IN THE HIGH COURT OF SOUTH AFRICA (WITWATERSRAND LOCAL DIVISION)
JOHANNESBURG	CASE NO: 2007/06719

10     In the matter between:

MANDEL, CLAIRE LIZA 						First Applicant 
DIFFORD, PAUL							Second Applicant

and

JOHNCOM MEDIA LIMITED
("the main application")						Respondent

AND

In the matter between:
JOHNCOM MEDIA LIMITED						Applicant
20     and
MANDEL, CLAIRE LIZA						  First Respondent
DIFFORD, PAUL	Second Respondent
THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
("the counter-application")						   Third Respondent

JUDGMENT
CASSIM, AJ: 
Introduction
1.	On Saturday some time after 19h00, 28 April 2007, Berman, AJ granted an urgent interim order against Johncom Media Investments Limited ("Johncom Media"), the publisher of the Sunday Times, restraining this newspaper from publishing matter arising from proceedings instituted by Ian Newcome Difford for damages allegedly suffered as a consequence of Claire Liza Difford, his former spouse, fraudulently misrepresenting that he, Ian, was the father of Paul Difford.
2.	This order provides as follows:

"1 The Respondent is interdicted from publishing information as provided for in sections 12(1) and 12(3) of the Divorce Act, 70 of 1979 pertaining to:
1.1	the proceedings under case No: WLD 2001/23906 between Ian Newcome Difford and Claire Liza Mendell; and
1.2	the proceedings in this matter.

2 The order granted in paragraph 1 is an interim interdict pending the final determination of an application between the Applicants and the Respondent for substantially the same relief as

that set out in paragraph 2 of the notice of motion dated 28 April 2007, which application must be instituted within 14 days of this order.
3 The costs of this application are reserved for determination in the application referred to in paragraph 2 above."
The Applicants, in the urgent application before Berman, AJ, were Claire Liza Mandel and Paul Difford.
Case No: 2001/23609 concern, as alluded to above, an allegation by Ian Difford that Claire Liza Mandel, who he divorced in February 1995, made a false misrepresentation to him concerning the paternity of Paul Difford at all times throughout the lifetime of Paul Difford from his birth on 22 December 1976 until February 2001, and claims damages.
On 31 January 2008, sitting in the ordinary motion roll, I was confronted with this matter. The Applicants in the matter before Berman, AJ were not seeking the confirmation of the interim order granted by Berman, AJ on 28 April 2007. Berman, AJ had not furnished any reasons for the order which he granted, Johncom Media opposed the confirmation of the interim order granted by the court on 28 April 2007 and, by way of a counter-application, sought an order declaring section 12 of the Divorce Act, 70 of 1979 ('the Divorce Act") to be inconsistent with the

Constitution of the Republic of South Africa, 1996 ("the Constitution") and invalid.
6.	The Applicants, in the urgent application before Berman, AJ, did
not oppose the counter-application. The Minister of Justice and
Constitutional Development ("the Minister") did not oppose the
relief sought by Johncom Media in its constitutional challenge of
section 12 of the Divorce Act. The Minister sought an
opportunity to pass legislation to deal with section 12 of the
Divorce Act, in terms whereof the Minister indicated the court will
10	be vested with a discretion, upon application, to grant leave to
publish particulars of a divorce action. The Minister did not, however, indicate any time frame when this is to be achieved.

7.	Section 12 of the Divorce Act provides as follows:
	"1 Except for making known or publishing the names of the parties to a divorce action, or that 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 information of
20	the public or any section of the public any
particular of a divorce action or any information which comes to light in the course of such an action.
2 The provisions of sub-section 1 shall not apply with reference to the publication of particular or information:
(a)	For the purpose of the administration of
justice.
(b)	In a bona fide law report which does not
30	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,
3	The provisions of sub-section 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 the
10	Family Advocate in terms of the mediation in
certain Divorce Matters Act 1987.

4	Any person who in contravention of this section published any particulars or information shall be guilty of an offence and liable on conviction to a fine not exceeding R1 000 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment."
8.       I agree that section 12 of the Divorce Act offends the right to freedom of expression  as formulated in section  16 of the
20	Constitution. Freedom of expression as the Constitutional Court
has emphasised lies at the heart of a democracy. Free and open exchange of ideas carries its own inherent worth and is a necessary conduit for the proper functioning of a participatory society and assist in ensuring accountability and responsiveness. The Minister has not sought to justify the existence or retention of section 12 of the Divorce Act. The Minister has not discharged the onus of establishing that the retention of section 12 is justified in terms of section 36(1) of the Constitution. The only reservation expressed by the Minister is
30	that if given the opportunity a carefully considered Bill can be
presented to Parliament in which amendments can be debated which wilt have the effect that section 12 will be amended to provide for a court to have a discretion under which circumstances publication of matters affecting a divorce may be published.
9.	In taking the view that I have adopted in this judgment, I am
influenced by the general rule that the courts are open to the
public. Section 12 of the Divorce Act, on the other hand, has an
absolute prohibition. The prohibition, moreover, is unlimited as
to time. Section 12 prohibits publication of all information which
10	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.
10.	in August 2002, the South African Law Commission ('the
Commission") published its report, known as Project 114 on the
publication of divorce proceedings and recommended that
section 12 of the Divorce Act be amended to allow a court the
discretion to:

20	"Make an order to lift the general ban on publication and
to grant leave to any party to publish such particulars of a divorce or such information or evidence which has come to light in the course of such an action, as the court may deem fit; and close the court at any stage of proceedings where there is a likelihood that harm may result to a child."
11.	I point out that the South African Law Commission commenced
its investigation as early as 23 January 1998. Thus, the
Commission investigated the matter for a period of in excess of 4
years. The Ministry of Justice and Constitutional Affairs had the
report from August 2002 and to date, being a period in excess of
5 years, has not given effect to the recommendation of the
Commission. Inaction on the part of a decision maker is
tantamount to indifference. This long delay prompted me to bring
finality to these proceedings as a trigger to prompt responsible
10	action on the part of the Ministry; hence my resolve to deal with
this matter on an ex tempore basis.
12.	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
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
20	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.
13.	I am indebted to Mr Freund SC and Mr Cockerell, who appeared
on behalf of Johncom Media, for the comprehensive written
submissions with reference to foreign jurisdictions, which has
been a great assistance to me in reaching the decision at which I
have arrived.
14.	I am therefore not inclined to grant the request of the Minister.
10	Insofar as the costs of this application are concerned, I am of the
view that each party pays its own costs. Johncom Media pursues the matter to enhance the rights of the citizens of this country, but it also does so to protect its own commercial interest. The Minister has not opposed the application, but seeks to regulate the matter holisticaliy. The Minister may still do so before this matter reaches the Constitutional Court.

The urgent interim order of 28 April 2007

15.	I am mindful of the fact that i do not have reasons of the Learned
Judge who granted this order.   I am, however, of the view that
20	courts of law must be more vigilant in examining the term "prima
farcie rights" traditionally used in relation to temporary interdicts, and more emphasis must be placed on balance of convenience and prejudice.    More is required than merely to look at the allegations of the applicant, in particular having regard to the newly founded rights enshrined in our Constitution.
16.	Thus for instance, in this case, the Learned Judge ought to have
weighed up the rights to privacy as compared to the public's
interest in what was regarded as the first paternity fraud suit in
our country. Access to the hearing of the matter is not prohibited,
nor is any outsider prevented from perusing if not studying the
pleadings. Section 12 seeks to interdict publication. On a proper
consideration of the pleadings, the Learned Judge in interpreting
10	section 12 purposively (and having regard to the right to freedom
of expression) ought to have found that only one of the relief sought for by Difford concerned the decree of divorce, namely that seeking to amend the consent order that was granted by the court on the occasion of the divorce.
17.	The remaining of the action concerned an order that Paul Difford
is not the Plaintiff's son, and whether the Plaintiff is entitled to
damages in excess of R1 million occasioned on Plaintiff's version
by the Defendant deliberately holding out that Paul was his son
and thereby procuring maintenance payments, when, to her
20	knowledge so it is alleged she knew this to be untrue.

18.	In my view, the Learned Judge could have interpreted section 12
of the Divorce Act restrictively. And if greater emphasis was
placed on prejudice and balance of convenience (the newspaper
having already been published) and the right of the public to
information, the order which he granted could have been much more restrictive. In any event the breath and scope of the interim order is too broad and general. In content, its wording is vague and prohibitive. It should not be allowed to survive, particularly when those in whose favour it was granted no longer rely on it.

19.     In the result, I make the following orders:
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.

CASSIM AJ

High Court, Johannesburg 
11 February 2008