How to find a divorce lawyer in Cape Town, South Africa

Divorce & the right to privacy

 

Confidentiality of documents submitted during divorce proceedings. An individual's constitutional rights to privacy and the generals court rules on public access to court records.

Couple engaged in an argument.

Recently I asked a client of mine to furnish me his personal bank statement together with that of his business for the last twelve months. These statements were part of the documents which the other side had requested to be furnished. He asked me an interesting question, which I hadn’t heard somebody ask me before.

He told me that he had entered into a fee agreement with me and that in that fee agreement was a confidentiality clause wherein I had undertaken to keep as confidential any information discussed with him or any documentation which had been shown to me. That confidentiality clause is a standard clause in my fee agreements.

He was quite a high-profile businessman with a lucrative business and substantial assets. He mentioned to me that he had no such confidentiality agreement however with the other side and wanted to know why his personal bank statements had to be disclosed to them. His concern was that if he did disclose such personal documentation to them, nothing stopped them from ruining his reputation by revealing his personal financial situation to the whole public.

I explained to the client that he had a valid point but that unfortunately in terms of the court rules if the other side requested documentation we would have to furnish them with same if they are relevant to the divorce. Bank statements in a divorce matter have to be disclosed as they are vital to the outcome of the case, as they are one of the only documents which can be used to prove a person’s financial position.

But what happens if that attorney then broadcasts my financial position to the whole world? The answer to that question is that such an attorney can be reported to the law society, who would then deal with the complaint and discipline that attorney accordingly. It is indeed everybody’s right to privacy in terms of the Constitution of South Africa. Nobody can infringe on that right as the Constitution is the supreme law of the country. If that right of an individual is infringed you can be sued.

However currently in our divorce law an individual is not offered protection from a constitutional viewpoint when it comes to discovery of confidential information and documentation. One must discover and there is no way of getting around that.

The question would then arise as to whether the bank statements and confidential information would be able to be inspected by members of the public should they want to peruse the court file. The general position is that anybody can peruse any file which is kept at any court in South Africa. You can therefore read up into any divorce case of any person if you have the correct case number. The financial documentation (bank statements etc) do not however form part of the court file. They are not formal court pleadings and do not usually go into the court file and therefore the public have no access to them, but usually only the attorneys involved in the case and the magistrate or judge will.

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