Divorce Attorney Cape Town

Can the media report on divorce cases?


Can the media report on Divorce cases?

A recent article in the Rapport newspaper under the heading “Steekse Steve laat sy egskeiding sloer” certainly may have raised some legal eyebrows, especially having regard to the fact that the South African Divorce Act strictly prohibits the media from publishing the names of the parties involved in divorce proceedings.

Divorce can have severe and traumatic effects on children and private details made available through the media may exacerbate this.

One of the most important questions in a free, open and democratic society that is based on human dignity, equality and freedom, is how one should balance the right of freedom of expression, against the right to privacy and dignity of an individual on the other hand.

In the case of Johncom Media Investments v Mandel and Others the Constitutional Court balanced this important right against the rights of dignity and privacy. The court found that the objective of section 12 of the Divorce Act was “to protect the privacy and dignity of people involved in divorce proceedings, in particular children”. By doing so the Court decided to invalidate section 12 of the Divorce Act, but also to prohibit the publication of the names of any of the parties to a divorce or the children. What this in actual fact means is that the media is free to report on the details of a divorce matter but that they may not publish the names of any of the parties involved in a divorce when doing so.

The judgment was referred to as a ‘lukewarm triumph for press freedom’, by retired academic Marinus Wiechers in a Beeld newspaper report as saying that the judges’ qualification of the order declaring Section 12 of the Divorce Act unconstitutional may leave the media in a worse position as no names may be published. In the judgment, the Constitutional Court gave to the media with one hand and took away with the other. While the court has basically struck down a provision of the Divorce Act which prevented the media from publishing any particulars of a divorce action, or any information that emerges in the course of such an action, it also ordered that no party or child involved in divorce proceedings may be identified.

Even attorneys are bound by confidentiality and may not divulge information to the press.  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 does so will amount to contempt of court.

The judgement of the Constitutional Court resulted in a situation which is actually the reverse of Section 12 meaning that the 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.

Where there is a clear public interest in a particular case, the media must apply for an order enabling them to name the parties involved in the divorce matter. Such cases may include, for example, public figures. The key would be to ensure that there is a clear and genuine public interest in naming and or identifying the people involved.

The ruling highlight the importance of media freedom as well as children’s rights and it also has the effect of requiring stronger legal and ethical adherence to reporting not only on children but also, more broadly, on areas that are normally private and personal by nature.

The Divorce Act imposes a criminal sanction in that a person who in contravention of this section publishes any particulars or information shall be guilty of an offense and liable on conviction to a fine not exceeding one thousand rand or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

The Constitutional Court has clearly stated that as important as freedom of expression is, it does not enjoy any preferential status over any other rights.

The question is whether Rapport was entitled to name Steve Hofmeyr…….You be the judge.

About the author:

Bertus Preller is a Family Law and Divorce Attorney based in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. and deals with Family and Divorce matters across the country. He is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His clients include celebrities, actors and actresses, sportsmen and sportswomen, television presenters and various high net worth individuals.


					

7 thoughts on “Can the media report on divorce cases?”

  1. the public is fed up with the total crap the media publishes these days. look at newscorp and the murdoch scandal. the press fabricates the news and gossip only to sell newspapers. social media is full of evidence that people had enough of this crap. after all we dont need newspapers anymore, who buys it anyway these days.

  2. Dear Jaco.
    I am aware of the judgment that you refer to. When a judgement is published by a court, whether in digital or in a printed format, it does not necessarily imply that its contents may be published for gain by the press.

    In Johncom Media Investments v Mandel an action was instituted by Mr D who claimed damages from Ms M for the restoration of certain benefits that had been paid to her in terms of a settlement agreement; a partial rescission of the divorce order in which it referred to PD as his son; and an order declaring that PD was not his son, which was based on the allegation that Ms D had misrepresented to him that the PD was his biological son. So, to answer your question whether the rectification application is part of the “divorce proceedings”, it is quite clear that the Mandel case also did not form part of the “divorce proceedings”, yet the Constitutional Court stepped in to prohibit publication.

    Everyone knows that celebrity gossip sells more papers. What often gets lost in these stories is the fact that two real people, with emotions and feelings, and innocent children are caught up in the circumstances. The children did not ask to be celebrities and often face the possibility of seeing their parents’ personal arguments being splashed across the press.

    What we need in South Africa are clear guidelines to enable the media to know exactly what they may report on in Family Law matters. Particularly children must be protected from intrusion into their privacy so they are not identified or stigmatized by their community or friends.

  3. Very confidential information that was “leaked”. http://www.saflii.org/za/cases/ZAGPJHC/2010/151.html

    It seems like Rapport only used this judgment for the article. Criticism against Sutherland’s lawyer also seems a bit unfair to me. The report makes it clear that the information didn’t come from him (obviously from the judgment that has been lying around on the internet since December last year). The lawyer merely confirmed that an agreement (no details) has been signed.

    Another thing that interests me, Mr Preller, is whether the case in court forms part of the divorce proceedings at all? As a layman, it seems to me like a normal civil case for a rectification of a contract?

    Maybe Mr Hofmeyr can give clarity on whether it was part of the agreement that the attorney may not divulge that an agreement has been reached? Would it be so different from your initial announcement of the coming divorce? (Statement 1: “Yes, we are getting a divorce”. Statement 2: “A confidential agreement has been reached.”) Is this a breach of trust from your perspective?

  4. Although they gave remarks in the past doesn’t mean they have to go on.
    If they kept quiet for the last how long couldve mean that they don’t want to say anything anymore.
    So they do have a choice for their privacy and their childrens I believe!

  5. Both Steve and his wife gave interviews to the media the past three years discussing their pending divorce. Didnt this leave the door open to the media to ‘follow up’ on the story. Surely the Hofmeyrs should have considered their children’s rights to p[rivacy as well?

    1. If they discussed their divorce openly with the media, then obviously it could be argued that they waived their rights to privacy. Whether that is indeed the situation remains to be seen. Advocates for media freedom emphasize its importance to democracy, and in some systems it enjoys a preferential position in a hierarchy of rights. Not in South Africa, however. The Constitutional Court has clearly stated that as important as freedom of expression is, it does not enjoy any preferential status over any other rights.

    2. Thanks Bertus.
      Tammy is confusing Natasha and myself with Joost and Amor. THAT we are in divorce procedings is general knowledge. That the details of this laborious settlement and running case should make the press without our consent, is hugely uncomforable. And then the journalist made no bones about whose court and divorce details readers were perusing (what Bertus is arguing above).
      A condition of our settlement was NO MEDIA. This we kept up until a week ago – some days before our final settlement after two years of battling. But that’s all gone now. All preceding trust and amicability is gone and we are ready to start our next two years.
      The insulting tone of the article leaves no doubt as to 1. the Rapport’s sympathy and 2. as to which side the confidential info may have leaked from.

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