Quote of the week

It is clear that no legitimate objective is advanced by excluding domestic workers from COIDA.  If anything, their exclusion has a significant stigmatising effect which entrenches patterns of disadvantage based on race, sex and gender…. In considering those who are most vulnerable or most in need, a court should take cognisance of those who fall at the intersection of compounded vulnerabilities due to intersecting oppression based on race, sex, gender, class and other grounds.  To allow this form of state-sanctioned inequity goes against the values of our newly constituted society namely human dignity, the achievement of equality and ubuntu.  To exclude this category of individuals from the social security scheme established by COIDA is manifestly unreasonable.

Victor AJ
Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24 (19 November 2020)
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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