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Has the Balance been Struck The Decision in Johncom Media Investments Limited v M 2009 4 SA 7 (CC)

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Has the Balance been Struck The Decision in Johncom Media Investments Limited v M 2009 4 SA 7 (CC)

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The case of Johncom Media Investments Limited v M 2009 4 SA 7 (CC) required of the Constitutional Court to strike a balance between the rights to privacy and the right to freedom of expression as a consequence of section 12 of the Divorce Act 70 of 1979. According to the Court, it felt that the "remedy" it provided was the best under the circumstances. However, there are certain concerns regarding the Court’s judgment which require clarification, possibly through legislative intervention.
ISSN 1727-3781
HAS THE BALANCE BEEN STRUCK? THE DECISION IN JOHNCOM MEDIA
INVESTMENTS LIMITED v M 2009 4 SA 7 (CC)
2011 VOLUME 14 No 1
Author: L Albertus
L ALBERTUS PER / PELJ 2011(14)1
216 / 234
HAS THE BALANCE BEEN STRUCK? THE DECISION IN JOHNCOM MEDIA
INVESTMENTS LIMITED v M 2009 4 SA 7 (CC)
Latiefa Albertus*
1 Introduction
In 2002 the South African Law Commission (SALC)
1
prepared a report on the
constitutionality of section 12 of the Divorce Act
2
, and highlighted various reasons
why this section could not pass constitutional scrutiny. However, section 12 was
declared unconstitutional only in 2008 by the High Court in M v Johncom Media Ltd;
Johncom Media Ltd v M
3
and later confirmed by the Constitutional Court in Johncom
Media Investments Limited v M.
4
The case, which involved, in essence, the competing constitutional rights to privacy,
5
human dignity,
6
and freedom of expression,
7
had been referred to the Constitutional
Court (CC) for confirmation of the court a quo's finding that section 12 is
unconstitutional. The CC viewed the route it took as the best under the
circumstances. If this is indeed so is, however, debatable. This note consists of a
summary of the SALC's report, the facts of the case, the court a quo's judgment, the
CC's judgment, and a critique of the latter judgment.
2 Law Commission Report
Section 12 of the Divorce Act provides:
* Latiefa Albertus LL.B (UWC); LL.M (UWC); Lecturer: Department of Private Law, University of
the Western Cape. lalbertus@uwc.ac.za
1
South African Law Commission August 2002 Report, Project 114: Publication of Divorce
Proceedings: Section 12 of the Divorce Act (Act 70 of 1979) (hereafter "Law Commission
Report").
2
Divorce Act 70 of 1979.
3
M v Johncom Media Limited; Johncom Media Limited v M (2007/06719) [2008] ZAGPHC 36 (11
February 2008) unreported case.
4
Johncom Media Investments Limited v M 2009 4 SA 7 (CC).
5
S 14 of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution).
6
S 10 of the Constitution.
7
S 16 of the Constitution.
L ALBERTUS PER / PELJ 2011(14)1
217 / 234
(1) Except for making known or publishing the names of the parties to a divorce
action, or that a divorce action between the parties is pending in a court of law,
or the judgment or order of the court, no person shall make known in public or
publish for the information of the public or any section of the public any
particulars of a divorce action or any information which comes to light in the
course of such an action.
(2) The provisions of subsection (1) shall not apply with reference to the
publication of particulars or information-
(a) for the purposes of the administration of justice;
(b) in a bona fide law report which does not form part of any other publication
than a series of reports of the proceedings in courts of law;
(c) for the advancement of or use in a particular profession or science.
(3) The provisions of subsections (1) and (2) shall mutatis mutandis apply with
reference to proceedings relating to the enforcement or variation of any order
made in terms of this Act as well as in relation to any enquiry instituted by a
Family Advocate in terms of the Mediation in Certain Divorce Matters Act,
1987.
(4) Any person who in contravention of this section publishes any particulars or
information shall be guilty of an offence 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 above provision prohibits the publication of any particulars of a divorce action or
any information which comes to light during the course of such action, other than the
names of the parties to the action, that a divorce action between the parties is
pending, and the judgment or order of the court. However, the prohibition does not
apply to the publication of any particulars or information for the purposes of the
administration of justice; in a bona fide law report; or for the advancement of or use
in a particular profession or science.
8
The SALC highlighted the fact that section 12 was an attempt to reflect the boni
mores prevalent at that time, and that the purpose of the section was to protect
spouses and children against unwarranted publicity.
9
However, developments in the
media, both in South Africa and abroad, impacted on the effect of Section 12.
Section 12 was also of application in South Africa only. Consequently, the foreign
media were not prohibited from publishing the particulars and information relating to
divorce proceedings, resulting in the purpose of section 12 being defeated.
10
8
Law Commission Report 3.
9
Law Commission Report18.
10
Law Commission Report 3.
L ALBERTUS PER / PELJ 2011(14)1
218 / 234
It was also apparent to the SALC that the South African media were not complying
with section 12, being of the opinion that the provision was unconstitutional.
11
Thus,
the constitutionality of section 12 was considered a pressing issue, especially since
non-compliance with the provision could endanger legitimate areas of non-
disclosure.
12
A balance had to be struck between the competing constitutional
rights, namely the rights to privacy, human dignity and freedom of expression. The
best interests of a child also played an important role in the SALC's investigation.
13
With regard to the right to privacy, it is said to be in the truly personal realm
14
and
encompasses the right of a person to live his or her life as such a person chooses.
15
However, as a person moves into communal relations and activities, the protection
afforded by this right minimises.
16
The South African courts regard the invasion of a
person's privacy as an impairment of dignitas.
17
With regard to the media's right to freedom of expression, it has been held that the
media plays a vital role in our democracy by providing the public with information and
a platform for the exchange of ideas which are crucial for the development of a
democratic culture.
18
The purpose of the section was to avoid situations where intimate details of the
marriage, the parties, and their children are divulged, and in that way to safeguard
the individuals' rights to privacy and dignity.
19
In this sense the section could be seen
as serving a legitimate government purpose.
20
However, at the same time the
11
Law Commission Report 4-5.
12
Law Commission Report 5.
13
Law Commission Report 22.
14
Currie and de Waal Bill of Rights Handbook 318 relying on Bernstein v Bester 1996 2 SA 751
(CC); Law Commission Report 65-66.
15
NM v Smith 2007 5 SA 250 (CC) 261G.
16
NM v Smith 2007 5 SA 250 (CC) 261G; Currie and de Waal Bill of Rights Handbook 318; Law
Commission Report 65-66.
17
Law Commission Report 54.
18
Khumalo v Holomisa 2002 5 SA 401 (CC) 417D; see further Holomisa v Argus Newspapers Ltd
1996 2 SA 588 (W) 608H609B; National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA) 1209H-I in
which it was said that it is the right and a vital function of the press to make available to the
community information and criticism about every aspect of public, political, social and economic
activity, and thus to contribute to the formation of public opinion.
19
Khumalo v Holomisa 2002 5 SA 401 (CC) 409A, in which it was said that there is a close link
between human dignity and privacy in our constitutional order.
20
Law Commission Report 16, 63; Sloth-Nielsen and Du Toit Trials and Tribulations 270271; ss
10 and 12 of the Constitution.
L ALBERTUS PER / PELJ 2011(14)1
219 / 234
general rule is that our courts are open to the public, and that the media has the right
to provide citizens with information and the public the right to receive it.
21
Although section 12 served a valuable purpose, the SALC was of the view that the
effectiveness of the provision could be achieved through less restrictive means, and
that if the right to press freedom was weighed against the purpose of section 12, the
latter was overly broad.
22
The SALC provided four options for reform.
23
Option one
involved the repeal of section 12, which would result in no general prohibition on the
publication of divorce proceedings. A person wanting to prevent publication would
have to request the court to close proceedings in terms of section 16 of the Supreme
Court Act.
24
Option two provided for the amendment of section 12 by granting courts the
discretion to make an order prohibiting any person from publishing any particulars of
a divorce action or any information or evidence which comes to light in the course of
such action. The order would not apply if the publication was for the purposes of the
administration of justice in a bona fide law report which does not form part of any
other publication than a series of reports of the proceedings in courts of law, or for
the advancement of or use in a particular profession or science.
25
Option three provided that section 12 be amended to grant a court the discretion to
make an order granting leave to any party to publish any particulars of a divorce
action or any information or evidence which comes to light in the course of such an
action.
26
A court would, in exercising its discretion, take into consideration section
28(2) of the Constitution. This option would amount to a general prohibition on the
publication of any information relating to divorce proceedings, but a court could lift
the prohibition in particular circumstances. However, the names of the parties, the
date on which the divorce action is pending in a court of law, and the judgment or
21
Law Commission Report 8; Sloth-Nielsen and Du Toit Trials and Tribulations 269, Islamic Unity
Convention v Independent Broadcasting Authority 2002 2 SA 294 (C) 310C-D; Holomisa v Argus
Newspapers Ltd 1996 2 SA 588 (W) 608D609B; Khumalo v Holomisa 2002 5 SA 401 (CC)
416F417F; National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA) 1209H1210G.
22
Law Commission Report 73.
23
Law Commission Report 94.
24
Supreme Court Act 59 of 1959; Law Commission Report 94.
25
Law Commission Report 97.
26
Law Commission Report 98.
L ALBERTUS PER / PELJ 2011(14)1
220 / 234
order of a court may be published, unless the court orders otherwise. A court would
be allowed to prohibit publication if, in its opinion, it would not be in the interests of
the child or spouses that publication be permitted. Thus, a court hearing the matter
would have a discretion to prohibit or allow publication.
27
Option four provided for the amendment of section 12 to ensure the anonymity of the
parties. Information regarding divorce proceedings could be published without
divulging the identities of the parties, especially where children would be involved.
The facts of the case and court decisions could be published, provided that the
names of the parties; their residential or business addresses; the suburb, town,
township or village where they lived; or any other information which would make it
easy to identify the parties was not divulged. However, the name of the presiding
officer and of the court where the case was heard could be published.
28
Although the SALC was of the view that option four was a worthwhile goal, it felt that
it would be difficult to ensure the anonymity of the parties in practice, and thus was of
the opinion that this option was not the sole solution to the problem.
29
In evaluating
the submissions received, the SALC came to the conclusion that option three was its
preferred option, as it would still amount to a general ban on publication, but courts
could be expected to lift the ban in appropriate cases.
30
3 Facts of the case
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.
31
27
Law Commission Report 98-99.
28
Law Commission Report 100.
29
Law Commission Report 109.
30
Law Commission Report 109.
31
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 10G-H.
L ALBERTUS PER / PELJ 2011(14)1
221 / 234
While the matter was pending, a newspaper owned by the applicant became aware
of it and wished to publish the story, being of the opinion that it would interest its
readers. The newspaper approached the parties for comment, which resulted in an
urgent application for an interdict against the applicant being brought in the High
Court. A similar order was made against the Independent Group of Newspapers,
which resulted in no newspaper being able to publish the story.
32
The applicant opposed the confirmation of the interim order in the High Court, and
launched a counter-application in which it averred that section 12 of the Divorce Act
was unconstitutional as it was too broad, in that it prohibited publication of
information falling beyond the scope of the rights it sought to protect.
33
4 High Court Decision
The High Court found that section 12 infringed the right to freedom of expression,
which right, the Court held, lies at the heart of democracy. It was held that the free
and open exchange of ideas carries its own inherent worth, is a necessary conduit
for the proper functioning of a participatory society, and assists in ensuring
accountability and responsiveness.
34
In reaching his decision Cassim, AJ held that he was influenced by the general rule
that courts are open to the public. However, section 12 has an absolute prohibition,
which is also unlimited as to time. The provision prohibits publication of all
information which comes to light during the course of divorce proceedings, even if
such information does not require protection. Furthermore, publication of matters
which could be of public interest, even where there are legitimate reasons for such
matters being made public, are prohibited by section 12.
35
32
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 11A-E.
33
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 11E-F.
34
M v Johncom Media Limited; Johncom Media Limited v M (2007/06719) [2008] ZAGPHC 36 (11
February 2008) 5[9].
35
M v Johncom Media Limited; Johncom Media Limited v M (2007/06719) [2008] ZAGPHC 36 (11
February 2008) 5-6[9].
L ALBERTUS PER / PELJ 2011(14)1
222 / 234
Cassim, AJ was persuaded that a finding that section 12 is unconstitutional would
not result in any injustice as a court retains a discretion to order the non-publication
of material which unduly and unfairly infringes the private lives of litigants. In such
instances, a court will weigh up the competing interests of the right of freedom of
expression and that of privacy in arriving at a just and fair decision. Similarly, the
rights of children will be protected, bearing in mind that the court is the upper
guardian of all children and that section 8(3) of the Child Care Act
36
prohibits the
publication of any information relating to proceedings in a children's court which
reveals or may reveal the identity of any child who is or was concerned in those
proceedings unless the Minister or the presiding commissioner are of the opinion
that this would be just and equitable in the circumstances. The court as upper
guardian of all children will always bear in mind the need to protect children.
37
Regarding the interim order, Cassim, AJ held that the judge who granted it should
have weighed up the rights to privacy as compared to the public's interest in what
was regarded as the first paternity fraud suit in South Africa. Access to the matter
was not prohibited and outsiders were not prevented from perusing the pleadings,
but publication of such proceedings was banned. According to Cassim, AJ the judge
who granted the interim order should have interpreted section 12 restrictively,
placing greater emphasis on prejudice and a balance of convenience, and the right
of the public to information.
38
Section 12 was thus declared unconstitutional and the matter was referred to the CC
for confirmation.
5 The Constitutional Court's Decision
The CC was faced with the task of maintaining the correct balance between the
competing interests involved.
39
In order for the CC to confirm the High Court's
decision, two questions required answering: firstly, if section 12 is unconstitutional,
36
Child Care Act 74 of 1983; repealed by S. 74 of the Children's Act 38 of 2005.
37
M v Johncom Media Limited; Johncom Media Limited v M (2007/06719) [2008] ZAGPHC 36 (11
February 2008) 6-7[12].
38
M v Johncom Media Limited; Johncom Media Limited v M (2007/06719) [2008] ZAGPHC 36 (11
February 2008) 8[16].
39
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 10C.
L ALBERTUS PER / PELJ 2011(14)1
223 / 234
and secondly, if the High Court's decision was a just and equitable order as
contemplated in section 172(1)(b) of the Constitution.
40
The answer to the first question lies in the interpretation of section 12 measured
against the provisions of section 16 of the Constitution.
41
It was held that textually
section 12 of the Divorce Act resulted in the prohibition of the publication of
information that comes to light during the hearing of a divorce case, regardless of the
nature of the information and whether or not the publication would infringe the rights
of the divorcing parties and the interests of their children.
42
Section 16 of the
Constitution, the Court said, defines the ordinary limits of the right to freedom of
expression, and that over and above the defined scope there may be limitations
placed on this right, provided that they meet the requirements of section 36 of the
Constitution.
43
In determining whether section 12 infringes the right to freedom of expression, a two-
stage test must be applied: if the disputed legislation limits the rights in the Bill of
Rights, and if so, whether or not the limitation can be justified in terms of section 36
of the Constitution.
44
The Court held that section 12 did not fall within any of the
exceptions listed in section 16(2)
45
of the Constitution, yet it prohibited publication of
any information which became known during a divorce action or any proceedings
related to such an action. Thus, the media's right to impart information is limited.
46
To determine whether a limitation is reasonable and justifiable in terms of section 36
involves the balancing of competing interests, which requires taking into account the
considerations contained in the section.
47
To effect a proper balance, the right
infringed must be identified and its nature and importance in a particular context
40
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 13B-C.
41
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 13D-E.
42
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 14A.
43
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 14E-F.
44
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 15A-C; this is in accordance with the
test formulated in Coetzee v Government of South Africa; Matiso v Commanding Officer, Port
Elizabeth 1995 4 SA 631 (CC). It should be noted that the case dealt with provisions in the
Interim Constitution.
45
Which deals with the types of expression that are not protected.
46
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 15D.
47
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 15E-F.
L ALBERTUS PER / PELJ 2011(14)1
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must be considered.
48
The purpose of the limitation must be determined, together
with its extent, in order to ascertain the relation between the limitation and the
purpose it is designed to achieve. Also, whether the purpose can or cannot be
achieved through less restrictive means must be considered.
49
According to the Court, section 12 limited the right to freedom of expression in a
manner that not only affected the media, but also the right of members of the public
to receive information. At the same time, the purpose of the legislation was apparent.
Its objective was to protect the privacy and dignity of people involved in divorce
proceedings, particularly children. However, the section affected the general rule that
courts are open to the public.
50
With regard to protecting the rights of children, it was said that apart from going too
far, the provision was not efficient in achieving its purpose. According to the Court,
almost thirty years ago the legislature chose to allow the publication of the identities
of children as well as of parties to a divorce action, and at the same time prohibited
publication of any evidence at a divorce trial, whether or not publication or non-
publication would protect the dignity and privacy of the relevant parties. The Court
was of the view that another way of protecting children and parties would be to
prohibit the publication of the identities of such persons as well as any evidence
which could reveal the identities of such persons. Thus, the purpose could be
achieved by less restrictive means.
51
The Court held that the limitation could not be justified and in terms of section
172(1)(a) of the Constitution, the Court was empowered to declare legislation
inconsistent with the Constitution invalid, to the extent of its inconsistency. According
to the Court, there was no other alternative but to declare the whole of section 12
inconsistent with the Constitution.
52
48
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 16C.
49
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 16C-D.
50
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 17A-D.
51
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 18B-D.
52
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 18D-F.
L ALBERTUS PER / PELJ 2011(14)1
225 / 234
The only issue argued before the Court related to whether or not any order should be
made in terms of section 172(1)(b)(ii) and the ambit of such an order. Three options
were provided during argument.
53
The Minister had requested that the declaration of invalidity be suspended for
approximately 18 months so as to afford an opportunity to have the section amended
to conform to the principles of the Constitution. The Court felt that such an order
would not be just as it would entail that an overly broad law would remain in force.
54
One cannot fault the Court for not giving effect to the Minister's request. To have
done so would have meant that while the provision was being amended, the right to
freedom of expression, which was the very reason for the legislation's being
challenged, would continue to be limited.
The second option that the Court considered was the applicant's contention that
there was no need for an order of suspension,
55
based on the High Court's
reasoning that a court retains a discretion to order non-publication of material which
unfairly infringes on the private life of a litigant; and that children's rights are also
protected in terms of section 8(3) of the Child Care Act, which prohibits the
publication of the identities of children or any information which could reveal the
identities of children who are involved in proceedings in a children's court.
56
The Court held that, if no order that mitigates the effect of striking down the provision
is made, the difference between the position of a children's court and high court
would be manifest. With regard to children's courts, there is a limited prohibition on
publication. However, a high court is required in the absence of any order mitigating
the resultant position to consider in every case before it what information should or
should not be published. This, the CC felt, would place an undue burden on high
courts and would require in many cases that the party being prejudiced place
relevant information before the High Court before such a decision is made. This
53
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 18H-I.
54
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 19C-D.
55
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 18I.
56
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 19F-H.
L ALBERTUS PER / PELJ 2011(14)1
226 / 234
proposal would thus favour the media, as no responsibility would be placed on it, and
would not protect the indigent litigant.
57
The Amicus Curiae
58
provided the Court with the option of suspending the order of
constitutional invalidity coupled with an order of reading-in. A court would be able to
prohibit publication during the period of suspension. Like the option proposed by the
applicant, the Court felt that this option would similarly place an undue burden on the
courts. A court must in every case decide whether, and the extent to which,
publication should be allowed. This proposal would also make it more difficult for the
media to publish.
59
The order made by the Court was to prohibit all publication of the identity of and any
information that might reveal the identity of any party or child in any divorce case
before any court, which was one of the options provided for in the SALC Report
60
and the position adopted in the Child Care Act.
61
The Court emphasised that it had
adopted the approach of not disclosing the identities of children and vulnerable
parties in appropriate cases. This, the Court felt, would not place an undue burden
on the courts, nor would it impose a particular burden on parties seeking publication
or those parties seeking remedies on the basis that they might be prejudiced by
publication.
62
The Court held that the order was binding and would apply to all court
proceedings and a failure to comply with such order would amount to contempt of
court. The Court, however, left room for the publication of the identity of and any
information that might reveal the identity of the parties or any child in divorce
proceedings in exceptional circumstances.
63
57
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 20A-B.
58
The Media Monitoring Project.
59
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 20B-G.
60
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 19B.
61
Child Care Act 74 of 1983, s 8(3), repealed by s 74 of the Children's Act 38 of 2005; see also s
11(2)(a) of the Domestic Violence Act 116 of 1998 which provides that no person shall publish in
any manner any information which might directly or indirectly reveal the identity of any party to
the proceedings.
62
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 21A-C.
63
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 21G-H-22A.
L ALBERTUS PER / PELJ 2011(14)1
227 / 234
5 Criticism
Although section 12 has been declared unconstitutional, the CC by no means
prevented the legislature from intervening.
64
It is unfortunate that, despite being
aware that section 12 was possibly
65
unconstitutional, the legislature never remedied
the problem, an omission which has ultimately resulted in a court having to clarify the
issue. The reality of the legislature's lack of intervention meant that during this time,
where non-disclosure was legitimate, the interests of the parties to divorce
proceedings, as well as of their children, were endangered as a result of non-
compliance with the provision by the media.
66
As said by Cassim, JA, inaction on the
part of a decision-maker is tantamount to indifference.
67
Anonymous publication was one of the options proposed by the SALC as
acknowledged by the CC. However, what is not apparent from the judgment is
whether or not the CC considered the concerns raised by the SALC regarding
anonymous publication. In the SALC Report it was said that this option might have
limited value for parties involved in a high-profile case, and that the chances of
preventing such information leaking out were slight. The effect of anonymous
publication might further create social problems as a result of curiosity on the part of
the public, which could consequently cause speculation as a result of which the
private lives of many unsuspecting personalities might come under scrutiny, which
would in turn create a loss of privacy.
68
Could high-profile cases possibly be those
which would fall under "exceptional circumstances"? If so, the court would have to
decide whether the identity of the parties or information which would reveal the
identity of the parties could be published. Would courts look at whether or not
publication would be in the interests of justice (which is a difficult concept in itself)
69
to determine if a particular matter falls within the category of "exceptional
64
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 21D-E.
65
See Law Commission Report and Sloth-Nielsen and Du Toit Trials and Tribulations 266-277 on
why it was argued that s 12 would most likely not survive constitutional scrutiny.
66
Law Commission Report 5.
67
M v Johncom Media Limited; Johncom Media Limited v M (2007/06719) [2008] ZAGPHC 36 (11
February 2008) 6[11].
68
Sloth-Nielsen and Du Toit Trials and Tribulations 277, Law Commission Report 101.
69
Carstens 2008 Obiter 297.
L ALBERTUS PER / PELJ 2011(14)1
228 / 234
circumstances"? When would it be in the interests of justice to allow the publication
of the parties' identities?
A further concern raised was that this option is unworkable in practice, since it is not
possible to determine if the details in a story would enable the public to establish a
party's identity.
70
It could also be argued that the public has an interest in knowing
the status of the parties concerned, and should therefore be informed accordingly.
71
These concerns were not addressed by the Court.
72
It is therefore not clear how the
Court could state that the order it made was the most suitable under the
circumstances.
It is thus recommended that measures be put in place to assist the media in this
regard, especially where the proceedings involve a high-profile case, in order to
ensure that the media does not overstep the boundaries of the court order.
What we know is that the identities of the parties are not to be revealed, nor any
information that could lead to revealing the identities of the parties. The CC provided
no guidance as to which information could possibly fall within the latter category. In
its report the SALC highlighted the following as information which could result in the
identity of the parties being identified: the name, title, pseudonym or alias of the
person; the address of any premises at which the person resides or works, or the
locality in which such premises are situated; the physical description or the style of
dress of the person; any employment or occupation engaged in, profession
practised, or calling pursued by the person, or any official or honorary position held
by the person; the relationship of the person to identified relatives of the person, or
the association of the person with identified friends or identified business, official or
professional acquaintances of the person; the recreational interests or the political,
philosophical or religious beliefs or interests of the person; or any real or personal
property in which the person has an interest or with which the person is otherwise
associated.
73
Does one assume that this information is the same as that which the
70
Law Commission Report 108.
71
Law Commission Report 101.
72
Johncom Media Investments Limited v M 2009 4 SA 7 (CC) 21D.
73
Law Commission Report 101-102. See Clause 38 of the Draft Judicial Matters Amendment Bill,
2010 (DOJ 2010 www.justice.gov.za), which provides a list of information which could result in
L ALBERTUS PER / PELJ 2011(14)1
229 / 234
CC had in mind? If so, then the concerns raised by the SALC regarding the practical
difficulties which anonymous publication could result in, especially in high-profile
cases, should not only have been obvious to the Court but should have been
addressed as well.
It is also not clear whether the order applies internationally. If not, then the purpose
of the order is defeated, as was that of section 12. The order would serve no
purpose if it did not apply equally to the foreign media, as the very information which
the CC sought to protect could be divulged in foreign newspapers.
Although the CC felt that the order it made would be less burdensome on the High
Courts, it still gives the courts discretion to decide in "exceptional circumstances"
whether the information should be published or not. Does deciding in exceptional
circumstances if the identity of the parties may be published not amount to
exercising a discretion? It thus appears that the High Courts will unfortunately be
burdened with the very task which the CC attempted to avoid when making its order,
namely that of having to decide whether particular information can or cannot be
published, a responsibility which could result in a piecemeal approach to striking a
balance between the rights involved.
That the CC provided the legislature with an option to intervene also leaves one with
the impression that it was not as confident about its decision as it made itself out to
be. If the balance between the competing rights had indeed been struck, then there
would be no need for the legislature to intervene.
The judgment was criticised for its lack of information also, as substantial
submissions had been made to the Court with suggested solutions regarding the
development of the rights to privacy and freedom of expression. Although the order
aims at protecting the privacy of the adults and children involved in divorce matters,
the Court failed to fully engage with the law relating to privacy. Instead, the CC
the identity of the parties being revealed. It should be noted that the type of information is
identical (although the wording in Clause 38 is different from the wording in the SALC's Report)
to that which was provided by the SALC. It is thus argued that although a context may be given
to the type of information the CC had in mind, the legislature should have had regard to the
practical difficulties the SALC highlighted in its Report. See further Heaton 2010 JQR regarding
the various amendments the Bill will bring about in respect of the Divorce Act.
L ALBERTUS PER / PELJ 2011(14)1
230 / 234
focused mainly on a limitations argument in relation to freedom of expression. This
approach, it is felt, resulted in the Court merely replacing one broad law with another,
in a matter which required a carefully reasoned decision based on constitutional
law.
74
According to Currie, if one opens almost any work on the right to privacy, whether on
law or philosophy, it will begin by lamenting the difficulty of defining the concept.
75
Neethling is of the opinion that providing clarity on the de facto nature of privacy
would create legal certainty and enhance the ability of the courts to articulate,
develop and apply the principles protecting privacy.
76
Davis states that recent
controversies in the legal community indicate that South Africans may not even be
able to agree on the meaning and implications of freedom of expression, much less
on the nature of privacy.
77
The case thus created the perfect opportunity for the CC
to assist in giving the conflicting rights a proper context. However, it failed to do so,
and it is now up to the High Courts to authorise publication in exceptional
circumstances and to develop precedents as to what constitute exceptional
circumstances.
78
It is thus recommended that the legislature make use of the opportunity afforded it by
the CC to intervene in order to clarify these concerns and to avoid a piecemeal
approach by the High Courts in attempting to strike the balance which the CC failed
to do.
6 Conclusion
Although the CC declared section 12 of the Divorce Act unconstitutional, it is felt that
the judgment did not do justice to the issues involved in striking a balance between
the competing rights involved. It is unfortunate that the CC did not address the
matter fully, as this omission now leaves room for possible litigation in respect of an
issue which the CC should have addressed. If the legislature fails to intervene, a
74
Du Toit 2009 JQR.
75
Currie 2008 TSAR 550; see also Neethling 2005 SALJ 18.
76
Neethling 2005 SALJ 27-28.
77
Davis 2008 SALJ 214.
78
Du Toit 2009 JQR.
L ALBERTUS PER / PELJ 2011(14)1
231 / 234
piecemeal approach in striking a balance between the conflicting rights will be the
end result, and it may be a long wait before a balance between rights is finally struck.
L ALBERTUS PER / PELJ 2011(14)1
232 / 234
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L ALBERTUS PER / PELJ 2011(14)1
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List of abbreviations
Constitutional Court
Department of Justice and Constitutional Development
Juta's Quarterly Review of South African Law
South African Law Commission
South African Law Journal
Tydskrif vir die Suid-Afrikaanse Reg
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Article
Access to the medical records of a patient is generally governed by common law principles relating to consent, applicable legislation and ethical considerations. In the normal course of events a medical practitioner or health-care establishment may not disclose/release the medical records of a patient unless the patient has consented to such disclosure/release or, in the absence of consent, there is a legal duty on the medical practitioner/health establishment, or such disclosure/release is justified in terms of a recognized ground of justification/legal defence such as statutory authority, a court order, necessity, therapeutic privilege, unauthorized administration or public interest. In essence the protection of the patient’s confidentiality in terms of the common law, applicable legislation and medico-legal ethics, is an articulation of the constitutional protection of the rights to privacy (s 14), dignity (s 10), bodily integrity (s 12) and even equality (s 9). In terms of the constitutional construction and interpretation of these rights, it is clear that these rights are not absolute but may be limited if it is justifiable and reasonable in an open and democratic society ascontemplated in section 36 of the Constitution. The right to privacy of one’s medical records can, however, be contentious, when this right is weighed against the duty to disclose, specifically if the party seeking disclosure or release thereof, is the press claiming that disclosure is in the public interest and a manifestation of its constitutional right to freedom of expression. The boundary conditions that come into play when the right to privacy, dignity, bodily integrity and equality are pitted against the right to freedom of expression, become even more problematic when the patient whose medical records are sought to be disclosed/released by the press is a public figure, a sports star, a celebrity or, as in the present case under discussion, the South African Minister of Health.
"The concept of privacy in the South African Constitution: Reprise"
  • I Currie
"The gap between constitutional text and social practice: the role of the press"
  • D Davis
"The right to privacy for children in divorce matters"
  • C Du Toit
"Draft Judicial Matters Amendment Bill, 2010"
  • J Heaton
"The concept of privacy in South African law"
  • J Neethling