As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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 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.
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.