in court proceedings.
It also wanted a solution where divorcing couples would not have to rush to court to prevent publication of their names in the face of a media industry which would be in a stronger position if names were also allowed, and to not overburden courts with such applications.
So, the court ordered that details of a divorce can be published, but not the names, unless a court has authorised it.
“Subject to authorisation granted by a court in exceptional circumstances, the publication of the identity of, and any information that may reveal the identity of, any party or child in any divorce proceedings before any court is prohibited.”—Sapa
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