Manto officials unwise (perhaps even stupid)

The Department of Health really knows how to generate bad publicity. Just as the controversy about the Minister alleged alcoholism and liver transplant queue jumping was dying down, its officials takes out a huge advert in daily papers to attack the judgment of the High Court in the case of Tshabalala-Msimang and Another v Makhanya and Others.

If only from a tactical perspective, publishing this advert was spectacularly unwise because it poured oil on a fire that was busy going out. It suggests a stubborn self-righteousness on the part of the Department officials. They really think by slagging off a judge in a paid for advert they will change the parameters of the debate around the Health Minister. Fat chance.

The advert is also problematic for at least two other reasons.

In a constitutional democracy like ours, there is a need to respect the principle of separation of powers. This means that the judiciary should not overstep the mark and intrude on the executive terrain. At the same time the executive should not be seen to interfere with the job of the judiciary.

When officials choose not to appeal a judgment of a lower court but then use tax payers money to criticise that judgment in the most disrespectful terms, stating like Sello Ramasala, the Head of Legal Services in the Department of Health, that the judgement was “a huge disappointment in terms of its internal contradictions and lack of coherence”, it suggest that the officials do not respect the boundary between the executive and the judiciary.

I am in favour of vigorous debate and criticism of court judgments as long as it does not impugn the dignity of an individual judge. It is therefore perfectly acceptable for lawyers and academics to argue that the judge in the Sunday Times case did not present a very good legal argument. But members of the executive have a duty to uphold the Constitution and the law and should not do anything seen as undermining respect for the law. This advert clearly does just that, suggesting that the judgement should not be respected.

Of course the advert is also problematic because the arguments put forward by the Head of Legal Services seem to fundamentally misunderstand the scope of the judgment. Mr Ramasala argues that the judge erred in finding that the Sunday Times had broken the law by possessing and quoting form the medical records – something prohibited by the National health Act – yet allowed the Sunday Times to continue commenting on the Minister’s health issues.

Mr Ramasala seems to think (or pretends to think?) that this means the judge allowed the Sunday Times to continue breaking the law from quoting from the Minister’s health records. But this is not what the judge did at all: he merely said that the Sunday Times could not be prevented from commenting on the unlawfully obtained records. This subtle but rather obvious difference eludes the learned lawyer from the Department of Health.

Of course this argument about the Minister’s health records is a red herring and has been used by the Department and the ANC to divert attention from the real issue which is whether the Minister is fit to continue in public office. Did she jump the queue to get a liver transplant, thereby abusing her power to save her own life and deprive another person from a life-saving operation? If she did jump the queue, she clearly is not fit even to sell second hand cars – let alone be the Minister of Health.

We also should focus on whether the Minister is actually doing her job. Given the difficult circumstances faced by our health care system, has the Minister’s stewardship made things better or has it been a disaster. Available evidence suggests the latter, but sadly this does not matter for those who can decide about the Minister’s fate.

Why would one worry about whether poor people are dying in our hospitals when one has an old friend to support and defend at all cost?

Dali Mpofu should rather not dabble in constitutional law

It’s a good thing Dali Mpofu, Group CEO and Editor-in-Chief of His Masters Voice also known as the SABC has stopped arguing constitutional law cases because he obviously has no clue of how to interpret the Bill of Rights.

In his letter announcing the SABC’s resignation from the South African National Editors Forum (SANEF) he argues (quite correctly) that at the heart of our Bill of Rights is the protection of human dignity and that most rights flow from the understanding that peoples’ human dignity should be respected and protected.

But then he makes a logical jump: human dignity must trump the right to freedom of expression and newspapers therefore never have the right to publish things that would affect the personal dignity of an important elected representative like our beloved Minister of Health.

We cannot remain quiet while our mothers and our democratically chosen leaders are stripped naked for the sole reason of selling newspapers.

The problem is that Dali – like many lawyers still stuck in the pre-constitutional common law paradigm – confuses the personal subjective dignity of an individual usually protected by the common law and the very different objective constitutional right and value of dignity.

The constitutional notion of dignity flows from the assumption that every individual has an inherent human dignity because he or she is human being. The apartheid government did not respect this dignity because it denied individuals the right to moral agency and thus the right to define for themselves who they are and how they want to live their lives. If one denies people the right to an identity, one denies that the person has an inherent moral worth and thus deny that person her dignity.

Protecting a person’s dignity in the constitutional sense therefore has very little to do with ensuring that important politicians do not have their feelings hurt by the truth - the common law of defamation takes care of that potential harm in appropriate cases. The Constitution, on the other hand, deals with a far more profound and important notion of dignity because it aims at creating a society in which each human being’s humanity is equally respected – whether one is a mother of the nation, an elected official, a homeless DA supporter or even Dali Mpofu.

This notion of dignity is aspirational and deeply optimistic. It suggests that humans are so special that we should respect their moral agency equally so that they can decide for themselves who they are and how they want to live. In short: a society where the equal moral worth of all will be respected.

But we cannot decide for ourselves how to live and who we are, we cannot begin to have moral agency, if we are not informed by the media about what is happening in the world and what our options are. To suppress information of public importance is to treat people like children and hence to disrespect their human dignity.

Politicians and boot-lickers of the powerful and influential who claim that their personal subjective dignity should trump the objective, more profound, dignity protected in the Constitution, are therefore self-serving charlatans hiding behind a completely false understanding of the Constitution.

The constitution protection of the dignity of every person therefore demands that we protect the vigorous, critical and fearless media from interference by self-serving politicians and other higher ups.

What people like Dali Mpofu really seem to think is that the Constitution should protect politicians and others important people from the truth – especially where the truth would reflect badly on that person and may reveal that the person is incompetent, corrupt, dishonest, craven or just plain stupid. Such revelations would obviously be personally hurtful and would affect the persons subjective dignity, but it would have nothing to do with the Constitutional concept of dignity.

To argue otherwise is obviously dangerous and perverting of the Constitution and should be resisted at all cost.

Judge errs in gagging Mail and Guardian, but truth reavealed

If the SABC internal audit report is to be believed, the head of the SABC’s legal services, Mafika Sihlali, is a fraudster and a thief of the most brazen kind. It is clearly in the public interest that such explosive allegations made by the most credible of institutions – the SABC internal auditing committee – be aired in public.

After all, we pay our TV licenses and have a right to know about serious, credible allegations of theft and fraud at the public broadcaster. However, Judge Lettie Molopa, of the Pretoria High Court disagrees. In the early hours of Saturday morning she granted an interdict against the Mail and Guardian prohibiting it from publishing details of the internal report.

She argued that Mr. Sihlali did not have sufficient time to respond to the allegations made in the report. Focusing on the potential harmful effect of publication on Sihlali she said: “No doubt once the article is published it will definitely destroy the applicant.” She said it was “just and equitable” to interdict the Mail and Guardian.

I find the logic of the learned judge, well, spectacularly flawed.

It is true that the findings in the internal audit report is damning, as it contains recommendations that Mr. Sihlali should be criminally prosecuted for theft and fraud. If the findings of the report are correct, Mr. Sihlali should surely also be barred from ever acting as an attorney again. The report finds prima facie evidence that Sihlali has defrauded the SABC of almost 2 million Rand. The fraud allegedly started only 3 weeks after he started working at the SABC.

He did this by allegedly irregularly outsourcing work to his own law firm, charging double for VAT, claiming double payments for work and giving work to his friends.

Troubling also is the fact that the Head of the SABC, Dali Mpofu (called a compulsive, sophisticated liar by Winnie Mandela in 1992) shares directorships with Sihlali in nine different companies, which are active in financial services, advisory services and mining. In addition, SABC chairperson Eddie Funde and Pearl Luthuli, the head of SABC3, share a directorship with him on Onetel, a publicly listed telecommunications company.

So far neither Mpofu or the SABC Board has taken any action against Sihlali despite the existence of the report. This seems fishy in the extreme.

In this context the judgment from the High Court seems deeply troubling. It seems to me not to have taken into account or misinterpreting the recent judgment of the Supreme Court of Appeal in Midi Television (Pty) Ltd vs National Directorate of Public Prosecutions.

In that case Judge Nugent argued that a publication could only be gagged if the prejudice that the publication might cause is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then the court would not gag a paper unless it believes that the disadvantage of curtailing the free flow of information outweighs its advantage.

In making that evaluation the court will not only consider the interests of the newspaper but, more important, the interests of every individual in having access to information. The interest of the public to know would be even more important where the state is trying to stop the publication of embarrassing information and where they would not be able to show that the publication would infringe any of the other rights in the Constitution.

In this case, Judge Molopa decided that the interest of one person – a servant of the people working for the public broadcaster who have been convincingly implicated in criminal activity – should weigh heavier that the interest of the 45 million South Africans who have a right to know how their TV licence fees and taxes are spent and how the public broadcaster deals with corruption in its midst.

This she could only do by not giving any weight to the interest of the 45 million ordinary South Africans and giving far too much weight to one (relatively important, politically connected and influential) person’s interests. It seems to me that this judgment shows a troubling contempt for the masses of the people and our Constitution, and a surprising loyalty to rich, well-connected elites.

It is profoundly in the public interest (and in the interest of democracy) for the M&G to publish such serious allegations. Mr. Sihlali could have been given the opportunity to respond to the allegations next week, but at some point surely the information would become known and he would suffer the consequences. The mere existence of the report hurts his reputation - the Mail and Guardian is merely reporting on facts but are now punished for this by the Judge. To give an interdict now only postpones the inevitable publication of the allegations that Mr. Sihlali is a crook. Why interdict the paper after it was printed except to teach the Mail and Guardian a lesson?

If Mr. Sihlali did not want to have his reputation destroyed, he should not have acted in a way that provided prima facie evidence of criminal activity to the audit committee. It is not for a judge to protect the actions of such a public servant from public scrutiny, because it sends a signal that the judge does not respect freedom of the media and thinks that the media did something wrong by exposing the credible findings of theft and fraud.

This seems to suggest that the Judge is untransformed and that she has not internalised the values of openness and freedom enshrined in the Constitution. It would be a good thing to send her on a crash course to familiarise herself with the values of the Bill of Rights. I, for one, would be happy to assist if she was at all interested in learning more about the Bill of Rights.

Good news for press freedom

Some times the good guys do win. The Department of Transport lost their bid in the Pretoria High Court today to gag Beeld newspaper from publishing information obtained from a leaked management report by the Auditor General on a network audit of the old NaTIS system.

The AG report apparently highlights “maladministration and poor governance” that led to security gaps in the new eNaTIS system. The Auditor General report highlighted “weak passwords and password policies" and "access by users to powerful utility files and even blank passwords allowing anyone to access the system”.

Sias Reyneke, SC, on behalf of Beeld, argued that the Department of Transport had known about the security problems since February when the Auditor General's report highlighted them – and probably longer – but nothing was done to fix them. "The press should not be blamed for blowing the whistle on the maladministration and poor governance," he said.

In his judgment judge Dion Basson said that the public's right to know about possible security problems with the new electronic traffic information system (eNaTIS) outweighed confidentiality concerns over the information. He dismissed the arguments of Minister Radebe's counsel, Pat Ellis, SC, that by publishing the story Beeld would put confidential information on security gaps in the old NaTIS and the new eNaTIS into the public domain, which could then be misused.

This is great news for freedom of the press. There has been a trend for the government and other aggrieved parties to run to the court to try and stop newspapers from exposing corruption and maladministration. Often this is done after the newspaper – like Beeld in this case – did the right thing by first approaching the aggrieved party for comment.

The outcome in this case is not surprising because it seems to be based on the precedent setting judgment of the Supreme Court of Appeal in Midi Television v Director of Public Prosecutions. Justice Nugent, writing for the full bench, emphasized the importance of freedom of expression for our democracy and developed a very strict test to decide when the exercise of press freedom could be restricted to protect another right or interest.

Judge Nugent argued that a publication could only be gagged if the prejudice that the publication might cause is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then the court would not gag a paper unless it believes that the disadvantage of curtailing the free flow of information outweighs its advantage.

In making that evaluation the court will not only consider the interests of the newspaper but, more important, the interests of every individual in having access to information. The interest of the public to know would be even more important where the state is trying to stop the publication of embarrassing information and where they would not be able to show that the publication would infringe any of the other rights in the Constitution.

In the Beeld case it was clearly far more important for Joe Public to be informed about the disastrous implementation of the eNaTIS than for the Minister to be saved from acute embarrassment.

The Minister should, however, be taken for task for launching the court application in the first place. In a democracy it is our right as citizens to be informed by the media about both the good and the bad things a government does. By trying to stop us from learning the truth about the eNaTIS balls-up, the minister was attempting a cover-up. He should be ashamed.