Tshabalala-Msimang and Another v Makhanya and Others

• Jurisdiction: South Africa
• Judge: Jajbhay J
• Judgment Date: 30 August 2007
• Citation: 2008 (6) SA 102 (W)
• Docket Number: 18656/07
• Hearing Date: 24 August 2007
• Counsel: MTK Moerane SC (with P Coppin SC and B Vally) for the applicants. JWG Campbell SC (with QR Mashabane) for the respondents.
• Court: Witwatersrand Local Division

Jajbhay J: I

Introduction

[1] 'The time will come when our nation will honour the memory of all J the sons, the daughters, the mothers, the fathers, the youth and the

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children who, by their thoughts and deeds, gave us the right to assert A with pride that we are South Africans, that we are Africans and that we are citizens of the world.' [1] History has bestowed on our generation in our beloved country the gift of a rare opportunity to manage the birth of our freedom as a nation and to nurture it towards its maturity. This in turn obliges all of us as citizens of this country to speak and act in very special B ways. Section 1 of the Constitution [2] informs us that 'the Republic of South Africa is one, sovereign, democratic State founded on the following values: (a) human dignity, the achievement of equality and the advancement of human rights and freedoms'. This means that there are in existence dominant values as well as an ethos that binds us as communities to ensure social cohesion. In South Africa we have a value C system based on the culture of ubuntu.

[2] This in effect is the capacity to express compassion, justice, reciprocity, dignity, harmony and humanity in the interests of building, maintaining and strengthening the community. Ubuntu speaks to our inter-connectedness, our common humanity and the responsibility to each D that flows from our connection. Ubuntu is a culture which places some emphasis on the commonality and on the interdependence of the members of the community. It recognises a person's status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community that such a person may be part of. E In South Africa ubuntu must become a notion with particular resonance in the building of our constitutional democracy:

The value of human dignity in our Constitution is not only concerned with an individual's sense of self-worth, but constitutes an affirmation of the worth of human beings in our society. It includes the intrinsic F worth of human beings shared by all people as well as the individual reputation of each person built upon his or her own individual achievements. The value of human dignity in our Constitution therefore values both the personal sense of self-worth as well as the public's estimation of the worth or value of an individual. It should also be noted that there is a close link between human dignity and privacy in G our constitutional order. The right to privacy, entrenched in s 14 of the Constitution, recognises that human beings have a right to have a sphere of intimacy and autonomy that should be protected from invasion. This right serves to foster human dignity. [3]

[3] Since 1948 the Universal Declaration of Human Rights has been the H most important, and the most effective, inspiration for personal, national and international efforts to secure and protect basic rights for humanity. Article 19 of the Declaration guarantees the universal freedoms of opinion, speech and publication. However, the declaration also acknowledges the ongoing struggle for press freedom and freedom of expression. I

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A Article 19 states that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

The issues in this matter

B [4] In this matter the applicants have instituted an application against the respondents in order to secure the delivery of copies of the first applicant's medical records regarding her stay at the second applicant's Cape Town hospital. They further seek an interdict to restrain the respondents from further publishing or commenting on these records C and from gaining the hospital records or any other private or confidential information concerning the first applicant's medical condition and/or treatment. They also seek relief requiring the respondents to destroy all reference to the aforesaid records in their respective notebooks and computers.

D [5] The respondents acknowledged that they were in possession of the first applicant's medical records pertaining to her stay at the second applicant's hospital in 2005. However, in the words of the deponent to the answering affidavit on behalf of the respondents, Ms Suzanne Smuts:

I respectfully submit that so germane are the allegations of alcohol E abuse to the first applicant's fitness for office, that they are not confidential. I also respectfully submit that such access is justified by the great public interest in the information published.

The facts

F [6] The first applicant is a member of the Cabinet of the Government of the Republic of South Africa. She is responsible for the portfolio of national health. The second applicant is a private hospital group. One of the private hospitals that the second applicant owns is operated at the Cape Town Medi-Clinic Centre. The respondents are the editor, journalists and the owner and publisher of the Sunday Times newspaper, G respectively.

[7] During 2005 the first applicant was hospitalised and treated as an in-patient at the Cape Town Medi-Clinic on two occasions. On Sunday, 12 August 2007, the Sunday Times published an article, apparently written by the second and third respondents, that was entitled 'Manto's H Hospital Booze Binge'. In the article the following is, inter alia, alleged:

The Sunday Times is also in possession of documents related to Tshabalala-Msimang's two hospital stays in 2005. Doctors who were given the files to assess for the Sunday Times said they were shocked at the excessive use of painkillers and sleeping tablets and said the patient I should not have been allowed to consume alcohol while on them.

Records show that on February 11, the night before her first operation, at 8:20 pm, the minister was handed two sleeping tablets - one from her own stock and one given to her by the clinic. The report clearly states that she also drank white wine and enjoyed her supper from Woolworths. At 11.30 pm it is recorded that she had wine again. The J following day she underwent surgery.

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On the night after the surgery at 7 pm, she was given her supper with A wine, and was also given sleeping tablets.

During the early hours of the morning she complained of pain and was given morphine.

On February 13 at 7 pm her record shows that she was drinking wine when Dr De Beer visited her. De Beer is an internationally renowned B shoulder surgeon.

. . .

During her second admission, her records show that on March 5, a few hours before her second operation on the infected shoulder, she ordered dry white wine at 8.45 pm.

On March 7 at 7 pm the records show that the minister was having a C drink with Dr De Beer.

[8] The first applicant contended that the article had contained other allegations which were either defamatory or invasive of her right to privacy and dignity. She was alarmed when she became aware of the fact that the Sunday Times had access to and was in possession of the private D and confidential hospital records relating to her stay and treatment at the Cape Town Medi-Clinic. She further stated that she was surprised to learn this particular fact. She emphasised that she had never authorised the release of such records to anyone, including the respondents.

[9] Then, on Monday 13 August 2007, Dr De la Hertzog (Hertzog), the E chairman of the second applicant, called the first applicant and spoke to her spokesperson. He had been informed that the files containing the first applicant's medical records were missing from the second applicant's archives. The first applicant's spokesperson then asked Hertzog to provide a written statement to that effect. Hertzog communicated a letter F addressed to the first applicant dated 13 August 2007 in which the first applicant was informed that:

(W)e hereby confirm that we have established that the hospital records relating to your two admissions to the Cape Town Medi-Clinic during 2005 have been removed from our secure archives in an unauthorised G manner.

We shall be lodging a case of theft with the South African Police Services in Cape Town tomorrow morning.

[10] Thereafter communication was shared on behalf of the applicants by their legal representatives and the respondents' legal representatives. H The gist of the applicants' contention was that the possession of the private and confidential medical records by the Sunday Times and by its employees contravened s 17 of the National Health Act 61 of 2003 (the National Health Act) and was therefore unlawful. It was requested on behalf of the applicants that these documents be handed over immediately to the legal representatives of the applicants. The respondents' I attorneys, in their turn, stated that the respondents did not admit that they were in breach of s 17 of the National Health Act. They further denied that the National Health Act placed an obligation on the respondents to return any of the documents which constituted medical records. J

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A [11] In her affidavit on behalf of the respondents, Smuts sets out that the respondents had derived the information that was published in the Sunday Times on 12 August 2007 from 'reliable sources, including the first applicant's medical records'. Smuts stated that the respondents were not in possession of the original records. She further set out that the B publication of the respondents' article of 12 August 2007 was protected by s 16(1)(a) and (b) of the Constitution. It was strenuously contended on behalf of the respondents that -

there is a great public interest in publication of the allegations in the respondents' article of 12 August 2007 and this public interest overrides any entitlement, that the applicants may otherwise...