About Joost, that sex tape and the Divorce Act

One of the most perplexing questions in an open and democratic society based on human dignity, equality and freedom, is how to balance the right of freedom of expression on the one hand, against the right to privacy and dignity of individuals on the other. Today the Constitutional Court handed down judgment in the case of Johncom Media Investments v Mandel and Others and in the process gave some troubling hints of how it would “balance” these rights against each other.

This is a rather important question because politicians, celebrities and other powerful people often invoke their right to privacy and dignity to try and stop the publication of embarrassing or scandalous information about them. Whether the right to freedom of expression should therefore yield to the right to privacy and dignity of individuals may be of immense practical importance for the media, for individuals in our society and for our constitutionally guaranteed democracy, which requires public individuals to be open and accountable to all of us.

Unfortunately this judgment seems to solve this difficult problem in a less than satisfactory manner. At issue was section 12 of the Divorce Act which prohibited the publication of  “any particulars of a divorce action or any information which comes to light in the course of such an action”. Section 12 did, however, allow the publication of the names of the parties to a divorce.

A unanimous Constitutional Court, per Jafta AJ, found that section 12 clearly infringed on the right of freedom of expression as guaranteed by section 16 of the Constitution because it was overbroad. The question was whether this limitation of the right was justified and if it was not, what remedy would be just and equitable under the circumstances.

In the process the Court reminded us that section 16 had a far broader application than merely protecting the rights of the media to publish what it deemed appropriate. Quoting from earlier case law the Court stated:

‘Press exceptionalism — the idea that journalism has a different and superior status in the Constitution — is not only an unconvincing but a dangerous doctrine.’ The constitutional promise [of freedom of expression] is made rather to serve the interest that all citizens have in the free flow of information, which is possible only if there is a free press. To abridge the freedom of the press is to abridge the rights of all citizens and not merely the rights of the press itself.”

This is a rather important reminder of the purpose of freedom of expression because politicians, other powerful people and their defenders – who often attack the media for publishing information about corruption, abuse of power or malfeasance – do not always appreciate that the right to freedom of the expression as exercised by the media is fundamental to the protection of the inherent human dignity of every South Africa.

Without the necessary information about what politicians and other powerful and rich people get up to, it is impossible for ordinary South Africans to make informed decisions about what they think their role should be in the world, which political party they support, how they feel about the important political and social issues of the day and, hence, how they want to live their lives. It is the very right to be fully human that is at stake when the right to freedom of expression is unnecessarily curtailed.

We would do well to remember this and to know that when powerful people attack the media they in effect attack the right of individuals to human dignity. After all, the apartheid state treated many South Africans as second class citizens and deprived us all of the information we needed to make informed decisions about our lives and our political choices, thus disrespecting the human dignity of all of us.

But in this case the Court proceeded to “balance” this important right against the rights of dignity and privacy in a peculiar way. Finding that the objective of section 12 was “to protect the privacy and dignity of people involved in divorce proceedings, in particular children”, it 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. This means that the media is now free to report on the details of a divorce matter but may not publish the names of any of the parties involved in a divorce when doing so.

The decision will lead to rather bizarre consequences. For example, the media has been reporting that ex-Springbok rugby captain, Joost van der Westhuizen, was caught on a video snorting cocaine and getting oral sex from a sex worker, exposing this national hero (well, a hero at least among Blue Bull supporters) as a hypocrite and a liar. However, if this information was revealed in divorce proceedings between Van der Westhuizen and his wife, the media would not have been able to identify him and we would not have been allowed to know that this supposed hero is a cheat and a liar.

The same would have been the case, say, if the wife of the late Hansie Cronje had divorced him and had revealed during the divorce proceedings that she was divorcing him because the Devil made Hansie cheat during his tenure as South Africa’s cricket captain. To this day we would not have known that Hansie was not a hero, but a person with the ethical values of a Schabir Shaik or Tony Yengeni.

And what will have happened if a politician got divorced and the wife or husband of that politician revealed during the divorce proceedings that the politician had taken a bribe from an arms company or had faked an illness to be granted medical parole? Well, we will more likely than not be deprived of this vital information.

More bizarrely, where people never got married and lived together as partners for many years and they then split up, no such ban will be in place and the media will be able to report in the most salacious detail on the acrimonious fights between the parties – within the boundaries of the common law. As research have shown that more often than not women who are financially dependent on men often wish to get married but are often denied this privilege by the men they are involved with, and as these women will thus be denied the protection of annonimity when they break up, this ruling seems also to have sexist and patriarchal undertones.

This decision does not seem to correctly balance the rights of individuals to privacy and dignity against the rights of all of us to be kept informed. Instead it places a finger on the scales (as Sachs J said in the Prince case) in favour of secrecy and a censoring of the press – but only in those cases where individuals have that magic piece of paper called a marriage certificate.

Surely, this decision cannot be squared with the Constitutional Court’s view on the right to privacy, a view that this right is like an onion – it has many layers – and thus that the protection of this right diminishes as the individual engages with others and with the world and becomes a public figure.

I would have thought that the real reason for limiting the right of the media to report on divorce proceedings would be to protect the children of that marriage. Children are after all vulnerable and cannot be blamed for the fact that their parents are public figures who have chosen to play an important part in the body politic of the country and who have therefore forfeited some of the anonymity that accompanies a boring job and life without power and influence in politics, business, sport or the arts?

It seems to me an order prohibiting the publication of details around the children of a divorcing couple (or any other unmarried couple who are engaged in an acrimonious split) and a prohibition on the publication of the names of those children, coupled with an order that specific details of a divorce could only be made public if there was demonstrable public interest in publishing the details, would have better struck a balance between the rights of the individuals and the right to freedom of the media.

To be fair, right on the last page of the judgment in the order handed down by the Court – without discussing this issue at all or explaining their reasoning – the Court states that a court can grant authorisation “in exceptional circumstances,” to publish the identity of any party to divorce proceedings. However it is unclear what these “exceptional circumstances” might be and when a court could be persuaded to make such an order.

This clause, slipped in right at the end of the judgment, also seems to nullify much of the earlier reasoning of the Court. The Court earlier rejected the option of leaving it to a judge either to order what information may be revealed or prohibiting the publication of some information on the basis that this will overburden the High Court. Now that same High Court will be allowed to order the publication of the names of parties to a divorce if  it believes that the vague and amorphous “exceptional circumstances” exist.

It seems to me this judgment was not thought through properly and was prepared in haste. Maybe the judges are so busy fighting with a certain Judge President that they forgot to apply their minds to this case and so they came up with a cute but deeply problematic solution for their problem without thinking through the consequences. I know the Constitutional Court can do better.