Arguments by the Sunday Times and Health Minister Manto Tshabalala-Msimang on the return of the health minister’s medical records were expected in the Johannesburg High Court on Friday.
The Sunday Times filed court papers on Tuesday and the Department of Health confirmed that a reply to the newspaper’s defence had been filed on Thursday.
Both legal teams were confident that argument would be heard on Friday.
The furore over the minister’s medical records arose after the Sunday Times published a story on August 12 alleging that Tshabalala-Msimang had abused alcohol, including drinking in a hospital ward.
The following Sunday, the newspaper published an editorial alleging that the minister had failed to stop drinking six months before her liver transplant and had continued to drink after the transplant. She therefore did not qualify for the transplant.
The Sunday Times said this raised questions of an abuse of power, favouritism or preferential treatment that enabled her to receive a rare organ ahead of other deserving recipients.
It also revealed that the minister had been found guilty of theft while in exile in Botswana in 1976.
The minister wants a court order compelling the newspaper to return all copies of her 2005 medical records, and to silence any further comment or publication about these records, which are usually confidential.
The minister claims that the reports were stolen from Cape Town Medi-Clinic.
In the newspaper’s answering affidavit, deputy managing-editor Susan Smuts said the records were never stolen. She repeated that publication of the article was in the public interest, as it was part of the debate over whether Tshabalala-Msimang was fit for office.
She said the allegations were relevant for ”at least” three reasons.
Firstly, the minister had over the last five years consistently warned of the dangers of alcohol. This raised the question whether she was the suitable vehicle for this message.
”The first applicant [Tshabalala-Msimang] must both live her life consistently with the message, and be seen to do so.
”Anything less would both suggest hypocrisy and seriously undermine the message and the Department of Health’s campaign,” Smuts said.
Secondly, Smuts said the extent to which alcohol abuse may have affected the minister’s judgement was also of public interest.
Thirdly, there was her ”undisciplined and arguably inappropriate” behaviour in consuming alcohol in hospital shortly before and after surgery. This while taking sleeping and pain-killing drugs.
Smuts said the newspaper would not return its copy of the medical records — now held jointly by both parties in a safety deposit box — as it maintained that the allegations of alcohol abuse were ”so germane” that they were not confidential.
In addition to the return of her medical records, the minister also wants any references to her hospitalisation and medical status to be deleted from reporters’ notebooks and laptop computers.
She is also applying to interdict the newspaper from gaining unauthorised access to any of her other confidential records.
On Thursday, the Cabinet strongly criticised the ”distasteful” media coverage around Tshabalala-Msimang.
Government spokesperson Themba Maseko said the Cabinet took a dim view of the distasteful coverage of the minister, particularly the unlawful publication and theft of her medical records from the hospital.
”While Cabinet fully endorses free speech as articulated in our Constitution, there is a need to maintain a balance that respects and protects all rights, including the right to privacy and free speech,” he said.
”These rights must be respected and observed by all, including the media.” — Sapa