The Sunday Times legal team plans to counter legal action by the health minister on the grounds that her right to privacy is overridden by the public’s right to know whether she is competent to exercise her duties.
Stories in the Sunday Times earlier this month contained a number of explosive allegations about Manto Tshabalala-Msimang, many based on copies of her medical records from time spent in the Cape Town Medi-Clinic.
The allegations include that the minister had alcoholic liver disease, that she continued to drink alcohol before and after receiving a liver transplant at the beginning of this year and that it was questionable whether she should have received the donated organ.
At the core of the newspaper’s defence is debate over whether she is fit to hold office in the Cabinet. In court papers filed this week, Sunday Times deputy managing editor Susan Smuts says: ”I respectfully submit that so germane are the allegations of alcohol abuse to the first applicant’s fitness for office, that they are not confidential.
”The extent to which alcohol abuse may have affected the first applicant’s judgement and her behaviour are matters of public interest, not least because, again as set out more fully below, they suggest a breach by the first applicant of some of her duties under the Constitution and her oath of office.”
The minister’s lawyers have issued a wide-ranging set of demands, including that the court block the Sunday Times from writing any more stories based on Tshabalala-Msimang’s health records, that it erase all references to the medical records from its notebooks and computers and that copies of the records be destroyed.
In terms of a previous agreement, a single copy of Tshabalala-Msimang’s medical records has been retained in a bank safe under the joint control of the parties.
The minister did not demand a retraction in her court papers, although her spokesperson previously indicated that she would do so. However, she has threatened to sue for damages.
In her affidavit, Tshabalala-Msimang says the newspaper’s access to her medical records ”is an unlawful and unconstitutional invasion of my right to privacy and dignity”. She has asked for a punitive costs order against the Sunday Times, its journalists and the holding company.
The newspaper says alleged alcohol abuse is not the only factor in the debate about whether Tshabalala-Msimang is fit to be in Cabinet and details in its papers many of the other issues that relate to the health minister, including her controversial views on HIV/Aids and the recent firing of deputy minister of health Nozizwe Madlala-Routledge.
Smuts says there is no precedent to allow the deletion of information from reporters’ notebooks or computers and that in any case those records will be needed if Tshabalala-Msimang sues for damages, as she has threatened to do.
The minister’s medical records have, according to Medi-Clinic Holdings, been unlawfully removed from its archives. The company has laid a charge of theft with the police and has joined the minister in her legal case.