On 17 March 2009 the Constitutional Court in Johncom Media Investments Limited v Mandel and Others ruled that the outright ban on reporting divorce proceedings was overly broad. However,the court simultaneously banned the media from revealing the names of the parties involved, with the goal of protecting their privacy, and especially that of minor children.

The parties concerned are now protected from the ‘undeniable prejudice’ that would result were the details of their private lives to be bared to the world. The court found that clearly parties could be identified only by court order in ‘’exceptional circumstances”.’  

This followed an application by the owners of the Sunday Times that section 12 of the Divorce Act was overly broad in its ban on reporting of information coming out of divorce proceedings. The newspaper had met resistance during attempts to publish a story on a man who was suing his former wife for damages – when he found out that a son they had during their marriage was not his biological child. The court said details of divorces could be published, but a child’s identity had to be protected, unless there were exceptional circumstances. ‘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 proceedings before any court is prohibited,’ the unanimous judgment said.

The judgment is only a ‘lukewarm triumph for press freedom’, retired academic Marinus Wiechers says. He is quoted in a Beeld report as saying that the judges’ qualification of the order declaring Article 12 of the Divorce Act unconstitutional may leave the media in a worse position as no names may be published. ‘The Constitutional Court has now made censor boards of all courts.Censorship of the names of the parties is now in the trial court’s hands. This will certainly cause trouble later on.’ The Constitutional Court gave to the media with one hand and took away with the other, is how Dario Milo, media law spec ialist at Webber Wentzel Bowens, described the judgment in a Business Day report. ‘While the court has struck down a provision of the Divorce Actthat prevented the media from publishing any particulars of a divorce action, or any information that emerges in the course of such an action, it also ordered that no party or child involved in divorce cases may be identified,’ he is quoted as saying.