THE Media Monitoring Project (MMP) says it agrees with the Sunday Times that a section of the Divorce Act limits freedom of expression and is unconstitutional, but says the aim of protecting the privacy of children of divorcing parents is also important.

This is because of the right enshrined in section 28(2) of the constitution, which states that the best interests of the child are paramount in all matters concerning the child.

 
The organisation has applied to be admitted as a friend of the court in the Sunday Times' application to the Constitutional Court for an order declaring that section 12 violates the constitution.

Sections 12(1) and 12(3) of the act restrain any publication of any particulars of a divorce action that comes to light during the course of such an action.

The Johannesburg High Court in February ruled that the sections were unconstitutional as they prevented the Sunday Times from reporting on a paternity fraud case that came to light in the course of the divorce proceedings.

Acting Judge Nazeer Cassim said s ection 12 prohibited the publication of all information, even if such information did not require protection.

The organisation said that in 2003 it had investigated the representation of children and their rights in SA's news media and found that children's rights were underrepresented .

It said that when children featured in the news, they were most often represented as victims and their rights to privacy and dignity were often violated.

MMP director William Bird said that if the organisation was admitted as a friend of the court, it would argue that section 12 of the Divorce Act 70 was disproportionate, and that the extent of the limitation rendered it unconstitutional.

Bird said if the court found that the section was unconstitutional, the MMP would argue that the order of invalidity should be suspended to allow the legislature time to develop a more nuanced and less restrictive response, which would protect the privacy and dignity of children while upholding freedom of expression.

Justice Minister Brigitte Mabandla has also asked for the court to give Parliament 18 months to remedy the section if it is unconstitutional.

Sunday Times and Mabandla have consented to the MMP entering as friends of the court. Should the court agree, the organisation would be able to file written submissions by Friday.