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South Africa: State Changes Tack in Divorce Law Hearing
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Business Day (Johannesburg)
9 May 2008
Posted to the web 9 May 2008
Ernest Mabuza
Johannesburg
COUNSEL for Justice Minister Brigitte Mabandla, Adv Ismail Hussain, had trouble explaining to the Constitutional Court yesterday why the minister's written submissions on the constitutionality of the Divorce Act did not match his oral submissions.
Mabandla, in her written submissions, did not oppose the recent striking down of the section prohibiting the publication of any information that came to light during the court action, but said the order of invalidity should be suspended for 18 months while the legislature amended the law. However, Hussain told the court that it was not necessary for the court to suspend the order of invalidity.
When Judge Johann van der Westhuizen told him that his proposal was not in the papers as the written submissions stated that the court should not usurp the powers of the legislature, Hussain replied that the written submissions before the court were an "embarrassment".
Hussain said his new instructions were that the suspension of the order of invalidity was unnecessary because there were adequate protections in law for the rights of children.
The owners of the Sunday Times were applying for the confirmation of an order issued by the Johannesburg High Court in February declaring section 12 of the Divorce Act unconstitutional.
A report the newspaper wanted to publish related to a court action instituted by a man against his former wife for the payment of R1m in damages and restoration of benefits paid to her as a result of a settlement agreement reached in their divorce proceedings.
The lawsuit was based on the claim she had lied about the paternity of one of her children .
The former wife applied for an interdict against the news-paper, based on section 12.
The Sunday Times had to cancel its print run at the 11th hour, but was allowed by the court to print the story the following week.
Adv Alec Freund, for the newspaper, said it was beyond dispute that section 12 infringed on the right to freedom of expression, as it was too broad.
He said it prohibited publication of any information that came to light in a divorce action.
"One may not publish the pleadings, one may not publish the evidence, one may not publish submissions of counsel on a factual and legal basis.
"(The section) does more than is necessary to achieve the purpose of protecting the privacy of the couple and their children."
He said it was even unlawful for the Sunday Times to publish details about the parties even if they were not named.
Freund said the court should immediately strike down the section because the courts had powers to hold proceedings in camera if there were considerations of privacy.
Ann Skelton, representing friends of the court the Media Monitoring Project, said there was no dispute about the unconstitutionality of the section, but children needed to be protected.
Skelton said in the past, divorce proceedings mostly concerned the infidelities of partners in the marriage, but nowadays divorce proceedings were about the custody of children.
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She said acrimonious litigation between parents often included allegations of parental alienation or abuse.
Skelton said these facts might be raised in the media legitimately, and be in the best interests of the child to provide a presiding officer with all the relevant information needed to make a decision, but the child's privacy and dignity needed to be protected during the course of the proceedings.
The court reserved judgment.
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