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Protecting a child's identity in a divorce

The abovementioned issue came up recently in our case law in the 2009 Constitutional Court decision of Johncom Media Investments Ltd v M (First Respondent), PD (Second Respondent) and Minister of Justice and Constitutional Development (Third Respondent).

In the abovementioned case Ms M and Mr D got married on 22 March 1975. On 22 December 1976 Ms M gave birth to a boy – PD. A girl was later also born during the marriage. The marriage never worked out and the parties got divorced in 1995. In terms of the divorce order the husband was granted custody of the minor boy.

However, six years later the man sued his ex-wife and the boy. He alleged that he was not the biological father of the boy, PD, and that his ex-wife had known this all along but had created the mistaken belief in his mind that he was the biological father. He sued them for over R1 million and partial rescission of the divorce order.

During the pending action Johncom Media (owner of the Sunday Times) became aware of the case. They wanted to report on it. Ms M and PD sought to interdict them from reporting. They said that reporting would violate the provisions of Section 12 of the Divorce Act and also their Constitutional rights to privacy and dignity.

Section 12 of the Divorce Act 70 of 1979 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.

The newspaper in turn however opposed the application. They launched a counter-application and challenged the constitutional validity of Section 12 of the Divorce Act.

The court eventually decided that Section 12 of the Divorce Act is inconsistent with the Constitution and is invalid. The court furthermore decided that subject to authorisation granted by a court in exceptional circumstances, the publication of the identity of, any information that may reveal the identity of, any party or child in any divorce proceedings before any court is prohibited.

The abovementioned case is a very interesting one. It is not often in our case law that provisions of the Divorce Act are challenged from a constitutional viewpoint. The case also illustrates the extremes to which the courts go to protect the identity of any party in divorce proceedings, particularly the identity of a child.

I personally am of the view that the decision was the correct one. The article dealing with the divorce case would have been published for nearly three million readers to The Sunday Times to read. The case was still pending and had not yet gone to trial. It would have been highly unconstitutional for the article to have been published.

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