/ 25 August 2007

Judgement reserved in Manto hearing

The Johannesburg High Court on Friday reserved judgement in the dispute between Health Minister Manto Tshabalala-Msimang and the <i>Sunday Times</i> over her confidential hospital records. Judge Mahomed Jajbhay said he would make his decision in seven days. ''I will reflect most of the weekend on the matter,'' he told both parties.

The Johannesburg High Court on Friday reserved judgement in the dispute between Health Minister Manto Tshabalala-Msimang and the Sunday Times over her confidential hospital records.

Judge Mahomed Jajbhay said he would make his decision in seven days.

”I will reflect most of the weekend on the matter. I have been enriched [by the arguments],” he told both parties.

Lawyers for Tshabalala-Msimang are seeking to interdict the newspaper from further comment on or publishing of records relating to the minister’s stay in a Cape Town hospital in 2005.

They also want to have any ”scandalous” and ”vexatious” references to her behaviour in hospital and allegations of theft in Botswana 30 years ago removed from the court’s record.

Lastly, the minister’s attorneys were seeking ”oversight” concerning the removal of the material from the Sunday Times.

On Thursday, the minister’s lawyers filed additional papers stating that the Sunday Times deputy managing editor’s affidavit contained substantial ”irrelevant” material.

”As this material is scandalous, vexatious and inadmissible hearsay, and its inclusion is frivolous, it should be struck out of the record,” said the minister in her affidavit.

The information included allegations that the minister was found guilty of theft in Botswana 1976 and details of the recent dismissal of former deputy health minister Nozizwe Madlala-Routledge.

Lawyers for the minister argued in their affidavit that the Sunday Times had contravened the National Health Act.

Advocate Marumo Moerane further submitted that the newspaper published the information as ”part of a vendetta against the minister and efforts to destroy her”.

Said Moerane: ”The respondent acted unlawfully and continues to do so … the venomous and vitriolic attack that the Sunday Times has mounted gratuitously against the minister deserves a punitive cost order.”

He said the newspaper ”added insult to injury” by publishing ”irrelevant defamatory allegations” before the court and on its website.

Moerane said the newspaper had no public-interest defence to stand on.

Sunday Times advocate John Campbell, he said, was seeking to give his own definition of confidentiality as defined in the National Health Act.

Moerane quoted from Section 14 of the Act, according to which: ”All information concerning a user [patient] … is confidential.”

The only way to bypass this was if the user consented, if there was a court order or the law required disclosure, or if non-disclosure represented a ”serious threat” to public health.

Manto Tshabalala-Msimang, he said, was bringing the application not in her capacity as health minister, but as a private person, and would bear her own costs.

‘Unruly behaviour’

Judge Jajbhay was in a jocose mood despite the fact that proceedings dragged on past 5pm. In greeting Moerane, who had travelled to Johannesburg from KwaZulu-Natal, and Campbell, who had ventured out of Sandton, he said ”welcome to our shores”.

Addressing Campbell on a matter relating to power of attorney, which Campbell took seriously, he said: ”I’m only joking squire, it’s late in the afternoon and it’s hot in this courtroom.”

In their defence, Sunday Times lawyers argued that a classic justification of invading privacy was to expose hypocrisy or inconsistency.

Campbell said both 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. They were also at odds with her public stance on alcohol abuse and its effects.

”This raises the question of the first applicant’s [Tshabalala-Msimang] consistency and whether she is a suitable vehicle for such a message … [she] must both live her life consistently with the message, and be seen to do so,” said Campbell.

He said the articles were not only based on the minister’s medical records, but also on oral allegations.

”Those records would corroborate the oral allegations.”

He said restraint of publication would limit 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.

Right to privacy

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 the extent of the limitation to either of these rights needed to be weighed against the purpose, importance, and effect of the intrusion.

He said if the court found that the paper had not acted in the public interest then the minister had the right to interdict it.

”If the public-interest defence is a poor one, then the first applicant had the right to interdict [the newspaper from continuing to publish or gain access to any additional confidential documents of the minister].”

Campbell said the paper did not deny that it had gained unauthorised access to the medical records, but said the legal team had not been asked by the minister’s counsel to explain how they had come into possession of it.

”We were not called upon to meet any cases as to how we got the documents.

”We were also never accused of stealing the originals,” he said.

The Sunday Times published in two articles that the minister’s alleged drinking of alcohol made her unfit for office.

This allegedly included abusing alcohol in a hospital ward at the time she was admitted for shoulder surgery in 2005.

Allegations were also made that the minister behaved in an ”unruly manner” and had abused her status by making unusual and unfair demands on the staff — she is alleged to have ordered a staff member to get her food from Woolworths and to bring her wine.

The affidavit further defended an editorial published on August 19, which alleged that the minister had alcoholic liver disease that had been caused by years of excessive drinking. This before her liver transplant earlier this year.

The newspaper claimed the minister had not stopped drinking alcohol before the transplant and had continued to drink after it.

”She therefore ought not to have been given a transplant.”

The Sunday Times said it had gleaned this information from Tshabalala-Msimang’s medical records and from reliable sources.

It therefore maintained that the allegations of alcohol abuse were ”so germane” that they were not confidential.

The newspaper’s legal team said the paper 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,” an earlier affidavit said. — Sapa