For nearly five years, a woman has been living in fear that her former husband would post a video on social media of her having sex with another woman in the couple’s then-matrimonial home.
While the husband has denied showing anyone the recording, the woman, who has remarried, was told by others how he had shown portions of the recording to some of his friends and even to one of his girlfriends.
The husband said he had shown only “a thumbnail” of it to his girlfriend.
The man told the high court sitting in Durban that he had only “about three minutes” of the recording on his phone.
But his former wife, the applicant, said he had a recording of between 40 to 60 minutes of her encounter with the other woman.
Judge Robin Mossop frowned on the husband’s explanations and found them untrue.
While he admitted to having a snippet of the footage, the husband said: “When I had the opportunity of looking at the video footage, I thought I might see something which might assist me in my case insofar as it dealt with the care and custody of our son.”
The judge said: “That may have been the original motivation for making the video. Indeed, it probably was. But once a settlement acceptable to the respondent (the husband) had been achieved, that did not mean that the video lost meaning or its reason to exist. It was now a trophy that he could show to his friends and a tool that he could still employ to control the applicant in the future.”
The husband obtained the footage in June 2019. His former wife, for the first time since then, obtained peace of mind when the court interdicted him from ever revealing the footage or still pictures of it to anyone.
“The respondent’s conduct is worthy only of censure. His conduct in delaying the handing over of his handset (to be analysed) and then prohibiting a full and thorough investigation of whether the video continues to exist casts grave doubt on his assertions that the video does not exist,” the judge said.
Judge Mossop added that his conduct towards the applicant had been designed to embarrass and humiliate her.
He said the consequences for the applicant could be catastrophic if he attempted to do the same in the future.
The judge noted that Colombian novelist Gabriel Garcia Martinez once observed that all human beings had three lives: public, private and secret. The matter involved a secret part of the applicant’s life that she wished to keep that way.
Before they divorced, the couple separated and the applicant remained in the matrimonial home while the respondent moved to alternative accommodation. Before their separation, they had installed a network of CCTV cameras inside and outside the matrimonial home, with the exception of the master bedroom and the bathrooms.
The cameras operated continuously and were linked to a hard drive that recorded the footage fed to it and the footage could be viewed on a television screen in the master bedroom.
The wife’s anguish followed an incident when after their break-up, her husband went to the house in her absence and came across the footage.
He used the camera on his phone to film the encounter displayed on the television set. He then told her about it but said he had recorded only a fraction of the sexual encounter on his phone and had not shown it to anyone.
A year later, while out with her friends, a male friend told her he had seen the footage. The applicant said she had been “mortified” to hear that.
When she had confronted her husband, he had responded: “I got rid of that thing because it disgusted me.”
She had believed him and had continued with her life, remarried and had another child.
However, in April last year, she met a friend while they were taking their children to swimming lessons. Her friend had told her that she knew of others who had seen the footage. One of the women who saw it had confirmed she that she had seen “a portion” of it.
To make matters worse, the applicant was told that in January last year, her ex-husband had shown the video to his male friends during a social gathering.
The applicant then turned to court but the matter was postponed indefinitely so that the husband could file affidavits. He, however, undertook to submit his phone for a forensic audit to collaborate his version that the images were no longer on his phone. He also undertook not to publish it, although he denied he still had it.
Later, he handed an unconfirmed version of his expert’s opinion, which said the images had been removed.
The wife obtained a full forensic report in which it was stated that while there were no more images on the phone, it was probably being stored in the cloud – to be used at any time.
The judge said the respondent had behaved in a disgraceful manner towards the mother of his child and as he could use the images at any time. He must, for once and all, be interdicted from doing so.