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Prison doctor suspended, faces defamation suit for criticising government minister

(FXI/IFEX) - The following is an FXI media statement:

Minister Seeks Lockdown on Freedom of Expression in Correctional Services

A defamation suit filed recently by Ngconde Balfour, Minister of Correctional Services, against Pollsmoor Prison doctor Paul Theron, provides further evidence of a disturbing trend; namely, that public servants who blow the whistle on corruption, misadministration and other abuses risk being fired and sued.

Minister Balfour is claiming R500 000 in compensation for the damage to his "reputation and good name", resulting from the publication of statements by Dr Theron that were critical of the suspension of Pollsmoor's senior nurse, Andries Slinger. Balfour alleges that statements by Theron that "it is common knowledge that the instruction for the suspension of Mr Slinger came from head office and ultimately from the office of the Minister, Mr Balfour. . . that Mr Slinger has been the scapegoat to reduce the impact of the visit by members of the Parliamentary Portfolio Committee and the press reports that followed that visit. . . that the Department of Correctional Services should move away from defensive reaction and cover up," were made with the intention to defame the reputation of Minister Balfour and to cause him public embarrassment. Dr Theron has not yet filed his defence to the claims, but he has been suspended by the Department of Health and faces a disciplinary hearing on charges relating to his alleged whistleblowing activities.

The media has reported widely on the deteriorating conditions at Pollsmoor Prison. A visit by a Parliamentary Portfolio Committee on Prisons in May 2007 found that the prison suffered from extreme overcrowding, shortage of medical personnel, and lack of adequate medical supplies and equipment. Since Theron's suspension, the entire prison population of 7000 inmates has apparently only been left with three doctors and his former section of about 1600 juveniles, Medium A, without a single physician.

Yet the case of Dr. Theron is most worrisome in the way that it differs from some of the recent, high-profile cases originating in the Department of Health. Theron followed certain internal processes to raise public interest concerns, without first "running to the media". Last year, Dr. Costa Gazidis won his whistleblower case against the Minister of Health even when he made statements directly to the media criticizing the Minister of Health. Theron did not launch a surprise, media-friendly visit to Frere hospital like former Deputy Minister of Health, Nozizwe Madlala-Routledge, who was fired by President Mbeki two weeks ago for her "inability to work as part of a collective".

Thus, the FXI remains highly disturbed by the state of free speech in the public sector. The "acceptable" ways of voicing one's concerns seem consistently ignored, and the moment that public servants begin to be truly heard, they are victimised or criminalised. The disciplinary charges against Dr Theron are virtually identical to that of Dr Nokuzola Ntshona, suspended last week for 'prejudicing the administration, discipline or efficiency of the department' after she spoke to the media regarding the conditions at Cecilia Makiwani Hospital. Yet in both cases, the FXI suspects that both are simply being pursued for bringing unpleasant truths to light for the public interest. Theron may well qualify as a whistleblower under the Protected Disclosures Act.

Even if it is proved that Theron's statements are defamatory, one or more of the established legal defences may excuse him from liability; namely, truth in the public interest, privilege, fair comment, and reasonableness. And speech on matters of public importance is now given heightened protection from defamation law actions. In a case such as this one where a public figure sues, the public interest element of these defences is usually easily met. As many public figures have found to their cost, the reality is that public figures face an uphill battle if they are to succeed in a defamation claim against the media or a whistleblower. Minister Balfour may yet discover that robust criticism of his conduct is not regarded as defamatory.

This media statement contains the personal views and opinions of the FXI and not necessarily the views and opinions of Dr Theron.

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