Recent reports of government reaction to the Sunday Times' publication of reports about the health minister indicate a disturbing vendetta against the paper, writes Franz Kruger in the Mail & Guardian.

Franz Kruger writes in his column The Ombud in the Mail & Guardian:

There’s a kind of madness abroad in the country when a newspaper editor faces arrest for the possession of documents.

The police have now denied they intend to arrest anybody from the Sunday Times, but it is clear they are tackling the case of the disappearance of the medical file of Health Minister Manto Tshabalala-Msimang from a Cape Town hospital with a seriousness that is out of all proportion to the crime. A top police officer has reportedly been told to prioritise the investigation, and is said to have spent a week in New Zealand interviewing the nurse believed to have passed the file to the Sunday Times.

Minister in the Presidency Essop Pahad has been quoted as calling on government departments to use their advertising muscle against the paper. It is also reported that the phones of the paper’s editor, Mondli Makhanya, and a senior colleague may be tapped, and that “operatives around the country” are working to dig up dirt on them.

Various elements of these reports are not yet substantiated. But if true, the reports indicate a disturbing vendetta against the newspaper. Rapport editor Tim du Plessis calls it “real Big Brother stuff”. It is also illegitimate and probably unconstitutional for the state to use public resources in this way.

Journalists are not above the law. In this case, Johannesburg High Court Judge Mohamed Jajbhay ruled that the records were protected by the National Health Act, and a charge of possession of the file is conceivable.

A direct charge of theft, as indicated in some early reports, seems far-fetched. It is as amusing as it is unlikely to imagine the portly Makhanya scurrying up drainpipes to break into the records room of the Cape Town Medi-Clinic.

The constitutionally guaranteed right to privacy is probably more weighty than the relatively obscure provisions of the Health Act. We all like to keep matters surrounding our health to ourselves — it’s a very private area.

In the case before Jajbhay, the Sunday Times argued strongly that the public interest overrode other considerations. Although he stopped short of finding that it justified the possession of the documents, the judge accepted the public interest argument.

He said: “The information although unlawfully obtained went beyond being simply interesting to the public; there was in fact a pressing need for the public to be informed about the information contained in the medical records.”

There are occasions when journalists may decide that the public interest overrides the letter of the law. They may buy drugs on the street to expose the drug trade, for example.

It is like racing through red traffic lights to get someone to hospital in an emergency, as Wits journalism professor Anton Harber points out. A prosecution for breaking traffic regulations is inappropriate in such circumstances.

Journalists should not go lightly in this direction. The issue at stake has to be important if methods of dubious legality are considered.

In this case, it is known that the file was offered for sale to various news organisations. Du Plessis says he was offered the documents for about R100 000, but would not buy them. The Sunday Times has insisted it did not pay for the documents. If the story had been bought, the dubiousness of the methods used would probably have outweighed the story’s importance in the eyes of most people.

Defining the public interest is no easy task. Jajbhay said it is a “mysterious concept, like a battered piece of string charged with elasticity, impossible to measure or weigh”. The public debate around the notion is precisely a question of different views of where simple curiosity ends and a public right to information begins.

It is primarily the audience who judge whether the public interest was clear enough to justify the methods used. But journalists also have to be prepared to justify themselves in court.

A simple charge in a lower court is one thing, but the police launching a massive international investigation is quite another. The authorities’ disturbingly excessive zeal can only be seen in the context of the succession struggle in the ANC.

Like the suspension of prosecutions chief Vusi Pikoli, the protection of police chief Jackie Selebi and a slew of other presidential steps and interventions, the crackdown on the Sunday Times is most easily understood as part of a package of desperate and increasingly irrational moves by the presidency ahead of the Polokwane conference. If there is another explanation, it would be good to hear it.

These are testing times for our democracy. One has to ask: what else can possibly happen before the ANC conference? And will things return to some semblance of normality afterwards?

* This column first appeared in the Mail & Guardian on October 19.  Kruger is the paper's ombud.