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By Marika Sboros
Legally speaking, it’s not correct to say the Health Professions Council of South Africa (HPCSA) hearing against Prof Tim Noakes was postponed or adjourned from June 4 until November 23.
The commencement of the hearing was delayed.
“You can’t postpone or adjourn a hearing that hasn’t even started,” says Johannesburg advocate Michael van der Nest SC, a member of Noakes’ legal team.
True enough, and it might sound like semantics, but it went to the heart of the legal process required for justice and fairness at the very least to be seen to be present at the start of a hearing.
In this case, the hearing couldn’t even get off the ground, because the Professional Conduct Committee the HPCSA had set up to hear the allegation of unprofessional conduct against Noakes, was not properly constituted in accordance with the applicable regulations and the provisions of the Health Professions Act.
It lacked the constitutional requirement of at least two members from “relevant profession”, currently registered with the Medical and Dental Council’s board, and thus who could be considered Noakes’ peers. There was only one.
One would have thought the HPCSA could have got the maths right on that requirement.
No legal rocket science
Cape Town attorney Adam Pike, of Pike Law, who heads the legal team, says there’s no legal rocket science behind what went wrong for the HPCSA on the day:
“The fundamental point is that a medical practitioner facing a charge of unprofessional conduct must be judged by their peers and the public. Members of that committee must be, and be seen to be, independent and objective. If they are not, then we have to do something about that.
Case against Tim Noakes at the HPCSA. Is @ProfTimNoakes a trail-blazing hero or a dangerous lunatic?
— John Robbie (@702JohnRobbie) June 4, 2015
“Before a committee can hear and judge a matter, it has to abide by its own rules and be properly constituted. In this case, the committee was not constituted in compliance with those rules.
“We spent the whole day arguing about this, but in the end, our view prevailed.”
A different, equally contentious issue concerned the impartiality – or lack thereof – of committee members.
Noakes’ legal team was notified a little over a week before the hearing that the committee included North-West University dietetics academic, Prof Edelweiss Wentzel-Viljoen, chair of the HPCSA’s Professional Board for Dietetics and Nutrition.
The team wrote to Wentzel-Viljoen, requesting that she recuse herself, since she had issued public statements on behalf of the HPCSA warning the public against low-carb, high-fat diets, and thus could not be seen as impartial in this case.
The HPCSA indicated that it would oppose her recusal, but she agreed a few days later. Sensible move, I’d say.
The last-minute replacement was Stellenbosch University dietetic academic Prof Renee Blaauw, leaving Noakes’ legal team just a few days before the hearing to respond. The team was also told at the hearing that Blaauw is a member of the Association of Dietetics of South Africa (ADSA), whose president, Claire Strydom, started this whole odd ball rolling when she laid the charge against Noakes way back in February 2014.
One would have thought the HPCSA would have known that Noakes’ legal team would rightly object to a committee member sitting in judgement on Noakes when she belongs to the organisation that laid the charge of unprofessional conduct against him in the first place.
That nicety appeared to have escaped the HPCSA, and its advocate, Meshak Mapholisa. He continued to insist that the committee was properly constituted, despite the chair of the committee ruling otherwise. He has also oddly insisted throughout that a dietitian must be on the committee, since the case concerned dietary advice (unconventional in this case), and Blaauw should be it, since she had declared her impartiality and was therefore perfectly acceptable.
Fear or favour
Mapholisa is supposed to be prosecuting this case “without fear or favour”. Yet he seemed to be attempting to build a case in the “prof forma complainant” ADSA’s favour for dietitians as the sole vehicle for dietary advice in South Africa.
That has always struck me as anachronistic. After all, the ancient Greek sage Hippocrates, who is known as the “father of modern medicine”, intuitively understood the link between diet and health when he exhorted his followers to: “Let food be your medicine, and medicine be your food.”
Mapholisa’s insistence precipitated another flurry of legal argument. Van der Nest pointing out that dietitians could not qualify under the requirement of members from “relevant professions”, since they were not registered with the medical and dental board, as Noakes was.
He also said Mapholisa could not unilaterally dictate the composition of the committee, but had simply to abide by the constituted requirements. The power to appoint the committee lies with the chairperson of the professional board.
I couldn’t see a flaw in any of his arguments.
Committee chair Advocate Joan Adams did her best to negotiate the judicial mine fields. She came back from an adjournment saying the committee agreed that it was improperly constituted, but that Blaauw should be allowed to stay.
Van der Nest, again with what seemed to me to be flawless logic, pointed out that an improperly constituted committee couldn’t make a ruling on anything, by virtue of being improperly constituted.
Whether the committee will be properly constituted when November rolls around, whether it will include Blaauw, and whether Noakes’ legal team will be given more time than the very short time they were this time round to access or object to constituent members, remains to be seen.
Pike says Noakes and his legal team were deeply disappointed with the delay.
“It was a strange, bitter sweet day, ” he says.
“We came prepared to hit the ground running in the event that the Committee decided to go ahead despite our objections.
“These delays happen all the time in contentious proceedings. We’re happy that our view prevailed. Now we look forward to fighting the good fight in November.”
I asked Mapholisa for comment, but he declined, saying I had to go through the HPCSA communication channels.
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