Seriously! You’d have to be smoking something to make this stuff up. Just when you thought the Health Professions Council of South Africa February 2016 hearing against world-renowned scientists Prof Tim Noakes couldn’t plunge deeper down the rabbit hole, it does.
By Marika Sboros
Only the imagination seems to limit the lengths to which the HPCSA will go to muzzle University of Cape Town emeritus professor Tim Noakes. It objects strongly to his views on butter, eggs, bacon and broccoli. Here’s what happened this time round on the hearing’s first day:
Members of the HPCSA Fourth Preliminary Inquiry Committee investigating the original complaint against Noakes indulged in actions that are questionable ethically and legally. That’s according to evidence Noakes’ legal counsel, Johannesburg advocate Michael Van der Nest, presented on February 8 to the independent Professional Conduct Committee hearing the charge.
The chair of the committee is a professor of medical bioethics at the University of the Witwatersrand, Amaboo “Ames” Dhai. Van der Nest says Dhai and all committee members went beyond their remit in deciding whether or not the complaint against him had any merit at all. They all appeared keen to see that the case against him succeeds.
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Chair of the committee, Pretoria advocate Joan Adams, adjourned the hearing till February 9. That was after Van der Nest requested rulings from the committee based on the conduct of the HPCSA Fourth Preliminary Committee of Inquiry. He asked for Dhai to be instructed to give reasons for its decision and documentation on which it based that decision.
One would have thought Dhai would have done that without being told to. Or that her committee members would have spotted the oversight. However, it is becoming clear that they did not, wittingly or unwittingly. As a result, their actions have looked increasingly suspect.
Dhai is director of the University of the Witwatersrand Steve Biko Centre for Bioethics at the Faculty of Health Sciences. Her fellow committee members included UCT professors John Terblanche (surgery) and Denise White (psychiatry).
Van der Nest told the hearing that Noakes’ lawyer, Adam Pike of Pike Law, sent documentary evidence of irregular conduct to HPCSA registrar Dr B Mjamba-Mtshoba.
Mjamba-Mtshoba said she had no power to intervene. As a consequence, she said Noakes’ defence team should seek a ruling from the Professional Conduct Committee.
Van der Nest clearly wasn’t impressed with Mjamba-Mtshoba saying she had no power over her own committees.
He took the committee through a brief history of the background to the Fourth Preliminary Inquiry Committee. He gave detailed evidence of irregularities.
Van der Nest noted that on May 4 2015, Pike addressed a formal “discovery” notice to the HPCSA asking for written reasons for the committee’s decision to charge Noakes. He drew attention to the HPCSA’s formal response saying it would disclose the reasons at a pre-hearing meeting on May 28, 2015. He noted that to date, the HPCSA had not done so.
Not surprisingly, the HPCSA’s new advocate, Ajay Bhoopchand, went into full denial mode on his client’s behalf. He claimed that the HPCSA registrar got it all wrong. He said Adams and her committee had no power to make the rulings Van der Nest was requesting. Noakes’ only redress was the High Court for a review of Mjamba-Mtshoba’s decision, Bhoopchand said.
Van der Nest was only relatively restrained when he dismissed Bhoopchand’s contentions out of hand. He said the HPCSA was “playing games”. Later he described this as “cat ‘n mouse” to me. He said the HPCSA was trampling on Noakes’ rights by sending him from HPCSA pillar to post.
Ironically, Noakes’ legal team uncovered evidence of the committee’s irregular activities thanks to HPCSA’s own witness, legal officer Nkagisang Madube. Madube referred to a file containing emailed correspondence between Dhai and her committee in passing in his evidence. Thus, it became evidence which the HPCSA was obliged to “discover” (make available) to Noakes’ legal team.
Bhoopchand attempted to argue that away and prevent the file’s contents from staying on the record. He claimed the file had fallen into the defence’s hands “inadvertently”. He said it contained emails of a “private and personal nature”. Bhoopchand also accused Noakes’ legal team of breaching POPI (the Protection of Personal Information) Act by revealing the contents.
Van der Nest was having none of it. He said there was nothing inadvertent about HPCSA advocate Meshak Mapholisa’s agreement to hand over the file. He drew attention to the written record.
Van der Nest said there was nothing personal about the content of the emailed correspondence. All HPCSA committee members received copies. It was clearly in pursuance of the authors’ duties as committee members.
Van der Nest also said POPI was “no cover for abuse of power” by officials conducting public business.
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Van der Nest said POPI was “no cover for abuse of power” by officials conducting public business.
But just what did Dhai and Terblanche (Noakes’ medical colleague at UCT) in particular do that worries Noakes’ legal team? Lots, according to emailed correspondence between Pike and Mjamba-Mtshoba. It includes incriminating extracts from the contested file covering two main issues:
- The “manner in which the Fourth Preliminary Committee of Inquiry discharged its obligations; and
- The issues in dispute which form the subject matter of the hearing.
Unless you’re a lawyer, the legalese might not mean very much. Essentially, Van der Nest was saying Dhai involved herself in and interfered with Mapholisa’s preparations of the HPCSA’s case. That was beyond her remit.
For example, she instructed Mapholisa to appoint senior counsel. She told him to postpone the June 2015 hearing to be “better” prepared. Dhai refused to give Mapholisa reasons for her committee’s decision to charge. Her reason for doing so could not have been stranger: She said it because Mapholisa had not met her demand that he appoint senior counsel. Quite why she expected to be able to instruct Mapholisa in that fashion is anyone’s guess. Dhai isn’t talking.
If you are a lawyer, you will know why this conduct looks a little dodgy and very cat ‘n mouse.
After all, Van der Nest said, the committee’s job was complete on September 10, 2014. It had established the “point of inquiry” – the legal term for the essence of the charge against Noakes. Dhai and her team should have patted themselves on the back for a job well done. They should hung up their HPCSA hats and returned to their day jobs in academic medicine.
Instead, they displayed what from Noakes’ legal team’s perspective looks suspiciously like disproportionate dedication to ensure that he was charged and found guilty. That raises red flags legally and ethically even if you aren’t much of a Noakes fan.
Another example: in an email Terblanche shows what can look like initiative. He says he asked UCT colleague Prof Wim de Villiers to be an expert witness against Noakes.
De Villiers, now Rector and Vice-Chancellor of Stellenbosch University, was head of UCT’s Faculty of Health Sciences at the time. He was the first signatory of a letter UCT academics sent on August 22, 2014 to the media. That was a move unprecedented in the university’s history.
The letter’s authors, including UCT nutrition academic associate professor Marjanne Senekal , attacked Noakes for making “outrageous unproven claims about disease prevention”. In the end, the HPCSA did not call De Villers as a witness. He isn’t saying. I’m told he declined. Wise move, I’d say.
Senekal is now a consultant to the HPCSA legal team to prepare for when the hearing resumes in October. She is keeping resolutely silent, other than to say through Wits Vice Chancellor Adam Habib that she “denies any wrongdoing”. But then, I’d also deny that, if I were her.
Terblanche suggests in an email that the UCT academics’ letter, which he copied and made available to the Preliminary Committee in August 2014, be included as evidence against Noakes. All of this is behaviour beyond his remit.
What is also puzzling is why the Fourth Preliminary Inquiry Committee had to meet twice before charging Noakes. Once usually suffices.
At its first meeting on May 22 , 2014 , the committee took two days to consider the original complaint Johannesburg dietitian Claire Julsing Strydom laid against Noakes and his response. Strydom was president of the Association for Dietetics in SA (ADSA) at the time. The committee apparently felt it did not have enough to be able to charge Noakes. It set a date for a second meeting in September 2014.
It had every right to seek further documentation before charging a fellow doctor with unprofessional conduct. After all, unprofessional conduct is a serious charge usually reserved for doctors who are fraudsters, sexual molesters or murderers.
However, a timeline suggests why the committee did not have enough evidence to pin a charge on Noakes in May 2014. It shows why the committee had what it needed to nail Noakes the second time on September 10, 2014.
After the committee’s first meeting in May 2014:
- The committee procured the secret report from retired NorthWest University nutrition professor Este Vorster (who later gave expert testimony against Noakes). In it, she refers to a draft press release relating to an upcoming review and meta-analysis. As a result, this analysis supposedly shows that Noakes’ views on nutrition are incorrect;
- The medical journal PLOS (Public Library of Science) ONE published a systematic review and meta-analysis of the evidence for low-carb diets in July 2014 now known as The Stellenbosch Review. The researchers are from Stellenbosch and UCT: Celeste Naude, Marjanne Senekal, Jimmy Volmink and others;
- ADSA, the Nutrition Society of South Africa, the Heart and Stroke Foundation, Chronic Disease Initiative for Africa and the HPCSA Professional Board for Dietetics and Nutrition release an unembargoed joint press statement on the meta-analysis on July 9, 2014; and
- The UCT Faculty of Health Sciences released the academics’ letter attacking Noakes on August 22, 2014.
Institutions that collaborated on the “Stellenbosch Review” include UCT, Stellenbosch University, the Medical Research Council and the Effective Health Care Research Consortium. Armed with this ammunition, the preliminary committee charged Noakes on September 10, 2014 .
All that evidence falling into Dhai’s lap could just have been good luck. However, given the conduct of the HPCSA so far, it could signal something a little more co-ordinated. And while it could just be coincidence, the timing of the UCT letter is also little too convenient for the HPCSA’s case.
The HPCSA only gave Noakes notice of the charge three months later. Therefore, it had a three-month head start. Despite that, the HPCSA’s case hasn’t exactly seemed like a slam-dunk.
Noakes’ legal team has concerns at the influence of UCT and Stellenbosch academics on the conduct of the HPCSA Fourth Preliminary Committee Inquiry. Van der Nest has alluded to possible involvement of the South African Medical Association (SAMA) in the prosecution of Noakes. Dhai and Terblanche have held leadership positions in SAMA and White is its current president.
That concern can seem reasonable, given SAMA’s demonstrated antagonism to LCHF. SAMA attempted to withdraw CPD accreditation from speakers at the Old Mutual Health Convention that focused on the science behind low-carb, high-fat in February 2015. That was after requests from ADSA dietitians. However, after terse correspondence with Pike, SAMA sensibly reinstated the CPD points.
Bhoopchand, as expected, has dismissed any suggestion of SAMA involvement or untoward involvement of anyone at all.
Adams will give her ruling when the hearing resumes on February 9.
- All doctors and professors named in this report have right of reply. All contacted so far have not taken it up
- Main image of Prof Tim Noakes. Picture: ROB TATE