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)

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)

Section 12 of the Divorce Act 70 of 1979 is unconstitutional because it imposes an absolute prohibition on publication of information arising from divorce proceedings, regardless of whether such publication would harm privacy or children. This blanket restriction is overbroad and disproportionate, failing to balance the right to freedom of expression with the legitimate interests in privacy and dignity. The limitation cannot be justified under section 36 of the Constitution, as less restrictive means—such as prohibiting publication of identities—are available. The entire section is invalid, as the unconstitutional elements cannot be severed. The appropriate remedy is to confirm the...

Citation
[2009] ZACC 5
Parties
Applicant: Johncom Media Investments Limited; Respondent: M; Respondent: PD; Respondent: Minister for Justice and Constitutional Development; Respondent: Media Monitoring Project
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
17 March 2009
Case Number
CCT 08/08
Procedural Posture
Confirmation of Constitutional Invalidity / Application for Confirmation of High Court Order
Outcome
Section 12 of the Divorce Act 70 of 1979 is declared inconsistent with the Constitution and invalid. The High Court's order is confirmed. Publication of the identity of, or information revealing the identity of, any party or child in divorce proceedings is prohibited unless authorised by a court in exceptional...
Judges
Jafta AJ, Langa CJ, Kroon AJ, Madala J, Mokgoro J, Nkabinde J, Skweyiya J, Van der Westhuizen J, Yacoob J
Legal Topics
Freedom of Expression, Privacy and Dignity, Limitation of Rights, Open Justice, Constitutional Invalidity, Publication of Court Proceedings
Constitutional Law Family and Children Freedom of Expression Privacy and Dignity Limitation of Rights Open Justice Constitutional Invalidity Publication of Court Proceedings

Case Brief

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Parties

Johncom Media Investments Limited

Applicant

M

Respondent

PD

Respondent

Minister for Justice and Constitutional Development

Respondent

Media Monitoring Project

Respondent

Procedural Posture

Confirmation of Constitutional Invalidity / Application for Confirmation of High Court Order

Legal Issues

  1. 1 Whether section 12 of the Divorce Act 70 of 1979 is unconstitutional due to overbreadth and inconsistency with the right to freedom of expression.
  2. 2 Whether the High Court's order of constitutional invalidity is just and equitable under section 172(1)(b) of the Constitution.

Ratio Decidendi

Section 12 of the Divorce Act 70 of 1979 is unconstitutional because it imposes an absolute prohibition on publication of information arising from divorce proceedings, regardless of whether such publication would harm privacy or children. This blanket restriction is overbroad and disproportionate, failing to balance the right to freedom of expression with the legitimate interests in privacy and dignity. The limitation cannot be justified under section 36 of the Constitution, as less restrictive means—such as prohibiting publication of identities—are available. The entire section is invalid, as the unconstitutional elements cannot be severed. The appropriate remedy is to confirm the...

Court Disposition

Section 12 of the Divorce Act 70 of 1979 is declared inconsistent with the Constitution and invalid. The High Court's order is confirmed. Publication of the identity of, or information revealing the identity of, any party or child in divorce proceedings is prohibited unless authorised by a court in exceptional...

Orders

  • The order of the High Court declaring section 12 of the Divorce Act 70 of 1979 inconsistent with the Constitution and invalid is confirmed.
  • Subject to court authorisation in exceptional circumstances, publication of the identity of, or information revealing the identity of, any party or child in any divorce proceeding before any court is prohibited.