Quote of the week

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.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
26 September 2007

Manto’s advert and the Health Act

My take on the advert taken out by the Department of Health to criticise the High Court judgment which allowed the Sunday Times to comment on the Minister of Health’s health records was published in the Business Day today. It can be accessed here. The crux of my argument:
This means section 14 forbids a newspaper from publishing anything about anyone’s treatment or stay in hospital — no matter how important that person may be or what that person may have done in hospital. I would argue that this section unjustifiably limits the right to freedom of expression because it is over-broad and, in effect, prohibits newspapers from uncovering corruption, maladministration or abuse of power if it relates to hospitals.

The allegation that the health minister had abused her power to jump the queue for a liver transplant is a case in point. It is exactly the role of a free press to uncover the abuse of power by the custodians of our constitution.

If the minister had in fact abused her power in such a despicable way — which is something she denies — the public interest would overwhelmingly require newspapers to publish this relevant information to allow voters to decide for themselves what to think of the government of the day and whom to vote for in the next election.

Yet, if a newspaper published allegations of such abuse of power and relied on the medical records of the minister, it would be contravening section 14 of the National Health Act and would be committing a criminal offence. Section 14 can thus in effect be used by public figures to prevent the publication of embarrassing and damning details about corruption and abuse of power. This makes the section overly broad and, I would contend, unconstitutional.

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