The Sunday Times is to return all of Health Minister Manto Tshabalala-Msimang’s medical records with the exception of one copy, the Johannesburg High Court ordered on Friday. This copy will be held under the joint control of both parties.
In terms of the court order, the Sunday Times must refrain from reporting or commenting on any of Tshabalala-Msimang’s medical reports pending the outcome of the rest of the application.
Lawyers for Tshabalala-Msimang and the Cape Town Medi-Clinic as well as the newspaper agreed the order would be put into effect by 3pm.
On August 12, the Sunday Times published a story about the minister’s alleged drinking while at the Cape Town Medi-Clinic for a shoulder operation in 2005.
The parties met on the matter in high court Judge Winston Msimeki’s closed chambers in Johannesburg after reaching an agreement that was made an order of the court. Neither Sunday Times editor Mondli Makhanya nor the minister was in court on Friday.
Single copy
The parties agreed to keep the single copy of the minister’s medical records in a safety deposit box at a Standard Bank branch. All other copies and reproductions pertaining to Tshabalala-Msimang’s treatment, hospital stay and health status at Medi-Clinic in 2005 also have to be handed over. Records will be under joint control of both parties.
The Sunday Times has until close of business on Tuesday next week to file its answering application and the defence has until close of business on Thursday next week to file any additional papers.
In an affidavit by the newspaper’s deputy managing editor, Susan Smuts — submitted to the court on Friday — the legal team said the newspaper wanted to keep a copy of the medical records in the event of it being sued.
”There is a real prospect that one or other of the applicants will sue the respondents for damages. The first applicant has been reported in the media to be considering launching a further action for damages,” the affidavit said.
”They [the records] are relevant to, inter alia, actions based on defamation, invasion of privacy, disclosure of confidential information and any statutory defence under the National Health Act, No 61 of 2003, that may be alleged.”
Public interest
The newspaper maintained in the affidavit that the article was published in the public’s interest. Its legal team said it did not have sufficient time to respond to the minister’s application, which it received on Thursday afternoon.
”It was simply not possible to do this in the time allocated for in the notice of motion” said John Campbell, SC. The application was served on the paper’s lawyers, Bell, Dewar and Hall Incorporated, at 2.37pm on Thursday with the answering affidavit called for by 6pm.
The notice of motion filed on Thursday called on four respondents — Makhanya, journalists Jocelyn Maker and Megan Power, and Johnnic Publications, which owns the newspaper — to deliver various documents to the applicant’s lawyers by close of business.
In her accompanying affidavit, the minister called the conduct of the respondents ”not only … unlawful” but ”high-handed as well”. ”Such conduct calls for censure in the strongest terms possible.”
She said various terms of the National Health Act had been violated. These included the obligation of a clinic to keep records of all patients, the right of a patient to have medical information kept confidential, and the obligation of health workers not to disclose medical information unless for legitimate purposes.
”I have a clear right to my privacy and dignity and to protect those rights,” the minister said.
The minister is an applicant in her personal capacity and not as a member of the Cabinet. — Sapa