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[2009] ZACC 5
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Johncom Media Investments Limited v M and Others (CCT 08/08) [2009] ZACC 5; 2009 (4) SA 7 (CC) ; 2009 (8) BCLR 751 (CC) (17 March 2009)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 08/08
[2009] ZACC 5
JOHNCOM MEDIA INVESTMENTS LIMITED
Applicant
versus
M
First Respondent
PD
Second Respondent
MINISTER FOR JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Third Respondent
with
MEDIA MONITORING PROJECT
Amicus Curiae
Heard
on : 8 May 2008
Decided
on : 17 March 2009
JUDGMENT
JAFTA AJ:
Introduction
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 has previously confronted this Court on more
than one occasion, albeit in different contexts.
1
In
this case, the need to balance these competing interests arises in
the context of a declaration of constitutional invalidity.
Section
12
of the
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 basis
that it was inconsistent with the right to
freedom of expression enshrined in section 16 of the Constitution.
3
The matter comes before us as an application for confirmation of
the High Court’s order.
Factual
background
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 awarded to Mr D.
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
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 misrepresentation, he
had suffered damage in the amount claimed. The action
was defended
and the necessary pleadings were filed.
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, 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
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 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 section
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.
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 section 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 scope of the rights
it seeks to
protect.
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
section 12
of the
Divorce Act is
overbroad and disproportionate:
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,
section 12
does not merely prohibit publication of matter that violates the
privacy of divorcing parties or that may harm the interests
of
children. 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
section 12
of the
Divorce Act are
out of all proportion to the end sought to be
achieved. Simply put,
section 12
goes much further than is
necessary to protect the privacy of divorcing parties and their
children.
It is also a feature of
section
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 prohibits publication irrespective of whether
matters of public
interest are raised or whether legitimate concerns (such as the
interests of children) are in jeopardy.”
The
editor concluded by stating:
“
I respectfully submit that
section 12
of the
Divorce Act is
overly broad since 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
section 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 human dignity, equality and freedom.”
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
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
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 section 12 be retained, albeit in an
amended form. The Commission noted that in its current form
the
section is overbroad and therefore inconsistent with section 16 of
the Constitution.
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 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.
On
11 February 2008 judgment in the main and counter-application was
handed down by Cassim AJ. It is not necessary to discuss
his
reasoning in relation to the interdict.
Cassim
AJ accepted the proposition that section 12 was overbroad and as a
result inconsistent with the right to freedom of expression

enshrined in section 16 of the Constitution. He proceeded to
declare the entire section invalid on the basis of its over
breadth. He 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 section 167(5)
of the Constitution.”
The
civil case on which the story was based went to trial. Absolution
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
For
this Court to confirm the High Court’s order, it must be
satisfied on two issues. The first issue is whether section
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 section 172(1)(b) of the Constitution.
4
Amicus
curiae
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 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 section 12
The
answer to the question of invalidity lies in the interpretation of
section 12 measured against the provisions of section
16 of the
Constitution, which entrenches the right to freedom of expression.
Section 12 reads:
“
Limitation of publication of
particulars of divorce action—
(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.
The provisions of
subsection (1) shall not apply with reference to the publication
of particulars or information—
(a) for the purpose 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; or
(c) for the advancement of or
use in a particular profession or science.
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.
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.”
Textually,
the section means that apart from the specified limited
information, publication of information that comes to light
during
a hearing of the divorce case is prohibited irrespective of the
nature of the information, and regardless of whether
the
publication will infringe the rights of the divorcing parties and
the interests of their children.
Section
16 of the Constitution confers upon everyone the right to freedom
of expression. The section itself limits the right.
This does
not, however, mean that the right is insulated against the general
limitation contemplated in section 36 of the
Constitution.
5
Nor does the Constitution accord hierarchical precedence to any
particular right entrenched in the Bill of Rights over other
rights
referred to therein.
Section
16 of the Constitution provides:
“
(1) Everyone has the right
to freedom of expression, which includes—
(a) freedom of the press and
other media;
(b) freedom to receive or
impart information or ideas;
(c) freedom of artistic
creativity; and
(d) academic freedom and
freedom of scientific research.
(2) The right in subsection (1)
does not extend to—
(a) propaganda for war;
(b) incitement of imminent
violence; or
(c) advocacy of hatred that is
based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm.”
Section
16 thus defines the ordinary bounds of the right to freedom of
expression. But over and above that defined scope, there
may be
limitations placed on the right, provided that they meet the
requirements of section 36 of the Constitution. In a unanimous

judgment of this Court in
Laugh It Off Promotions CC v SAB
International (Finance) BV t/a Sabmark International,
6
Moseneke J said:
“
We are obliged to delineate
the bounds of the constitutional guarantee of free expression
generously. Section 16 is in two parts:
the first subsection sets
out expression protected under the Constitution. It indeed has an
expansive reach which encompasses
freedom of the press and other
media, freedom to receive or impart information or ideas, freedom of
artistic creativity, academic
freedom and freedom of scientific
research. The second part contains three categories of expression
which are expressly excluded
from constitutional protection. It
follows clearly that unless an expressive act is excluded by s 16(2)
it is protected expression.
Plainly, the right to free expression
in our Constitution is neither paramount over other guaranteed
rights nor limitless.
As Kriegler J in
S v Mamabolo
puts it:
‘With us it is not a pre-eminent freedom ranking above all others.
It is not even an unqualified right.’ In appropriate

circumstances authorised by the Constitution itself, a law of
general application may limit freedom of expression.” (Footnotes

omitted.)
In
determining whether section 12 infringes the right to freedom of
expression, a court has to apply a two-stage test. In
Coetzee v
Government of the Republic of South Africa
,
7
the test was formulated as follows:
“
This Court has laid down
that, ordinarily, one adopts a two-stage approach for determining
the constitutionality of alleged violations
of rights in chapter 3
of the Constitution. The first stage is an enquiry whether the
disputed legislation or other governmental
action limits rights in
chapter 3 of the Constitution. If so, the second stage calls for a
decision whether the limitation can
be justified in terms of s 33(1)
of the Constitution.” (Footnote omitted.)
Although
Coetzee
was concerned with the interim Constitution, the
final Constitution is structured in the same way and requires the
same approach.
The
prohibition contained in section 12 does not fall within any of the
exceptions listed in section 16(2) of the Constitution.
Yet, it
prohibits publication of any information which comes to light
during a divorce action or any proceedings related thereto.
This
constitutes a limitation of the media’s right to impart
information. It brings us to the second leg of the enquiry,

namely, whether the limitation is reasonable and justifiable as
envisaged in section 36 of the Constitution.
8
Justification
The
process of determining whether a limitation is reasonable and
justifiable within the contemplation of section 36 involves
the
balancing of competing interests. It entails taking account of the
considerations enumerated in section 36. This process
has been
described as a proportionality analysis.
9
In
National Coalition for Gay and Lesbian Equality and Another
v Minister of Justice and Others,
10
the limitation exercise was defined in these terms:
“
The balancing of different
interests must still take place. On the one hand there is the right
infringed; its nature; its importance
in an open and democratic
society based on human dignity, equality and freedom; and the nature
and extent of the limitation.
On the other hand there is the
importance of the purpose of the limitation. In the balancing
process and in the evaluation
of proportionality one is enjoined to
consider the relation between the limitation and its purpose as well
as the existence of
less restrictive means to achieve this purpose.”
(Footnote omitted.)
To
effect a proper balance, the right infringed must be identified,
and its nature as well as its importance in a particular
context
must be considered. The purpose of the limitation must be
pin-pointed, together with its extent, so as to determine
the
relation between the limitation and the purpose it is designed to
achieve. We must also consider whether the purpose could
be
achieved by less restrictive means.
No
party contended that the section 36 justification requirements were
met. It is nevertheless necessary to deal with the question
of
justification briefly.
The
importance of the right to freedom of expression has been
acknowledged by this Court. In
Islamic Unity Convention v
Independent Broadcasting Authority and Others
,
11
this right was described thus:
“
Notwithstanding the fact
that the right to freedom of expression and speech has always been
recognised in the South African common
law, we have recently emerged
from a severely restrictive past where expression, especially
political and artistic expression,
was extensively circumscribed by
various legislative enactments. The restrictions that were placed
on expression were not only
a denial of democracy itself, but also
exacerbated the impact of the systemic violations of other
fundamental human rights in
South Africa. Those restrictions would
be incompatible with South Africa’s present commitment to a
society based on a ‘constitutionally
protected culture of openness
and democracy and universal human rights for South Africans of all
ages, classes and colours’.
As pointed out by Kriegler J in
Mamabolo
,
‘
. . .freedom to speak one's
mind is now an inherent quality of the type of society contemplated
by the Constitution as a whole
and is specifically promoted by the
freedoms of conscience, expression, assembly, association and
political participation protected
by ss 15-19 of the Bill of
Rights’.” (Footnotes omitted.)
The
prohibition in section 12 limits the right to freedom of expression
in a manner that does not only affect the media but
also the right
of members of the public to receive information. In
Midi
Television (Pty) Limited t/a E-TV v Director of Public Prosecutions
(Western Cape)
,
12
the Supreme Court of Appeal said:
“
It is important to bear in
mind that the constitutional promise of a free press is not one that
is made for the protection of
the special interests of the press.
As pointed out by Anthony Lewis, in a passage that was cited by
Cameron J in
Holomisa v Argus Newspapers Ltd
: ‘Press
exceptionalism — the idea that journalism has a different and
superior status in the Constitution — is not only
an unconvincing
but a dangerous doctrine.’ The constitutional promise is made
rather to serve the interest that all citizens
have in the free flow
of information, which is possible only if there is a free press. To
abridge the freedom of the press is
to abridge the rights of all
citizens and not merely the rights of the press itself.”
(Footnotes omitted.)
The
purpose of the limitation is apparent. The objective is to protect
the privacy and dignity of people involved in divorce
proceedings,
in particular children. However, as pointed out by the High Court
and contended by the applicant and the amicus
the prohibition also
affects “the general rule that courts are open to the public”.
13
As the High Court further pointed out:
14
“
Section 12
of the
Divorce
Act
. . . has an absolute prohibition. The prohibition, moreover,
is unlimited as to time.
Section 12
prohibits publication of all
information which comes to light in the course of the divorce
proceedings, even if such information
does not require protection.
Matters of public interest which are raised in a divorce action and
where there are legitimate
reasons for such issues to be raised in
public are prohibited.”
But
the chosen method of protecting the rights of children, quite apart
from going too far, is also not particularly efficient
in achieving
the purpose. The legislature, almost thirty years ago, 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 the
publication of any evidence at a divorce trial,
whether or not the
prohibition of publication was necessary to protect the relevant
privacy and dignity interests. Yet as
will be shown below,
15
another way to protect children and parties would, in my view, be
to prohibit publication of the identity of the parties and
of the
children. If that were to be done, the publication of the evidence
would not harm the privacy and dignity interests
of the parties or
the children, provided that the publication of any evidence that
would tend to reveal the identity of any
of the parties or any of
the children is also prohibited. The purpose could be better
achieved by less restrictive means.
In
the circumstances it must be held that the limitation cannot be
justified. Section 172(1)(a) of the Constitution empowers
courts
of competent jurisdiction to declare legislation inconsistent with
the Constitution to be invalid, but only to the extent
of the
inconsistency. A limited declaration of invalidity is possible
only if the good can be severed from the bad either
notionally or
textually. It is not possible to achieve that result here. In the
circumstances there is no alternative but
to declare the whole of
the impugned provision inconsistent with the Constitution.
Remedy
Section
172(1) provides:
“
When deciding a
constitutional matter within its power, a court—
(a) must declare that any law
or conduct that is inconsistent with the Constitution is invalid to
the extent of its inconsistency;
and
(b) may make any order that is
just and equitable, including—
(i) any order limiting the
retrospective effect of the declaration of invalidity; and
(ii) an order suspending the
declaration of invalidity for any period and on any conditions, to
allow the competent authority
to correct the defect.”
The
only issue that was debated in argument before us concerned the
question whether any order in terms of section 172(1)(b)(ii)
should
be made if the section were to be struck down, and if so, the ambit
of the order concerned.
Three
options emerged during the argument before us. The applicant
contended that there was no need for any order of suspension
at
all. The Minister urged that the declaration of invalidity should
be suspended in order to enable Parliament to cure the
defect. The
amicus agreed with the Minister but suggested that, in the interim,
a proviso be read into section 12 to create
a discretion for the
court to allow the publication of certain matters. The effect of
this would be to permit publication
of the material covered by
section 12 only if so ordered by a court.
There
is, however, a fourth possibility which, though not commended by
any of the parties, emerges from the material put up
by the amicus
in support of the invalidity argument and canvassed in the report
of the Commission. That route entails an order
preventing
publication of the identities of the parties and children in
divorce proceedings as well as any material that tends
to reveal
the identities of one or other of the people to be protected.
I
discuss each of these approaches in turn.
Implementing
the suggestion of the Minister (suspension without more) would
result in neither justice nor equity. An unduly
broad law that
prevents publication of evidence before a court will remain in
force. And what is more, the period during which
it would remain
in force is not a short one. The Minister suggests 18 months. She
contends that the dignity and privacy of
children and parties to a
divorce would otherwise suffer. This is not a good enough reason
to allow the continued operation
of an egregious law. I can think
of no reason why an unmitigated suspension would be justified.
The
way pointed to by the applicant is also, in my view, not wholly
just and equitable. The applicant, in effect, supports
the
following reasoning of the High Court:
“
I am persuaded that the
finding that section 12 is unconstitutional would not result in any
injustice. First, a court retains
a discretion to order the
non-publication of material which unduly and unfairly infringes in
the private life of a litigant.
The court will weigh up the
competing interest of the rights of freedom of expression and that
of privacy in arriving at a just
and fair decision. Similarly, the
rights of children are protected; bearing in mind that the court is
the upper guardian of
all children, and section 8(3) of the Child
Care Act, 74 of 1983 prohibits the publication in any manner
whatever 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 is of the opinion that this would be just and
equitable
in the circumstances. The court as upper guardian of
children will always bear in mind the need to protect children.”
16
If
this Court makes no order mitigating the effect of its striking
down the provision, the difference between the position of
a
children’s court and the High Court is manifest. There is a
limited prohibition on publication as far as a children’s
court
is concerned.
17
When it comes to the High Court, however, the absence of any order
mitigating the resultant position would require a Court
to consider
in every case before it what information should be published and
what should not. In my view, this places an undue
burden on the
High Court and would require, in many cases, the party to be
prejudiced to place the relevant arguments before
the High Court so
that a decision can be made. The applicant’s position would thus
unduly favour the publisher and place
no responsibility on those
intending to publish. It would not accord appropriate protection
to the indigent litigant. I will
therefore not go in this
direction.
The
third possibility entails a suspension of the order of
constitutional invalidity coupled with an order of reading-in. The

effect of this relief would be to authorise any court, during the
period of suspension, to prohibit publication if it were

appropriate to do so. The applicant objected to this approach on
two grounds. It submitted, first, that this Court is not
competent
to read-in to provide interim relief as reading-in can be resorted
to only in the process of curing the defect.
If this is not done,
at the stage when constitutional validity is considered, it cannot
be done, so the argument went, at the
stage of remedy. I do not
agree. The argument entails an unduly limited conception of this
Court’s power to make any order
that is just and equitable. If
the order suggested by the applicant were, in the opinion of this
Court, to be just and equitable,
nothing precludes that order from
being made.
I
am, however, of the view that this option too does not accord fully
with the just and equitable result that this Court is
obliged to
achieve. As is the case with the order suggested by the applicant,
the suggestion of the amicus would also result
in placing an
additional burden on a court in every divorce case. A court must
in every case decide whether, and the extent
to which, publication
should be allowed. The applicant’s position is perfectly
understandable, for while the route it suggests
favours the media
at the expense of indigent people, the position adopted by the
amicus makes it more difficult for the media
to publish the
information. I intend to make an order that does not unduly favour
either the media or the litigant.
I
come now to the fourth and final possibility. As noted above, this
Court could in terms of section 172(1) prohibit all publication
of
the identity of and any information that may reveal the identity of
any party or child in any divorce case before any court.
This is
the position adopted in the Child Care Act.
18
It is also important to emphasise that this Court has adopted the
approach of not disclosing the identities of children and

vulnerable parties in all appropriate cases.
19
In my view, this is an appropriate order. Such an order will not
place an undue burden on the courts nor will it impose a
particular
burden on parties seeking publication or those parties seeking
remedies on the basis that they may be prejudiced
by publication.
The
order concerns the publication of court proceedings, and it is
entirely appropriate for this Court to determine the minimum

standards that must apply in relation to publication of the
evidence and material before a court. Furthermore, the Court,
as
upper guardian of the child, has a particular responsibility to act
in the best interests of the child. The order is binding
and will
apply to all court proceedings. Failure to comply with this order
will amount to contempt of court. Of course the
legislature may
choose to intervene at any time.
Costs
It
would not have been necessary for the applicant to seek judicial
intervention absent the unconstitutional provision of the
Divorce
Act. The
applicant is therefore entitled to costs in both the High
Court and in this Court.
Order
The
following order is made:
The order of the High Court in Johannesburg declaring
section
12
of the
Divorce Act 70 of 1979
to be inconsistent with the
Constitution and invalid is confirmed.
Subject to authorisation granted by a court in exceptional
circumstances, the publication of the identity of, and
any
information that may reveal the identity of, any party or
child in any divorce proceeding before any court
is
prohibited.
The Minister is ordered to pay the applicant’s costs in the
High Court and in this Court, including the costs
of two
counsel.
Langa
CJ, Kroon AJ, Madala J, Mokgoro J, Nkabinde J, Skweyiya J, Van der
Westhuizen J and Yacoob J concur in the judgment of
Jafta AJ.
Counsel for the Applicant: Advocate AJ Freund SC and Advocate A
Cockrell instructed by Bell Dewar & Hall.
Counsel for the Third Respondent: Advocate I Hussain SC and Advocate
PT Bezuidenhout instructed by the State Attorney.
Counsel for the Amicus Curiae: Advocate AM Skelton instructed by the
Centre for Child Law.
1
NM and Others v Smith and Others (Freedom of Expression Institute
as Amicus Curiae)
[2007] ZACC 6
;
2007 (5) SA 250
(CC);
2007 (7)
BCLR 751
(CC) at paras 144-8; and
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at
paras 21-8.
2
For the full text of section 12 see [17] below.
3
For the full text of section 16 see [20] below.
4
For the full text of section 172 of the
Constitution see [32] below.
5
See n 8 below.
6
[2005] ZACC 7
;
2006 (1) SA 144
(CC);
2005 (8) BCLR 743
(CC) at para
47.
7
[1995] ZACC 7
;
1995 (4) SA 631
(CC);
1995 (10) BCLR 1382
(CC) at
para 9; see also
Moise v Greater Germiston Transitional Local
Council: Minister of Justice and Constitutional Development
Intervening (Women’s
Legal Centre as Amicus Curiae)
[2001]
ZACC 21
;
2001 (4) SA 491
(CC);
2001 (8) BCLR 765
(CC) at para 7;
S
v Williams and Others
[1995] ZACC 6
;
1995 (3) SA 632
(CC);
1995
(7) BCLR 861
(CC) at para 54.
8
Section 36 provides:
“
(1) The rights in the Bill of
Rights may be limited only in terms of law of general application to
the extent that the limitation
is reasonable and justifiable in an
open and democratic society based on human dignity, equality and
freedom, taking into account
all relevant factors, including—
(a) the
nature of the right;
(b) the
importance of the purpose of the limitation;
(c) the
nature and extent of the limitation;
(d) the
relation between the limitation and its purpose; and
(e) less
restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any
other provision of the Constitution, no law may limit any right
entrenched
in the Bill of Rights.”
9
Phillips and Another v Director of Public
Prosecutions and Others
[2003] ZACC 1
;
2003 (3) SA 345
(CC);
2003 (4) BCLR 357
(CC) at para 22.
10
[1998] ZACC 15
;
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC) at para
35.
11
[2002] ZACC 3
;
2002 (4) SA 294
(CC);
2002 (5) BCLR 433
(CC) at para
27.
12
[2007] ZASCA 56
;
2007 (5) SA 540
(SCA);
2007 (9) BCLR 958
(SCA) at
para 6. See generally
South African
Broadcasting Corporation Limited v National Director of Public
Prosecutions
[2006] ZACC 15
;
2007 (1)
SA 523
(CC);
2007 (2) BCLR 167
(CC). In particular paragraph 42
reads:
“
While
the SABC, as the national public broadcaster, is obviously a bearer
of section 16(1) rights, the general public also has
a fundamental
constitutional right to freedom of expression; indeed, it may be
said that the primary bearer of the right to ‘receive
information
and ideas’
is
the general public. It is also true, as contended by counsel for
the
SABC, that openness and accountability
are underlying values of the Constitution and that, in accordance
with the principle of
open justice, the public should, as far as
possible, be informed and aware of what takes place in our courts.
Where a court
exercises a discretion under section 173, it must
ensure that if, in so doing, it impinges upon rights entrenched in
chapter
2 of the Constitution, the extent of the impairment of
rights is proportional to the purpose the court seeks to achieve.
We
do not need to consider here whether this is a section 36
limitation analysis or not. It is clear that it is a
proportionality
enquiry that a court exercising its section 173
powers must undertake.” (Footnote omitted.)
13
M & Another v Johncom Media Limited;
Johncom Media Limited v M and Others
Case
No 2007/06719, Witwatersrand Local Division, 11 February 2008,
unreported, at para 9.
14
Id.
15
See [35] and [41] below.
16
Id at para 12.
17
The Child Care Act 74 of 1983 has in large part been superseded by
the
Children’s Act 38 of 2005
, the relevant section of which will
come into effect on a date to be proclaimed. Section 8(3) of the
Child Care Act will then
be replaced by section 74 of the latter
Act. On publication of information relating to proceedings in a
children’s court,
the provisions of the two Acts are similar.
Section 8(3) of the Child
Care Act provides:
“
No
person shall publish in any manner whatever 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: Provided that the Minister or the commissioner
who
presides or presided at those proceedings may authorize the
publication of so much of the said information as he may deem
fit if
the publication thereof would in his opinion be just and equitable
and in the interest of any particular person.”
Section 74
of the
Children’s Act provides
:
“
No
person may, without the permission of a court, in any manner publish
any information relating to the proceedings of a children’s
court
which reveals or may reveal the name or identity of a child who is a
party or a witness in the proceedings.”
18
Section 8(3)
of Child Care Act 74 of 1983.
19
See
AD and Another v
DW and Others (Centre for Child Law as Amicus Curiae; Department of
Social Development as Intervening Party)
[2007] ZACC 27
;
2008 (3) SA 183
(CC);
2008 (4) BCLR 359
(CC);
S
v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA 232
(CC);
2007 (12) BCLR 1312
(CC);
NM
and Others v Smith and Others (Freedom of Expression Institute as
Amicus Curiae)
[2007] ZACC 6
;
2007 (5)
SA 250
(CC);
2007 (7) BCLR 751
(CC);
K
v Minister of Safety and Security
[2005] ZACC 8
;
2005 (6) SA 419
(CC);
2005 (9) BCLR 835
(CC);
J
and Another v Director General, Department of Home Affairs, and
Others
[2003] ZACC 3
;
2003 (5) SA 621
(CC);
2003 (5) BCLR 463
(CC); and
Sonderup
v Tondelli and Another
[2000] ZACC 26
;
2001 (1) SA 1171
(CC);
2001 (2) BCLR 152
(CC).