Authored By: Faith Tshabalala
University of South Africa
1) Case Title and Citation
- Tshabalala-Msimang and Another v Makhanya and Others (2007)
- (18656/07) [2007] ZAGPHC 161; 2008 (6) SA 102 (W); 2008 (3) BCLR 338 (W); [2008] 1 All SA 509 (W) (30 August 2007).
2) Court Name and Bench
- High Court of South Africa
- Witwatersrand Local Division
- Judge: Jajbhay J
3) Date of Judgment
- 30 August 2007
4) Parties Involved
- First Applicant: Mantombazana Edmie Tshabalala-Msimang (Minister of Health)
- Second Applicant: Medi-Clinic Ltd
- First Respondent: Mondli Makhanya (Editor of the Sunday Times)
- Second Respondent: Jocelyn Maker (Journalist)
- Third Respondent: Megan Power (Journalist)
- Fourth Respondent: Johnnic Publications (Owner and publisher of the Sunday Times)
5) Facts of the Case
- In 2005, the second applicant’s Cape Town Medi-Clinic admitted the first applicant twice.
- An item titled “Manto’s Hospital Booze Binge” appeared in the Sunday Times in August of 2007.
- The first applicant’s private and personal medical records were used in the article.
- The applicants learnt that the medical records had been illegally taken out of Medi-Clinic’s archives.
- Relying on the public interest, the respondents acknowledged that they had the medical records but denied that they were illegal.
- The applicants requested the return and destruction of all copies of the records in addition to an immediate injunction against further publication.
6) Issues Raised
- Whether the first applicant’s medical records were illegally used and possessed by the respondents.
- Whether the first applicant’s constitutional rights to privacy and dignity were violated by the release of the medical records.
- Whether the ownership and dissemination of illegally acquired medical records were justified by the public interest and freedom of speech.
- Whether the respondents’ actions were forbidden by the National Health Act.
7) Arguments of the Parties
- Applicants’ Arguments:
– The National Health Act protects the privacy of medical records.
– Disclosure was never approved by the initial applicant.
– Her rights to privacy and dignity were breached by the data’ possession and release. – The responders continued to engage in illegal behaviour.
- Respondents’ Arguments:
– Public interest was served by the released information.
– The first candidate is a well-known person whose suitability for office was rightfully questioned.
– Publication was justified by the Constitution’s provision 16 on freedom of expression and the press.
– They denied having the original documents.
8) Judgment
The court decided in the applicants’ favour. It concluded that the respondents’ illegal acquisition and holding of the first applicant’s medical records constituted a violation of the National Health Act. The court upheld the interdict prohibiting the respondents from further commenting on or publishing information derived from the illegally obtained documents and ordered the return of the medical records.
9) Legal Reasoning
The National Health Act and section 14 of the Constitution both safeguard medical records, which the court underlined are intrinsically private and confidential. Although they are essential in a democratic society, press and speech freedom are not unqualified. The court ruled that the release of illegally obtained private medical information is not always justified by the public interest, especially when such material seriously violates privacy and dignity. The responders were unable to demonstrate that their ongoing use and retention of the documents were legitimate or supported by the constitution.
10) Conclusion
The court came to the conclusion that, in situations where information is obtained illegally, the protection of human dignity and privacy; particularly with regard to medical information, outweighs arguments of public interest. The ruling reiterated that the media must follow the law when covering such issues and that even public figures have substantial privacy rights regarding their medical information.
