Cape Town man ordered to remove all pornographic material which his wife is part of from digital devices

2018-08-11 12:22
Western Cape High Court. (File)

Western Cape High Court. (File)

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A Cape Town man who allegedly sought to threaten his estranged wife into acceding to his demands during their divorce has been ordered to permanently remove any pornographic material which she was part of from all his digital devices.

He also had to destroy a suitcase of explicit material he had sent her a photo of, claiming it held a "big secret", which he said he would release if she did not reconsider her counterclaim in divorce proceedings.

Western Cape High Court Acting Judge Bruce Langa made final a draft order on Friday that was presented to him as part of an urgent application brought by the wife.

Advocate Brian Pincus SC, representing the wife, had asked the court to protect his client's rights to privacy, dignity and integrity.

So-called "revenge porn" has been in the spotlight in Parliament after its communications committee heard submissions calling for harsher punishment for people who distribute harmful media without consent, as envisaged in the films and publications amendment bill.

The bill which was passed by the National Assembly in March, is now being considered by the National Council of Provinces. 

The couple, who cannot be named to protect the identity of their children, had made sex videos in their home during the course of their marriage. The man had taken nude photographs of his wife and she had also sent him nudes from time to time.

His wife, an estate agent, revealed in her founding affidavit that their marriage had "broken down irretrievably and there was no reasonable prospect of the restoration of the normal marital relationship between us".

She said her husband instituted divorce proceedings against her in February this year.

'Revenge porn'

According to her affidavit, it emerged that month that he had accessed and cloned her WhatsApp conversations for some time.

She then changed her mobile sim card and bought a new laptop in order to prevent her husband from her WhatsApp conversations.

The wife revealed that on April 6, she served and filed a Claim in Reconvention in the divorce proceedings.

"In this pleading I stated that the respondent had a fascination for pornographic material and that his fascination was one of the reasons for the breakdown of the marriage."

On April 10, her husband responded to her via WhatsApp threatening to reveal his "favourites" if she did not accede to his demands and change her pleading in the divorce matter.

"I took this threat to disseminate this material to various persons. He then proceeded to send me a variety of explicit photographs and videos in which I featured.

"I deal hereafter with how these videos were made between the two of us, but what he has done since we separated is to animate the video and add background music. I was horrified when I saw what he had done with these videos and can only imagine it was done with a view to disseminate them," she said.

He further threatened that he had a small suitcase which contained more of the same kind of material, she added.

In an email sent from the man to his wife earlier this month, he said he would have to defend himself and had photographic evidence that would be "very embarrassing" for her. 

"I refuse to delete anything until the divorce is settled because it is my right to defend myself, and that is part of my evidence I sent to you," he said, recommending they abandon their claims and cite only irreconcilable differences when filing.

"It was never my plan to show any of our private material that we made together... I have not yet, and I will not. I just keep it as evidence until you change your plea or settle."

Destroying the evidence

Pincus argued that the husband's continued possession of the "explicit material" was a continued threat to his client's constitutional rights.

"The applicant lives each day not knowing where the materials are stored, whether the respondent is looking at them or whether he is showing them to others. She also doesn't know when next he will use them as blackmail against her," said Pincus.

Pincus dismissed the husband's claims that he required the materials for "evidence".

"It is common cause between the parties that the applicant consented to the recordings and photographs being taken. There is no need for the respondent to produce evidence of admitted facts," he said.

"Women – such as the applicant – should be protected and should never have to deal with such uncertainty."

He argued that the explicit material held by the husband was intended to be private and enjoyed by the couple while the relationship lasted.

The man was ordered to remove any material showing him having sex with his wife or any nude material including her pictures, videos, audio or other recordings.

He was also directed to delete any WhatsApp messages or conversations to which his wife was part of.

The court ordered that he must disclose in an affidavit the names and addresses of any people he had shared any of the explicit material and WhatsApp conversations with.

He was also directed to furnish the court and his wife's attorneys with a further affidavit, within 72 hours of the order, confirming that all explicit material and WhatsApp exchanges on all digital devices under his control have been permanently removed.

In addition, he was directed to destroy the contents of the suitcase within 48 hours of the order being granted and to file an affidavit within 72 hours of the order that the destruction had taken place.

The court ordered the man to pay costs on a punitive scale to mark its disapproval of his conduct, as he was asked in a letter to destroy the material and refused.

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