Carte Blanche “gagging” order overturned

An interdict halting the broadcast of a Carte Blanche programme about allegations of malpractice by Dr Ntando Duze has been overturned. Illustration: Lisa Nelson.

• The KZN High Court in Pietermaritzburg has dismissed a bid by a Durban cardiologist to stop the broadcast of a programme in which former patients accused him of malpractice.
• An interim order was granted in June, but the court has now ruled it amounted to “an unjustified prior restraint” that would “undermine the essential role of the media in a democratic society”.
• Judge Siphokazi Jikela said there was “compelling public interest” in the conduct of a medical professional whose actions may pose a risk to the health and safety of current and future patients.

A “gagging order” preventing Carte Blanche from broadcasting a programme about a Durban-based cardiologist accused of malpractice has been set aside.

Pietermaritzburg High Court Judge Siphokazi Jikela has ruled that the finalisation of the interdict, granted in early June by another judge, would “amount to an unjustified prior restraint and would undermine the essential role of the media in a democratic society”.

The matter came before Judge Jikela for determination on whether or not the interim order should be made final.

She has now dismissed the application and ordered cardiologist Dr Ntando Peaceman Duze to pay the costs.

Duze was accused by some of his patients of inserting stents unnecessarily, which resulted in them lodging complaints with the Health Professions Council of South Africa (HPCSA).

Carte Blanche interviewed them and got independent experts to corroborate their claims.

While Carte Blanche gave him multiple opportunities over two weeks to respond to questions, Duze turned to the courts, claiming “defamation” and preventing the airing of the segment. He wanted the interdict to be made final until the HPCSA had ruled on the complaints against him.

The matter was argued before Judge Jikela the following week. She handed down her ruling on Monday.

Duze, in his initial application, also cited two other cardiologists as respondents but did not persist with his claims against them.

However, he said the complaints against him were instigated by them because of “professional jealousy”, a “conspiracy” and a “smear campaign”, because of the success of his practice at Westville Life Hospital.

He said he had elected not to respond to Carte Blanche because the questions were “defamatory” and sub judice as the issues were under consideration by the HPCSA.

Carte Blanche opposed the application.

Advocate Warren Shapiro argued that both the Constitutional Court and the Supreme Court of appeal had determined that a “prior restraint” was a drastic interference with freedom of expression, which was only granted in narrow circumstances.

Judge Jikela said that while Duze claimed the broadcast would infringe on his right to dignity and may cause reputational harm, she was mindful that “any restriction on media reporting warrants careful and cautious consideration”.

“Several defences may be raised in response to an allegation of defamation. In this matter, [Carte Blanche] sets out the defences that directly address the core grounds on which [Duze] has based his case.

“Notably they contend that the broadcast in question centres on the personal accounts of his former patients, which are supported by medical records and independent expert opinion. Duze himself states that he consults, on average, 50 patients a day and he treats nearly every heart patient at Westville Life Hospital.

“In these circumstances, there is a compelling public interest in the dissemination of information concerning the conduct of a medical professional whose actions may pose a risk to the health and safety of current and future patients,” Judge Jikela said.

Carte Blanche had also said the intended broadcast included comments made honestly and in good faith which fell within the ambit of protected fair comment.

“It is trite that media publications on matters of public interest enjoy protection, provided they are made reasonably, without malice, and after taking reasonable steps to verify the information prior to publication,” the judge said.

Judge Jikela said Duze’s right to protect his reputation and professional standing was not absolute and it did not trump Carte Blanche’s constitutionally protected right to freedom of expression which includes the freedom of the press.

“Importantly, the public also has a legitimate interest in being informed about matters that concern public health and potential risks to patient safety.”

She said Duze had only made “vague references” to pending hearings and investigations. Duze had to show a real and demonstrable risk of substantial prejudice “as opposed to a remote possibility”.

“The HPCSA is not a court of law. The sub judice rule does not apply automatically to its processes.

“I do not believe that the broadcast will improperly influence the panel of medical professionals tasked with adjudicating the complaints against him, particularly where those complaints are supported by scientific and clinical evidence.”

Turning to the issue of the balance of competing rights, Judge Jikela said Carte Blanche had sought external objective opinions and had given Duze the right to reply.

“Media reports are vital in ensuring transparency, accountability and the protection of the public, particularly in sectors as essential as health care,” she said.

Medical practitioners had a duty to act in the best interests of patients. Where there were breaches of these obligations, the public had a constitutionally protected right to be informed.

“While the right to dignity and reputation must be respected, it cannot be invoked to shield conduct that may endanger lives or compromise patient care,” Judge Jikela said.

She said prior restraint had a “chilling effect” on the right to freedom of expression.

If the broadcast was indeed unlawful or defamatory, Duze could claim damages from Carte Blanche.

“The inconvenience of pursuing a damages claim does not outweigh the importance of safeguarding freedom of expression, particularly where the applicant [Duze] has not demonstrated irreparable harm or the falsity of the statements,” she said.

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