In what a media lawyer called a draw, the Johannesburg High Court ruled
that the documents relating to Health Minister Manto
Tshabalala-Msimang’s stay at a Cape Town hospital be returned to the
hospital forthwith, but said there was no order against future comments
being made by the Sunday Times, as that would amount to censorship, writes Ernest Mabuza in Business Day.

Judge Mahomed Jajbhay said it was clear that, in terms of the National Health Act, the medical records of a person were private and confidential, and the Sunday Times did not have any right to medical records of the minister, to possess or have access to them.

The Sunday Times used some of the details from her hospital records and from its investigations to report on August 12 that Tshabalala-Msimang allegedly behaved in an unruly manner, drank alcohol and abused her status by making unfair demands on hospital staff.

The judge said this was a case where the need for the truth was overwhelming, and the public craved the information in possession of the newspaper.

“The overwhelming public interest points in the direction of informing the public about the contents incorporated in the medical records in relation to (Tshabalala-Msimang), albeit that the medical records may have been unlawfully obtained.”

Jajbhay also said he did not believe the newspaper’s reporters should be ordered to delete all reference to the records pertaining to the minister from their personal computers or notebooks.

Sunday Times editor Mondli Makhanya hailed the ruling as “an important victory for press freedom”, and said the news- paper had already voluntarily handed over a copy of the files.

“The Sunday Times believes this story is of utmost public interest and, like the rest of the media, we will continue with our investigations,” he said.

Dario Milo, media law specialist at Webber Wentzel Bowens attorneys, said although the court ruled that the minister’s medical records should be returned, Jajbhay also made significant rulings in favour of media freedom.

Milo said most significant was that there was a “pressing need for the public to be informed about the information contained in the medical records” and that the information was capable of contributing to a debate in our democracy about the minister’s exercise of her functions.

“Effectively, the court thus accepted the argument that the publication of information from the records was in the public interest, as they were relevant to the minister’s performance of her ministerial duties. The result is in effect a draw between the minister and the Sunday Times.”

Click here to read the full report, posted on Business Day's website.