Mandel and Another v Johncom Media Limited; Johncom Media Limited v Mandel and Others (2007/06719) [2008] ZAGPHC 36 (11 February 2008)

Mandel and Another v Johncom Media Limited; Johncom Media Limited v Mandel and Others (2007/06719) [2008] ZAGPHC 36 (11 February 2008)

Section 12 of the Divorce Act, 70 of 1979, imposes an absolute and unlimited prohibition on the publication of information arising from divorce proceedings, except for limited exceptions. This prohibition unjustifiably limits the right to freedom of expression as protected by section 16 of the Constitution. The Minister of Justice did not discharge the burden of justifying the retention of section 12 under section 36(1) of the Constitution. The South African Law Commission recommended amending section 12 to allow judicial discretion, but no legislative action has been taken for over five years. The court finds that the blanket prohibition is unconstitutional and invalid. The court retains...

Citation
[2008] ZAGPHC 36
Parties
Applicant: Claire Liza Mandel; Applicant: Paul Difford; Respondent: Johncom Media Limited; Applicant: Johncom Media Limited; Respondent: Claire Liza Mandel; Respondent: Paul Difford; Respondent: Minister of Justice and Constitutional Development
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
11 February 2008
Case Number
2007/06719
Procedural Posture
Constitutional Application / Final Judgment and Referral for Confirmation
Outcome
Section 12 of the Divorce Act is declared inconsistent with the Constitution and invalid. The order of constitutional invalidity is referred to the Constitutional Court for confirmation. Each party is to pay its own costs.
Judges
Cassim
Legal Topics
Freedom of Expression, Divorce Act Section 12, Constitutional Invalidity, Children Rights, Privacy Vs Public Interest
Constitutional Law Family and Children Freedom of Expression Divorce Act Section 12 Constitutional Invalidity Children Rights Privacy Vs Public Interest

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Parties

Claire Liza Mandel

Applicant

Paul Difford

Applicant

Johncom Media Limited

Respondent

Johncom Media Limited

Applicant

Claire Liza Mandel

Respondent

Paul Difford

Respondent

Minister of Justice and Constitutional Development

Respondent

Procedural Posture

Constitutional Application / Final Judgment and Referral for Confirmation

Legal Issues

  1. 1 Whether section 12 of the Divorce Act, 70 of 1979, is inconsistent with the Constitution and invalid.
  2. 2 Whether the prohibition on publication of divorce proceedings unjustifiably limits freedom of expression.
  3. 3 Whether the court should confirm or restrict the interim interdict previously granted.

Ratio Decidendi

Section 12 of the Divorce Act, 70 of 1979, imposes an absolute and unlimited prohibition on the publication of information arising from divorce proceedings, except for limited exceptions. This prohibition unjustifiably limits the right to freedom of expression as protected by section 16 of the Constitution. The Minister of Justice did not discharge the burden of justifying the retention of section 12 under section 36(1) of the Constitution. The South African Law Commission recommended amending section 12 to allow judicial discretion, but no legislative action has been taken for over five years. The court finds that the blanket prohibition is unconstitutional and invalid. The court retains...

Court Disposition

Section 12 of the Divorce Act is declared inconsistent with the Constitution and invalid. The order of constitutional invalidity is referred to the Constitutional Court for confirmation. Each party is to pay its own costs.

Orders

  • Section 12 of the Divorce Act, 70 of 1979, is declared inconsistent with the Constitution and invalid.
  • The order of constitutional invalidity is referred to the Constitutional Court for confirmation in terms of section 167(5) of the Constitution.