“The Constitutional Court ruling on section 12 of the Divorce Act 70 1979 is a victory for media freedom and children’s rights to dignity and privacy.” Said William Bird, director of Media Monitoring Africa (MMA).

Represented by the Centre for Child Law, MMA joined as an Amicus Curiae (friend of the court) in a case involving Johncom Media, the Minister of Justice and others, that sought to have section 12 of the Divorce Act declared unconstitutional.

The Constitutional Court made an order that does not unduly favour either the media or the litigant.  It stated, “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.” (Con. Court Ruling, Justice Jafta 45.2 p.21)

The impact of this is that media can now freely report on divorce matters and reveal as much detail as necessary for their stories.  The only limitation is around naming or identifying the parties involved.  In all cases children’s names and identities, as well as those of the parents involved will need to be protected.  Unless there are exceptional circumstances and media successfully apply for an order to publish the names and identities of those involved, any media story on divorce proceedings that reveals the name and or identity of any of the parties involved either directly or indirectly will amount to contempt of court.

To this extent the order of the court has resulted in a situation which is the reverse of Section 12 i.e. media can now report all the detail they wish, which is in line with the argument presented by Johncom and supported by MMA, as a means of informing and educating the public about divorce matters, but unless there are exceptional circumstances they may not name or identify the people involved.  While some may argue that this element that extends to adults undermines media freedom, it could also, as was the case with the court, be seen as a case of seeking to protect the privacy of the individuals involved. Divorce can make for exciting gossip and while it may be interesting to the public, in many cases it would be difficult to argue that it is in the public interest to know who is involved in divorce proceedings.  It should be noted that where there is a clear public interest in a particular case, the media would be encouraged to apply for an order enabling media to name the parties involved and MMA would clearly support media in such cases.

Not only does the ruling highlight the importance of media freedom and children’s rights but it also has the effect of requiring greater legal and ethical adherence to reporting not only on children, but also more broadly on areas that are normally private and personal by nature.  Given recent debates around the right to privacy versus public right to know it seems clear that the court has ruled that in personal matters of divorce there is a greater emphasis on the right to privacy.

Bird said, “The law as it stood was clearly untenable”, adding, “The media were allowed to name people involved in divorce cases, but were prevented from revealing the details.”  In presenting the case, all parties agreed that Section12 was overly broad and violated South Africa’s press freedom clause, as well as the general rule of open reporting on court cases.  MMA, represented in Constitutional Court by the Centre for Child Law, raised the vital issue of the importance of protecting children’s rights to dignity and privacy in divorce matters.

Children a special case?

It is important to consider that children are afforded special protection in a wide range of areas.  There is a UN Convention dedicated to promoting and protecting children’s rights, as well as various other international laws.  South Africa’s Bill of Rights has a special section dedicated to children, and South Africa has also recently just passed one of the most progressive pieces of legislations specifically targeting the protection of children, the Children’s Act.  Parliament is now in the process of finalising the Child Justice Bill.

Special considerations apply to children in almost every aspect of a democratic society, from court to criminal procedures, from education to social grants and protection.  But what about the media?

Children are also afforded specific protection in South African law in relation to media under the Criminal Procedure Act, as well as various other pieces of legislation.  In these respects, the laws serve to protect children’s best interests by preventing the publication of their details, particularly in criminal matters.

Indications are that media in South Africa are becoming increasingly aware that reporting on children and child related matters are not only central to any news agenda, but also that reporting on children requires special attention and adherence to higher standards of journalistic practice.  In this context it is extremely significant that the South African National Editors Forum (SANEF) has recommended guidelines for reporting on children developed by MMA to all its members.  While the ethics surrounding reporting children are challenging, what is clear is that we all have an obligation to act in the best interest of the child.

The Constitutional Court agreed with MMA’s view and in the judgement went so far as to note, “the amicus subsequently submitted very helpful written and oral argument.  We are indebted to the amicus for its important contribution.”  (Con. Court Ruling, Justice Jafta 16 p.7)

For more details, questions or comments

William Bird
Media Monitoring Africa
Tel: 011 788 1278
Mob 082 887 1370
Email: williamb@mma.org.za


Ann Skelton
Centre for Child Law
Tel:  012 346 0505
Mob: 082 443 2702