Johncom Media Investments Ltd v M and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Madala J, Mokgoro J, Nkabinde J, Skweyiya J, Van Der Westhuizen J, Yacoob J, Jafta AJ and Kroon AJ
• Judgment Date: 17 March 2009
• Docket Number: CCT 08/2008
• Hearing Date: 08 May 2008
• Counsel: AJ Freund SC (with him A Cockerell) for the applicant. No appearance for the first and second respondents. I Hussain SC (with him PT Bezuidenhout) for the third respondent. AM Skelton for the amicus curiae.
• Court: Constitutional Court

Jafta AJ:

Introduction B

[1] This matter raises the difficult question of maintaining the correct balance between competing rights entrenched in the Bill of Rights. The present tension arises between, on the one hand, the right to freedom of expression, and the rights to privacy and dignity, on the other. The issue C has previously confronted this court on more than one occasion, albeit in different contexts. [1]

[2] In this case the need to balance these competing interests arises in the context of a declaration of constitutional invalidity. Section 12 of the D Divorce Act 70 of 1979 [2] (the Divorce Act) seeks 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, including information which emerges during proceedings related to the enforcement or variation of such order. On 11 February 2008 the High Court in Johannesburg declared the section invalid on the E basis that it was inconsistent with the right to freedom of expression enshrined in s 16 of the Constitution. [3] The matter comes before us as an application for confirmation of the High Court's order.

Factual background

F [3] Ms M and Mr D were married on 22 March 1975. On 22 December 1976 Ms M gave birth to a boy - PD. Later a girl was born out of the marriage. The marriage subsisted until 8 March 1995. It was dissolved by means of a decree of divorce which incorporated the parties' settlement agreement. This agreement dealt with issues such as the custody of the children and the division of their assets. PD's custody was G awarded to Mr D.

[4] In 2001 Mr D instituted action in the High Court against Ms M and PD. He sought payment of the sum of R1 009 847,51 as damages; a restoration of certain benefits paid to Ms M in accordance with the H settlement agreement; a partial rescission of the divorce order insofar as it referred to PD as his son; and an order declaring that PD was not his biological son. The action was based on the assertion that Ms M had wrongfully misrepresented to Mr D that PD was his biological son when she knew this to be false. He contended that, as a result of the alleged

Jafta AJ

misrepresentation, he had suffered damage in the amount claimed. The A action was defended and the necessary pleadings were filed.

[5] While the action was pending the editor of The Sunday Times - a newspaper owned by Johncom Media Investments Ltd (the applicant) - became aware of the case. Of the opinion that a story based on the facts of the case would be of interest to the newspaper's three million readers, B he wished to have it published in The Sunday Times of 29 April 2007. A journalist was assigned to write a story, based on the untested facts alleged in the pleadings as the case had not yet gone to trial.

High Court proceedings C

[6] Before publication, the newspaper, as a matter of ethical practice, sought comments from the affected parties. This request precipitated an urgent application for an interdict against the applicant. The application D was instituted by Ms M and PD, and was placed before Burman AJ late on 28 April 2007 - the night before the date of publication. He issued an interim interdict restraining the publication of the story. The application was premised on the ground that the publication would violate the provisions of s 12 and also infringe Ms M and PD's constitutional rights to privacy and dignity. A similar order was later obtained against members of the Independent Group of Newspapers. As a consequence the story could not be published in any newspaper in this country. E

[7] The applicant opposed the confirmation of the interim order in the High Court and launched a counter-application in terms of which it challenged the constitutional validity of s 12. The sole ground on which the validity of the section was challenged was that it is overbroad in that its prohibition against publication covers information falling outside the F scope of the rights it seeks to protect.

[8] In the affidavit deposed to by the editor of The Sunday Times, the applicant outlined its attack in the following terms:

'For the reasons that follow, I respectfully submit that s 12 of the Divorce Act is overbroad and disproportionate: G

Section 12 of the Divorce Act imposes a blanket prohibition which applies without regard to the identity of the parties to the action, or the content of the material whose publication is prohibited. In the result, s 12 does not merely prohibit publication of matter that violates the privacy of divorcing parties or that may harm the interests of children. H On the contrary, it goes much further and prohibits publication of all matter which''comes to light'' in the relevant proceedings, even if such matter is not private and even if its publication would not harm the interests of minors. I accordingly submit that the means employed in s 12 of the Divorce Act are out of all proportion to the end sought to be achieved. Simply put, s 12 goes much further than is necessary to I protect the privacy of divorcing parties and their children.

It is also a feature of s 12 that it fails to afford any discretion to the court to determine whether it is appropriate that media disclosure should be prohibited in order to serve a legitimate purpose. It prohibits publication of all information which comes to light in the course of the relevant proceedings, even if such information does not require protection. It J

Jafta AJ

A prohibits publication irrespective of whether matters of public interest are raised or whether legitimate concerns (such as the interests of children) are in jeopardy.'

[9] The editor concluded by stating:

'I respectfully submit that s 12 of the Divorce Act is overly broad since B it serves to prohibit[The Sunday Times] (and other members of the media) from reporting properly on matters before court in circumstances where there is no justifiable basis to limit such reporting. I accordingly submit that s 12 of the Divorce Act violates the constitutional right to freedom of expression in a manner that is not reasonably justifiable in an open and democratic society based on C human dignity, equality and freedom.'

[10] The constitutional challenge mounted by the applicant necessitated the joinder of the Minister for Justice and Constitutional Development (the Minister) as a party to the proceedings. The Minister was joined because she is responsible for the administration of the Divorce Act. She D filed an affidavit deposed to by Ms Theresia Bezuidenhout - the Director of Law Enforcement in her department. Ms Bezuidenhout stated that the Minister did not oppose the declaration of invalidity and that the purpose of filing the affidavit was to inform the court of steps already taken by the department in an attempt to align the Divorce Act with the Constitution. Reference was made to the investigation and the E recommendation made by the South African Law Reform Commission (the Commission) set out in its report which was submitted to the Minister's predecessor in August 2002. In its report the Commission recommended that s 12 be retained, albeit in an amended form. The Commission noted that in its current form the section is overbroad and therefore F inconsistent with s 16 of the Constitution.

[11] The Commission noted further the tension between the right to freedom of expression and the rights to privacy and dignity created by the implementation of the section in its present form. Having accepted that the section serves a legitimate purpose, the Commission did not G recommend the repeal of the entire section but that it be amended so as to create a balance between the conflicting rights. In her papers the Minister asked, without presenting any supporting facts, that the order of constitutional invalidity be suspended to give Parliament the opportunity to amend the section.

H [12] On 11 February 2008 judgment in the main and counter-application was handed down by Cassim AJ. It is not necessary to discuss her reasoning in relation to the interdict.

[13] Cassim AJ accepted the proposition that s 12 was overbroad and as a result inconsistent with the right to freedom of expression enshrined in s 16 of the Constitution. She proceeded to declare the entire section I invalid on the basis of its overbreadth. She issued the following order:

'19.1

Section 12 of the Divorce Act is hereby declared inconsistent with the Constitution and invalid.

19.2

This order of constitutional invalidity is referred to the Constitutional Court for confirmation in terms of s 167(5) of the Constitution.' J

Jafta AJ

[14] The civil case on which the story was based went to trial. Absolution A from the instance was granted, and this meant that the plaintiff was unsuccessful as he had failed to prove the alleged misrepresentation that PD was his biological son.

The issues in this court B

[15] For this court to confirm the High Court's order, it must be satisfied on two issues. The first issue is whether s 12 is indeed unconstitutional. If it is, the second issue will be whether the order issued by the High Court is a just and equitable order contemplated in s 172(1)(b) of the Constitution. [4] C

Amicus curiae

[16] The Media Monitoring Project (the Project) is a non-governmental organisation which, as its name indicates, is concerned with ensuring that media in South Africa are effectively monitored. The Project applied to be admitted as amicus curiae in this court. The application was D granted and the amicus subsequently submitted very helpful written and oral argument. We are indebted to the amicus for its important contribution.

Constitutional invalidity of s 12

[17] The answer to the question of invalidity lies in the interpretation of E s 12 measured against the...