Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
23 August 2007

Manto and Mbeki: how far can criticism go?

Are Ministers and the President entitled to a certain amount of respect and deference because of their important positions in our society or should they expect to be subjected to more searing criticism and questioning than the rest of us?

It seems as if the cabinet thinks that members of the Executive are entitled to special treatment and that their credibility may not be questioned . Government spokesperson Themba Maseko said this morning that the Cabinet took a dim view of the “distasteful coverage” of the Minister of Health, particularly the unlawful publication and theft of her medical records from a hospital. “The sacrosanct principle of doctor-patient confidentiality should be respected at all times, and its application could not be dependent on a person’s class, position, gender or race.”

It is true that public figures do not forfeit their right to privacy just because they run the country – even when they run it very badly like Mbeki and Tshabalala Msimang. Such figures also have a right to expect that what happens between them and their doctors stay private. But the facts in this case seem to suggest that the doctor-patient confidentiality argument is a red-herring.

The Sunday Times on Sunday made very specific allegations that the Minister of Health had been given preferential treatment to enable her to get a liver transplant when she did not qualify for such a transplant because of her alcoholism. In making these allegations, the newspaper did not rely on information that could only have been known by the doctor and his patient.

The newspaper asked questions about the Minister’s treatment based on evidence that she was an alcoholic. They also reported that other medical practitioners had questioned whether she had not jumped the queue for the liver transplant. The legitimate question was asked whether her doctors had not broken rules and had not lied to the public when they assured us that everything was above board.

I cannot see how this reporting was in breach of the doctor-patient confidentiality rule unless one interprets this confidentiality rule to be so broad as to prohibit any discussion or speculation about the treatment of a patient by a doctor. Such an interpretation would be absurd because it would preclude the media from ever uncovering any maladministration or abuse of power in cases of medical treatment.

Where this treatment is controversial and perhaps based on abuse of the politicians power, newspapers would have a duty to report on it – as long as they do not report on information that only the doctor and the patient could have shared.

The doctor-patient confidentiality issue mentioned by the cabinet is therefore besides the point. Like the sub judice rule it is being used here to try and shut out any questions about abuse of power and whether the Minsiter really is a drunk and a thief. Interestingly enough, the cabinet did not address the substantive issues, namely whether the Health Minister had jumped the liver transplant queue or not. They therefore never disputed the factual basis of the report but is trying to change the subject – classic tactics if you do not want the public to know what is happening.

The spokesperson for the cabinet also criticised those who suggested that President Thabo Mbeki might have interfered to secure a liver transplant for his Minister of Health and stated that caution had to be exercised when criticising the head of state.

We think it is absolutely essential for South Africans to show a level of respect for the office of the head of state … If you look at the statement [by the DA], it says the Public Protector must investigate this allegation and the integrity of the office of the president was being called into question …

This is a complex issue bedeviled by race, but it seems to me also deeply problematic to argue, as Mr Maseko in effect does here, that it is inappropriate ever to question the integrity of the head of state. President Mbeki had denied involvement, but it surely is legitimate to ask the question.

Firstly, we know that heads of state often have little or no integrity – think Richard Nixon or George W Bush. Secondly, we know that President Thabo Mbeki and those in his office has a particularly tortured relationship with reality and “Truth”. The President likes to re-interpret it to deny problems and the Minister in his office has on occasion provided answers to questions which turned out to be, well, untrue.

In any case in a democracy where the Rule of Law is upheld, a Head of State cannot expect to get a free pass. I would agree that given our history there might be a need to be sensitive to the tone used when questioning the ethics of the Head of State – calling him a mass murdered might in certain circumstances be inappropriate. But for the President’s Spokesperson to suggest that one is not allowed to question the integrity of a Head of State is rather misguided. Is this also part of the attempt to change the topic?

No one is above the law and no one is beyond scrutiny. To suggest that the President is entitled to a free pass because he is our head of state is to question the very basis of our Constitutional democracy – namely that everyone is equal before the law.

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