Constitutional Court to rule on protecting children, writes Rowan Philp
Late on a Saturday night last year, a farce played out in cities around South Africa. Newspaper delivery trucks carrying an early edition of the Sunday Times were turned around; supervisors actually uttered the words âstop the pressâ at four printing presses; and security personnel were assigned to guard the newspapers that had already been printed.
About 50000 copies of the first edition were recalled, the online version of the front page was trashed, and a new newspaper was prepared.
Only a handful of readers saw the edition with the front-page headline: âMan sues tycoon wife over 30-year lieâ.
The story revealed that a leading photographer, Ian Difford, was suing his famous ex-wife, property mogul Claire Mandel, for concealing the fact that the son he had paid to maintain had, in fact, been fathered by another man.
Difford alleged that he only became aware that he was not the biological father six years after his divorce, when his âsonâ, now 31, told him he had been fathered by one of his mothers extra-marital lovers.
Publishing the story of the first case of alleged âpaternity fraudâ in the country should have been no problem, for three reasons.
First, reporting on events in open court is protected by the Constitution.
Second, any foreign media journalist who happened to attend the Difford hearing could have published every detail of the action without any legal restriction, and spread it across the Internet.
And, third, the South African Law Reform Commission recommended in 2002 that details in all but the most sensitive divorce cases should be open to full reporting.
But Mandels lawyers had held a trump card.
They knew that a law which had no business in a modern society â and still less under perhaps the worlds most liberal Constitution â still lurked within South Africas divorce statutes, and had successfully gagged the media for three decades.
Section 12 (1) of the Divorce Act of 1979 states that, apart from mentioning the names of parties to a divorce, âno person shall make known in public ... any particulars of a divorce action, or any information which comes to light in the course of such an actionâ.
As the presses ran and the early delivery trucks rolled, a Johannesburg High Court judge, Judge Bruce Burman, awarded Mandel a temporary interdict against the publication of the story in terms of Section 12.
Bizarrely, the Sunday Times could not provide even basic details of the article it had been forced to dump, in a new front-page story : âChaos as Sunday Times has to recall thousands of papersâ.
Mandel submitted an affidavit a week later which she believed would keep the suit secret forever.
Instead, the Sunday Timess legal team recognised the matter as the case South Africas media had sought for over 10 years, one that might put an end to almost all secrets in the divorce courts.
An earlier case had almost ignited the issue. Referring to the multimillion-rand divorce settlement between Anglo boss Barry Davison and his wife Sally, Sunday Times attorney Eric van den Berg said: âWe thought about mounting a challenge during the Davison matter, particularly since it held such an important issue for wives of wealthy men : what is the worth of a wifes active support of 30 years to a husband who becomes a wealthy mogul during that time?
âAlso, in that case, the judge called in reporters and specifically warned them not to disclose details in terms of Section 12. But we needed the right set of facts, and there they were in the Difford case.
âHere was a novel legal concept â paternity fraud, which hardly anyone had ever heard of â which, if published, could empower a lot of fathers out there with options they werent aware of. So we went for it.â
In response to Mandels affidavit, the Sunday Times filed a counter application, seeking a ruling that Section 12 violated the Constitution, and should be struck down.
In it, the Sunday Times sought to show what South Africans had missed out on, thanks to Section 12, including the full details of:
⢠The Charles and Victoria Spencer divorce;
⢠The divorce of Liberty Life founder Donald Gordon;
⢠âA dispute between (Reserve Bank Governor) Tito Mboweni and his ex-wife regarding where their children should go to schoolâ;
⢠An action involving Eastern Cape MEC Max Mamase, âwho did not pay maintenance for his childrenâ;
⢠The divorce and custody battles for Anneline Kriel and Phillip Tucker; and
⢠âThe failure of former Chief Whip Mbulelo Goniwe to pay maintenanceâ.
Acting Judge Nazeer Cassim ruled that Judge Burman had erred in interdicting the publication of the Difford story.
Judge Cassim also criticised the âMinistry of Justiceâ for âinactionâ on the Law Reform Commission recommendation for âa period in excess of five yearsâ, which he said was âtantamount to indifferenceâ.
Finally, and crucially, the judge ruled that Section 12 should be struck down as unconstitutional â and that its absence would promote free speech and ânot result in any injusticeâ.
As a result, the Difford story was finally published, eight months after the first attempt â but Cassims historic ruling had to be confirmed in the highest court in the land to take effect.
Detailed legislation operates in Britain and Australia to balance press freedom with divorce-action privacy.
But this week Alec Freund SC, appearing for the Sunday Timess parent company, Avusa, asked the Constitutional Court for a remarkably simple ruling : to throw out the whole of Section 12, including all of its clauses, and throw open divorce courts immediately.
No replacement legislation, no suspension, no amendments: just dump it â and trust the media to report responsibly, and rely on the courts to take care of the privacy needs of parties to divorces on a case-by-case basis.
As Freund pointed out, this had already happened in Canada.
The Constitutional Court heard that, in the 1989 case of Edmonton Journal vs Attorney General (of) Alberta, the court held that the Canadian version of Section 12 âby its restrictive ban on publication, results in a very substantial interference with the freedom of expression and significantly reduces the openness of the courtsâ.
âAny need for the protection of privacy of witnesses or children can be readily accomplished through ... for example ... the discretion of the trial judge to prohibit publication or hold in-camera hearings in those few circumstances where it would be necessary.â
The claim that children would need protection from harm in only a âfew circumstancesâ was the chief flash point on Constitution Hill this week.
But there was no such argument about the merits of Section 12.
Lawyers acting for both the minister of Justice and the Media Monitoring Project â there to safeguard the interests of children â agreed the section was âunconstitutionalâ.
And, in a question to counsel, one of the nine justices, Justice Thembile Skweyiya, remarked matter-of-factly that Section 12 did, in fact, violate the Constitution.
It was also roundly agreed that the law was fatally out of step with changing values in society.
In other words, the divorce or affair that would have scandalised a community 100 years ago might not merit a word of gossip today, or even a small newspaper headline.
Freund quoted another Canadian judge to make the point: âMany allegations that might once have been acutely embarrassing (and) painful are today a routine feature of matrimonial causes to which little, if any, public stigma attaches.â
This fact was graphically illustrated in the Difford case, in which Mandel, in court papers, painted a picture of a swinging 70s society so permissive that, she alleged, she openly took âvariousâ lovers while still married to Difford.
The question that remained for argument this week â and which will be decided by the Constitutional Court â was what to do about a flawed and unconstitutional law.
Specifically, how to throw divorce cases open to the media without exposing parties in sensitive cases to a harmful invasion of privacy â and minor children to harm and humiliation.
This week, Johannesburg divorce lawyer Billy Gundelfinger said he feared a return to the practice of some newspapers in the 70s â before the introduction of the law â in which âwhole pagesâ were devoted to a round-up of divorce cases, including âall the gory detailsâ.
âFor me, the mechanism for protecting the identity of the parties should be maintained, if only to serve the interests of children,â said Gundelfinger. âIn my experience it is not at all rare that children are harmed in divorce actions, and would suffer irreparable harm if their identities were made known.â
However, Sunday Times attorney Van den Berg said that there would be no âfloodâ of media reports on ordinary divorces following any striking down of the section because divorces were no longer awarded in terms of the behaviour of a spouse.
âI think Billys fears are unfounded, partly because in the 70s we had a fault-based divorce law,â said Van den Berg.
âYou had to show adultery or bad behaviour to get your divorce; people would hire private investigators to expose affairs to show their husbands frequented prostitutes, and so forth â hence the greater media interest at that time.
âNow, irreconcilable difference is sufficient cause. There would only be a small number of divorce trials where tabloid-style reporting would be likely.â
Van den Berg conceded such a ruling would nevertheless make ordinary couples involved in divorce actions âfair gameâ for media reports detailing their divorce.
âBut, to my mind, that is not a bad thing â for instance, if an abused spouse read in the paper that so and so went to court and sought a divorce because they were tired of being beaten, they may become empowered to escape their situation.â
The effect of a âstriking downâ of the law would be that South Africans could learn the details of, particularly, high-profile divorce cases such as in the divorce between Nelson Mandela and Winnie Madikizela-Mandela, where the parties effectively agreed to waive their privacy rights under Section 12.
Van den Berg said there was âno great surgeâ in media reporting on divorces when Canadas prohibition on divorce-action publishing was struck down in 1989.
However, Gundelfinger is one of a number of divorce attorneys who hope the Constitutional Court will adopt a solution along the lines of that proposed by the Media Monitoring Project .
The projects council, Ann Skelton, proposed that all details from divorce cases may be fully disclosed, but all names withheld â the exact opposite of Section 12.
âWhat has to be borne in mind is that children, unlike adults, are not in a position to assert their own rights,â said Skelton. âThey are not granted the opportunity to determine which of their personal details and intimate facts should be disclosed. They rely on adults and the courts to protect them.â
Skelton said âthe most commonly used device for achieving the balanceâ between privacy and press freedom was âto allow open courts and full reportage of proceedingsâ.
âBut what is not allowed ... is information that would identify a child or lead to their identification.â
Skelton conceded that the public had a valid interest in the identity of divorcing parties in cases involving âpoliticians, people holding office, judicial officersâ, because âit may be relevant for the public to know of their conduct, to know if they are suitable for their officesâ.
However, she said media organisations could apply to court for the right to publish names in cases of public interest.
Finally, it was the turn of the minister of justices counsel , Ismail Hussain SC, to make his argument in favour of an 18-month suspension of the law. Instead â to the apparent amazement of the justices â he argued against it, saying his own teams submission to the court âhad no basis in factâ.
Hussain said the deputy minister could not change the law within 18 months â but could, he appeared to add, if he was ordered to do so.
It was the clumsy final word on a ham-fisted law â at least, until the Constitutional Court performs its last rites, in whatever form it sees fit.
Source : http://www.thetimes.co.za/PrintEdition/Article.aspx?id=764109
Photo : http://www3.nationalgeographic.com/places/images/photos/photo_lg_istanbul.jpg