The Sunday Times was overstepping ”in every direction the bounds of propriety and decency” in publishing of the health minister’s hospital records, the Johannesburg High Court heard on Friday.
”The respondents [the Sunday Times] are not really interested in the rule of law … but in the rule of the press,” said Marumo Moerane, SC. ”What this country needs is … not, with respect to Mr Rupert Murdoch, a media-ocracy.”
Moerane asked the court to ”show its displeasure with a punitive cost order against the Sunday Times”.
”Their conduct has been high-handed in the face of very reasonable demands that the records be handed back,” he said.
Health Minister Manto Tshabalala-Msimang’s lawyers were asking for an interdict to prevent the Sunday Times from further commenting on or publishing details of the minister’s records. They also wanted references to the minister’s reported stealing in Botswana 30 years ago removed from the court record.
However, a classic justification of invading privacy is to expose hypocrisy or inconsistency, the Sunday Times‘s lawyers told the court.
John Campbell, SC, said articles published by the newspaper on August 12 and 19 indicated Tshabalala-Msimang’s patterns of alcohol consumption and her ”unruly behaviour” associated with alcohol. These were in the public interest because they debated whether the minister was fit for her position in office.
He said the articles were not only based on the minister’s medical records, but also on oral allegations. ”Those records would collaborate the oral allegations.”
He said restraint of publication dealt with the right to freedom of expression. ”Our Constitution expressly recognises the right to a free flow of information and protects that,” he told the court. This included the right to receive or impart information.
While it was argued by the minister’s counsel that her right to privacy had been limited by the Sunday Times, Campbell said the contrary could also be argued. ”Her right to privacy and confidentiality impacts on our right to freedom of expression,” he said, adding that the extent of the limitation to either of these rights needed to be weighed.
Journalists’ conscience
Earlier in the day, there was laughter when Judge Mahomed Jajbhay asked jokingly whether journalists with a conscience in fact existed, and Moerane suggested that this was an ”endangered species”.
Moerane said the important thing was that the National Health Act was clear that no information relating to someone’s health, treatment or stay in hospital be made public.
The judge said that Sunday Times editor Mondli Makhanya had not submitted an affidavit in response to how the paper obtained the minister’s medical records. The judge added: ”We don’t even know if he is in the country.”
He also asked what Tshabalala-Msimang’s lawyer thought of that, to which Moerane replied: ”He regards himself as above the law.”
Moerane said Sunday Times lawyers had not challenged the constitutionality of the National Health Act. ”What would become of this country if journalists were allowed to peddle stolen information relating to the status and stay of patients in this country?”
The judge asked whether this was not a matter of freedom of expression. Moerane replied: ”It has absolutely nothing to do with freedom of expression … the Sunday Times has malicious intent against the minister.”
The lawyer also said the Sunday Times was speaking with a ”forked tongue” on how it gained access to Tshabalala-Msimang’s records. ”They claim ignorance … but in public last Sunday they say they were given access,” he said.
Present in court were Sunday Times deputy managing editor Susan Smuts, as well as the health minister’s spokesperson Sibani Mngadi.
The hearing continues. — Sapa