Win some, lose some in Sunday Times judgement

The Johannesburg High Court has ordered the Sunday Times to return Health Minister Manto Tshabalala-Msimang’s medical records and copies thereof to the Cape Town Medi-Clinic.

However, Judge Mahomed Jaj-bhay ruled on Thursday that personal notes of Sunday Times journalists are not affected by his order and the newspaper can continue to comment on the matter.

The Sunday Times must pay Tshabalala-Msimang’s legal fees.

Tshabalala-Msimang is in the Republic of Congo, but said through her spokesperson, Sibani Mngadi, that she was ‘delighted”.

In a statement on Thursday Mngadi said the minister and all people using health facilities could do so knowing that their rights were looked after. ‘I hope [Sunday Times editor] Mondli Makhanya is swallowing his words. At first he said he was 200% correct and now after the court has ruled … he must even pay the costs of the legal process.”

Makhanya wasn’t available for comment.

Jajbhay’s judgement came after the publication three weeks ago by the Sunday Times of details of the minister’s stay at the Cape Town Medi-Clinic for a shoulder operation in 2005. The newspaper’s allegation that red wine and whisky were ‘smuggled” into her hospital room before and after she underwent surgery were based on medical records that were obtained unlawfully.

Jajbhay criticised the Sunday Times for not affording Tshabalala-Msimang an opportunity to respond to the contents of her medical records prior to publication of the story.

‘It is not clear if any of the respondents [the Sunday Times and its journalists] in the present matter took the necessary steps to investigate the illegal status of the medical records that they were armed with. There is an ethical obligation on journalists in matters such as the present to ascertain whether the document that they are armed with has in fact been legally obtained,” Jajbhay said.

Referring to the issue of public interest, Jajbhay said he could not make a ‘specific” finding that the Sunday Times should have published the allegations. ‘The harm caused to the first applicant [Tshabalala-Msimang] and her family, as well as those close to her, must have been vast and painful. Newspapers, no less than other players in our society, must keep in mind the consequences of their activities.”

Freedom of Expression Institute’s Jane Duncan criticised Jajbhay’s judgement.

‘In the judgement judge Jajbhay has attempted to strike the balance between freedom of expression and the right to privacy and, in the process, has attempted to make concessions to both rights. However, we do not think that the concessions made to freedom of expression go far enough.

‘Tshabalala-Msimang could have had no reasonable expectation of privacy in relation to information that she claimed to be confidential. Her medical records demonstrate behaviour that is inconsistent with her role as minister of health.

‘This means that her right to privacy in respect of these aspects of her medical records must give way to the right of the Sunday Times to disclose this information. The judgement does not seem to take this argument into account. In fact, this aspect of the ruling is censorious.”