An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Tshabalala Msimang’s management of HIV/AIDS has been so arrogant, so criminally negligent, so maddeningly wrong, that it is difficult not to lay at least some blame for the unavoidable death of hundreds of thousands of South Africans from AIDS related illnesses at her door. Reading the article in the Sunday Times thus gives as much satisfaction as seeing the baddies in a Nazi movie kicked in the balls.
But of course, our Health Minister is a real person of flesh and blood – not a character in a movie. She has a family whose members have probably suffered greatly because of her alcoholism and tantrums. I therefore wonder whether the newspaper had not gone too far in invading her privacy by revealing that she was an alcoholic and that she had been convicted of theft more than 30 years ago.
Is this not a prime example of a new kind of dangerous tabloid journalism that will make the private lives of public persons fair game – no matter how intimate and personal the information? Do we really need to know these things? Will it make our democracy stronger and better?
One may of course argue that we have defamation laws and if the Minister wants to restore her credibility she should sue the Sunday Times. But it seems pretty certain that the reports are at least partly true, so a defamation action – even if successful – would not restore her credibility. On the contrary, a defamation action will probably be disastrous for her because the newspaper will be able to present witness after witness to tell lurid stories of our drunk as a skunk Minister.
Yet – the sensational headline aside – on balance I think the newspaper was justified to publish the story. The fact that the Minister is an alcoholic and drank like a fish is not relevant on its own, but it does become relevant against the background of her liver transplant and questions about whether she jumped the queue. The fact that she was convicted of theft might also seem besides the point until one realises that it could show a pattern of dishonesty on her part.
This story is relevant and important because at its heart it is about an incompetent and dishonest Minister who abused her power to obtain a new liver that could have saved the live of a more deserving patient. If true, the allegations would show that the Minister had abused her power in a most disturbing and illegal way to save her own life, in the process depriving another person of life-saving medical treatment.
It would also prove that the Minister has a history of dishonesty – stealing items from her very own patients for goodness sake – and that her queue jumping was therefore part of a long standing pattern of breaking rules. Obviously if true, her continued presence in the cabinet has become a national scandal.
The only way to clear her name is through defamation action, but as I pointed out above, she could only afford to do this if the allegations were false. I she thus fails to institute a defamation action, the President would be obliged to fire her. But of course he won’t. And that is a national scandal all of its own.