The headline last week Friday in The Star was, “Wife to make minister pay. Millions being sought from abusive tycoon.” And then in the Sunday Times, “Tokyo Divorce Fury”, we found out just who was involved. Both stories were accompanied by brief editorial notes explaining in The Star’s case, why it hadn’t published the names and in the case of the Sunday Times why it had done so. The decision to name is significant and on reflection is probably the wrong one.

The story is interesting for a range of reasons and it is worth reviewing the law on the issue. In 2009 the Constitutional Court ruled that section 12 of the Divorce Act was unconstitutional. This was a positive finding, because prior to the decision Section 12 meant that the media could name the parties getting a divorce but not reveal the details.

In the current context the Sunday Times appears to be in contempt of court by violating the Constitutional Court order. It seems that The Star newspaper was aware of the order and it is rumoured that it had, or intended to, approach the high court to apply for permission to name the parties concerned. The Sunday Times, however, went ahead and named the parties, importantly with the consent of Tokyo Sexwale.  His rationale, “in the interest of transparency, and… to avoid a guessing game,” makes sense for him. Also, Judy Sexwale’s lawyer was also clearly given right of reply and is also quoted considerably, indicating consent. The Sunday Times also pointed out in its editorial that the children involved were both over 18. On the surface then this appears to be in line with what Media Monitoring Africa (MMA) and Johncom (now Times Media Group) and other media houses would have supported.

There are four critical issues however to be considered. Firstly, it still appears for all intents and purposes that the Sunday Times is in contempt of court, and while MMA may feel it is in line with what the court should have found, on the basis of what has been reported, it isn’t. As far as MMA knows, the court had not given permission to name the parties. It remains to be seen whether any action will be taken against the Sunday Times in this regard. (For a more detailed description of the legal position see the summary at the end of the article.)

The second critical issue to consider is that Judy Sexwale’s legal representative is quoted as saying that her client , “did not believe her and Tokyo’s personal history was a matter for public consumption.” The quote suggests that while she may not have necessarily objected to being named, she is clear that she didn’t want too many details to be revealed. Clearly, however, with Section 12 of the Divorce Act no longer standing, the details can be revealed, and it would appear that both Judy Sexwale and Tokyo Sexwale have willingly, at least on some levels, opened themselves up for the details not only to be aired, but for everyone to know it is their details.

It is also important to reflect that while there may be occasion to report on some potentially interesting legal aspect or where there may be a clear and important public interest, it seems that the default position around divorce should be that those involved are not named and to question the value of the details themselves being reported. Divorces are very often very painful, messy, depressing and degrading processes and no amount of affidavits will capture the full substance of what went on between a married couple, what went wrong, and the effect this has on all concerned. It’s probably the most private of private matters, and by and large it should remain that way.  This isn’t to say media shouldn’t report the details, but rather we have to question what kind of society we want to be and what kind of media we want. If people want prurient emotional porn there is the Internet and various other outlets, is it what we want from quality news media?

The third factor is that allegations of domestic violence are levelled against Tokyo Sexwale. This is crucial and the allegations very serious. There is a legitimate public interest in knowing whether a minister is accused of domestic violence. In ordinary circumstances such allegations would be laid as criminal charges. In the current instance they form the basis of a civil matter, in a divorce. The allegations are nonetheless very serious and the media have a responsibility to try and ascertain their validity. Sadly, however, it does not appear that any effort was made to test the veracity of the allegations.

Pierre de Vos argued in his blog, “In most democracies, serious allegations by a wife that her cabinet minister husband physically abused her would create a political storm. Journalists would rush to the cabinet minister’s house to hear his side of the story. The governing party would be hounded for comment. The big newspapers would send a crack team of reporters to try and dig up information that would either verify or disprove the allegations. They would speak to friends and acquaintances of the couple to hear if these allegations were known to anyone. They would probably also have pursued the question of whether Judy had any reason to fabricate these allegations…”

This raises the question as to why there does not appear to have been an effort to ascertain the validity of these allegations. What we have already seen is an error in favour of more dramatic wording, where The Star reported that Judy Sexwale alleged she was used as a “punchbag” and that Tokyo Sexwale was a “control freak”. It emerged through a page one correction the following day that, in fact, those terms were not used by Judy Sexwale. While small, the errors highlight the potential for harm. While not perpetuated by the established media, tweets on the weekend also highlighted how some referred to Judy Sexwale as a “gold digger”, also clearly an unsubstantiated comment.

The fourth critical issue is to ask what is the public interest in revealing the identity of the parties involved? While the allegations of domestic violence were raised in the Sunday Times it seems there was very little information revealed in the piece that had not already been reported in The Star on Friday, and yet The Star opted not to name the parties.

The allegations are not tested and are framed within the context of the divorce. This is highlighted in the opening sentence of the Sunday Times story, “Human Settlements Minister Tokyo Sexwale has come out publicly to vehemently deny claims by his estranged wife in their messy divorce.”  The allegations of domestic violence are used to support the Sunday Times’ public interest argument, “There is significant public interest in knowing that he is to be divorced because strong allegations of misconduct have been made against him.” Unfortunately, despite the story coming at the end of a week where there had been significant media focus (including a picture of Anene Booysens’s foster mother next to the story) on gender based violence, no mention of this is made.  Instead the story ends in such a manner as to undermine the allegations of domestic violence. “A relative of Tokyo’s said: ‘To the outside world, Tokyo may be a warrior. But we all know that at home, he wouldn’t hurt a fly.’” Perhaps if the links to gender based violence had been made clear and the emphasis largely on the domestic violence rather than the other details of the “messy” divorce, and had the allegations been backed up by some of the things suggested by De Vos, maybe then we could be more persuaded by the public interest in revealing the names of the parties involved. Given, however, that the allegations were made within the context of the divorce, and given the potential harm to the dignity and reputations of both Tokyo Sexwale and Judy Sexwale being named, the Sunday Times may have erred in its decision. Though the children may be over 18, and though both figures are used to being in the public eye, there can be no doubt that having such private details made public will be painful and embarrassing. So there may be justification in naming the parties, but it has to be weighed against the potential harm. Had the Sunday Times provided greater substance to the allegations the decision would have been easier.

Of course public figures should expect that private matters that may impact their performance or ethics of their responsibilities will be made public if they serve a broad public interest. Such a legitimate override of a right to privacy can be justified if it is in the public interest. The Constitutional Court order as it stands allows for people to know and hear about the details of the divorce, so any desire for prurient detail can be met by baring all. What isn’t clear is the value in knowing who is involved, especially given that the allegations are not supported.

We may think the Constitutional Court went too far in its ruling, but judges Langa CJ, Kroon AJ, Madala J, Mokgoro J, Nkabinde J, Skweyiya J, Van der Westhuizen J and Yacoob J all concurred with the judgment, which is significant. Perhaps they had considered the path some of our media would go down and opted for an over-broad protection, or maybe they just regard the privacy of the individuals to be more important.

The Times Media Group case

Previously, when media wanted to report on a divorce case, they were in the peculiar situation of being able to report on who was getting divorced and naming the children involved, but they were not permitted to provide the details of the divorce, such as settlement or custody of children.[1]

In 2007, the Sunday Times was prevented from publishing a “paternity fraud” story in which it named all the parties – including the children. Because of the unusual nature of the case, it had provided more personal details included in the court papers. The parties involved sought to prevent the Sunday Times from publishing the story by relying on Section 12 of the Divorce Act.[2] The newspaper was forced to pull the story after a late-night gagging order. Then, in February 2008, the Johannesburg High Court declared Section 12 to be overbroad and inconsistent with the right to freedom of expression enshrined in Section 16 of the Constitution. As a result, Section 12 was declared invalid and unconstitutional – and the Sunday Times went ahead and published the story.

The matter was referred to the Constitutional Court, which heard an application to confirm the constitutional invalidity of Section 12 in May. Media Monitoring Africa (MMA), represented by the Centre for Child Law, was admitted as an amicus curiae (friend of the court) in the hearing of the Constitutional Court case. In acting as amicus curiae, MMA raised the vital issue of the importance of protecting children’s rights to dignity and privacy in divorce matters.

In our heads of argument we argued: “Divorce can have a traumatic effect on children which is both profound and lasting. This is even more so in cases where the conflict and acrimony between the parties escalates to matrimonial warfare where the child is a used as a weapon. The effects of divorce on various age groups range from acute depressive reactions to sadness, fears of abandonment and anger. Lamb et al write that children of high-conflict divorce couples who litigate and re-litigate are particularly at risk and are more like to be clinically disturbed.

“It is clear that the effects of divorce will inevitably be exacerbated should all the private details of the divorce, including disputed paternity, become public knowledge. Having such information in the public domain would leave the children concerned vulnerable to stigmatisation, embarrassment and ridicule.”

Acting Constitutional Court Judge Jafta, in considering the constitutionality of Section 12, stated the following of Section 12 of the judgment: “But the chosen method of protecting the rights of children, quite apart from going too far, is also not particularly efficient in achieving the purpose…  Yet… another way to protect children and parties would, in my view, be to prohibit publication of the identity of the parties and of the children. If that were to be done, the publication of the evidence would not harm the privacy and dignity interests of the parties or the children, provided that the publication of any evidence that would tend to reveal the identity of any of the parties or any of the children is also prohibited. The purpose could be better achieved by less restrictive means.”

The Constitutional Court then confirmed the High Court’s ruling that Section 12 was unconstitutional and ordered that, “unless authorised 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 proceeding before any court is prohibited. The order made by the Constitutional Court does not unduly favour either the media or the litigant and its impact is that media can now freely report on divorce matters and reveal as much detail as necessary for their stories.”

The limitation placed on the media is around naming or identifying the parties involved. The effect of the judgment is that in all cases children’s names and identities, as well as those of their parents and other parties involved in the divorce proceedings, cannot be revealed to the public. While on the surface this appears to be in line with what MMA had sought, the ruling went much further than expected: no names of anybody – irrespective of whether they are children or not – can be named or identified in any way.

The ruling, in fact, may have gone too far. Further, unless there are exceptional circumstances and the media successfully applies for an order to publish the names and identities of those involved, any story on divorce proceedings that reveals the names or identities 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, 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 there is great concern that the extension of this element to adults undermines media freedom, it could also be seen as a case of seeking to protect the privacy of the individuals involved. While divorce can make for exciting gossip and 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. DM

1 Section 12 of the Divorce Act 70 of 1979 (the Divorce Act) states that except for making known or publishing the names of divorcing parties, no person shall make known any information relating to the particulars of the divorce action. In other words, Section 12 sought to protect divorcing parties’ rights (and those of their children) to privacy and dignity by prohibiting publication of information that comes to light during a divorce action.

² “The report the newspaper wanted to publish related to an action instituted by a man against his former wife for the payment of the sum of R1 009 847,51 as damages and restoration of certain benefits paid to her as a result of a settlement agreement reached in their divorce proceedings. The action was based on the allegation that she had deliberately misrepresented that one of the children born during their marriage was his biological son, knowing this to be false. As a result of the alleged misrepresentation, the man had suffered damage in the amount claimed. He also sought a rescission of part of the divorce order and a declaration that the child was not his.”

This article was published on the Daily Maverick website.