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When private affairs of politicians can be discussed: Comparing the case of Tshabalala-Msimang, as we think about the Malusi Gigaba video scandal

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When private affairs of politicians can be discussed: Comparing the case of Tshabalala-Msimang, as we think about the Malusi Gigaba video scandal

2nd November 2018

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A video said to be containing compromising sexual content in relation to Minister of Home Affairs, Malusi Gigaba has arrested devotion in the public domain. It has diverted attention from other pressing issues of national interest such as the heist of the VBS as well as the land question.

Most legal commentators have sought to explain whether or not this video – said to be intercepted and disseminated illegally - may be shared, and I think that while there is general consensus that it should not be shared, we should encourage a broader dialogue, namely when private affairs – and excuse the pun – of politicians can be discussed publically.

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In giving meaning to the discussion, I will briefly reflect on the court case of Tshabalala-Msimang and Medi-Clinic versus Makhanya, which I will simply refer to as the Manto case. The case has several nuances, but I will distill the main issues in it as I see them. In the Manto case, an article was published by Sunday Times to the effect the then Minister of Health, Manto was consuming alcohol while in hospital before undergoing a surgery. The hospital records, which were intercepted, were among the documents which informed the article, together with a “reliable source”. The Minister – for obvious reasons - wanted the medical documents returned and all copies thereof destroyed. Her argument was premised on the fact that the National Health Act protects medical confidentiality, such that medical records of a patient can only be divulged if the patient consents to this; or the law requires so.

The court found that Sunday Times did not have any right to the medical records of the Health Minister since they were sourced illegally, and ruled that they be destroyed. Interestingly enough however, the court ruled that the notes used by the journalists were not affected by the order, and that there can be no such order that the media must never – in future – comment on the saga, something which the Minister wanted.

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Both the persons in question (Gigaba and Tshabalala-Msimang) are Ministers, politicians and public figures. Both found themselves in compromising positions as a result of the illegal interception of information or content relating to their personal lives – the one his sexual life, and the other, her medical records respectively.

While some argue that matters which relate to public figures must always be discussed due to public interest, I would be remiss to agree to such a view which, if unqualified, could lead to absurd conclusions. Public interest does not simply mean that the public must be interested in a matter. The public is usually interested in many things concerning a political figure – what they eat; drink; wear; what time they sleep, or even who they sleep with. I submit that in order to establish public interest, there must be some nexus between the controversial issue at hand and the holding of office by the public figure. The more the controversial issue is closely related to the office of the public figure, the more credence is given to the disclosure of the damning information. So imagine for a moment a Minister of Police being involved with drug syndicates.

What does Malusi posting a compromising sexual video have to do with his duties as a Minister form a legal view? Probably nothing, but then again, Malusi did not become a Minister by chance, nor is he a Minister unto himself or the African National Congress. He is Minister unto the public.

The Constitution guarantees the right to privacy, and this includes the right not to have the privacy of your communication infringed. Nowhere does the Constitution say that everyone “except politicians” has the right to privacy. This alone tells you that even politicians, like everybody else, have the right to privacy. This right is not absolute, and it can certainly be said that the more a person enters the public domain, the more their right to privacy or their actual privacy (perhaps coincidentally) shrinks. 

Ministers are like mini-presidents, and that is why they are part of the Cabinet: headed; appointed and dismissed by the President. Think of it like this: the President cannot be at two places doing two things simultaneously, but he still takes responsibility – at least politically – for everything. Therefore, he appoints other ‘mini-presidents’ under him to lead different portfolios and to report back to him, hence we have the Minster of Education; Health et cetera, and these people are the right-hand, as it were, of the President.

Manto ran to the courts, but the impugning had already rooted. Perhaps Gigaba will run to the courts too for defamation or crimen injuria, but against whom?

Written by Thubelihle Mpisi, legal consultant specialising in Commercial Law and Governance at MPISI CORA, a legal consultancy firm based in Johannesburg, practicing in commercial law; risk management; mining law and governance

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