TAC given a taste of its own medicine, says Rath's counsel
'Campaign has called ministers names'May 27, 2005 Edition 1
The Treatment Action Campaign could not ask for protection against defamation when it had itself labelled cabinet ministers murderers, the Cape High Court has been told.
"If you want to go into the arena and dirty your hands and fight, then you cannot come to a court of law when you get a response in kind," advocate Dumisa Ntsebeza told a full bench of judges yesterday.
Ntsebeza was appearing for the Traditional Healers' Organisation (THO), which had been granted permission to join vitamin entrepreneur Matthias Rath and his Dr Rath Health Foundation in opposing a TAC application for an urgent interdict.
TAC says Rath and the foundation have defamed it by claiming it is a front for pharmaceutical companies and that it is urging people to use "toxic" antiretroviral drugs for this reason.
The hearing was adjourned yesterday before Ntsebeza had closed his argument, when Justice Siraj Desai said the court had "run out of time".
He said he would meet counsel in chambers today to arrange a date to finalise the case.
Ntsebeza told the judges that when a party sought relief of this sort it should be able to show the court it was "lily white" and not itself wont to do the sort of things of which it complained.
He said TAC chairman Zackie Achmat had personally insulted Health Minister Manto Tshabalala-Msimang at a Health Systems Trust meeting in 2003 and had libelled members of the THO in court papers.
In its ARV rollout campaign, the TAC had called Tshabalala-Msimang and then-trade minister Alec Erwin "murderers", and the TAC had possibly defamed President Thabo Mbeki by claiming he was paranoid.
"The applicant courts controversy," Ntsebeza said. "But the moment it becomes hot in the kitchen, in a manner of speaking, it runs to you. All we are saying is, it cannot be right."
If the TAC wanted to rely on the argument that its good reputation was being damaged, it had to show that it had one.
Earlier, Rath's counsel, John van der Berg told the court his client should not be deprived of the chance to debate issues if he hit "below the belt".
Even unfair debate could not and should not be restrained, he said.
"There may be some who are wounded in the process, but as long as it happens within the ambit of the law it will still be in order," he said.
Van der Berg told the court Rath would suffer "enormous harm" if the application was granted.
"One side of the debate will be silenced at the convenience of the other side," he said.
"It's not a question of stifling the arguments of the TAC... the TAC has had free and open debate on its side.
"We ask for the same on our side."
A TAC campaign urging HIV-positive pregnant women to insist on nevirapine or AZT at birth to prevent mother-to-child transmission constituted "direct third party advertising", Van der Berg said.
Judge Desai pointed out that these were generic rather than brand names.
"They are not promoting any particular pharmaceuticals," he told Van der Berg.
"No, but pharmaceuticals nonetheless, my lord," replied Van der Berg.
It also had to be asked whether the claim that the TAC was a "front" for the pharmaceutical industry would appear defamatory to a person "on the Clapham omnibus".
He said he had found no fewer than 13 meanings for "front" in the dictionary, one of which was simply "outward appearance".
Justice Willem Louw pointed out, however, that Rath literature also referred to TAC as a "Trojan horse" and "running dog" for the industry.
Several hundred TAC supporters and a group of traditional healers from Paarl who said they backed the organisation gathered outside the court in a show of support.
