By Marika Sboros
A South African news agency has published an anonymous article about scientist Tim Noakes. The headline: What will happen to Noakes if he really is found guilty? (Emphasis theirs.)
Health24 refers, of course, to the Health Professionals Council of South Africa (HPCSA) charge of unprofessional conduct against Noakes. It states that the HPCSA will “likely not be forgotten for erroneously reporting” that it had found Noakes guilty. It speculates on six penalties Noakes would face should the HPCSA find him guilty.
I’d say it raises another question: What will happen if Noakes really is found innocent? (Emphasis mine.) I speculate on five penalty areas facing the HPCSA and all those who have helped to prosecute Noakes. Read on and tell me what you think is more likely to be the case:
It’s common cause that the HPCSA hauled Noakes before its Professional Conduct Committee on an accusation of giving “unconventional advice” on social media. That was a single tweet in February 2014 telling a breastfeeding mother that good first foods for infant weaning are low-carb, high-fat (LCHF).
Johannesburg dietitian Claire Julsing Strydom immediately tweeted her “horror” and reported Noakes to the HPCSA a few hours later.
The rest, as “they” say, is history that rivals theatre of the absurd. Committee chair Pretoria advocate Joan Adams has adjourned the hearing to April 4, 2017, for legal argument. She will give her ruling on April 21, 2017.
The Health24 article covers some background to the hearing. However, the nub of its article appears to be Section 42 of the Health Professions Act. This provision relates to penalties that Noakes may face should the HPCSA find him guilty. One option that stands out among the six it mentions is that the HPCSA Committee may require Noakes to pay the costs of the proceedings.
Legal experts say this might be a difficult, if not impossible, penalty to impose. That’s given all the delays, time-wasting and objections from the “pro forma complainant” (HPCSA in this case).
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Strydom started out as the complainant. The HPCSA morphed that into the Association for Dietetics in SA (ADSA). Strydom was ADSA president at the time. The HPCSA made the change without consultation or agreement from Noakes. That’s a move legal experts say is legally questionable at best and at worst suggests bias in favour of ADSA.
Then there are the actions of HPCSA advocate Ajay Bhoopchand through the course of the hearing. Bhoopchand tried – and failed – to prevent Noakes from giving much of the evidence in his own defence. Adams intervened. She ruled that it didn’t make sense for the HPCSA to accuse Noakes of unprofessional conduct, then prevent him giving evidence to show the charge was baseless.
Many other peculiarities make the HPCSA look like it is conducting not so much a hearing but a vendetta against Noakes.
Firstly, the HPCSA wasted two days set aside for its first hearing in June 2015. That was because the HPCSA improperly constituted its own Professional Conduct Committee hearing the charge against Noakes.
According to its own rules, the committee must include two of Noakes’ peers of similar standing. Noakes happens to be a medical doctor and one of the few scientists in the world with an A1 rating for both nutrition and sports science. Thus, dietitians don’t count as his peers.
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That nicety escaped the HPCSA. You may recall that the HPCSA tried and failed to get North-West (formerly Potchefstroom) University dietetics professor Edelweiss Wentzel-Viljoen to sit on the Committee. Noakes’ attorney, Adam Pike, of Pike Law, objected in correspondence.
The initial objection was that Wentzel-Viljoen, apart from being a dietitian, was already on record expressing opinions opposed to Noakes and LCHF. Thus, this raised questions of bias. That idea also escaped the HPCSA.
Undeterred, the HPCSA appointed Stellenbosch University dietetics professor René Blaauw in Wentzel-Viljoen’s place. It sent Pike Law a resolution appointing Blaauw. That wasn’t such a smart move because Pike’s legal eagle eye immediately spotted something odd.
The HPCSA had passed and signed the resolution appointing Blaauw on exactly the same date as a resolution previously sent to him appointing Wentzel-Viljoen.
Not surprisingly, Pike “smelt a fish”. In his words: “It seemed impossible that (HPCSA’s) Medical and Dental board appoints a panel, one with Blaauw and the other with Wentzel-Viljoen, on the same day.”
At that point, Pike and Noakes’ advocates, Michael Van der Nest SC and Dr Ravin “Rocky” Ramdass, took a closer look at the regulations in terms of which the HPCSA appointed the panel. HPCSA eventually conceded that it had improperly appointed the panel. Adams postponed the hearing to November 2015.
When the hearing resumed, Noakes’ legal team applied for Canadian Prof Stephen Cunane to give evidence via video conference facilities. HPCSA objected. That wasted a day and a half.
The HPCSA then took an inordinate amount of time to lead its evidence. It took up the whole of the November 2015 hearing, leaving Noakes no time to give evidence. The HPCSA introduced a “surprise witness”, which its legal team at first refused to name – and wasted another whole day.
An exasperated Adams ruled that the interests of fairness required the HPCSA to name the witness, even if it did so by whispering quietly in the ears of Noakes and his legal “dream team”.
HPCSA advocate Meshak Mapholisa eventually did so with what I can only describe as “lang tande” – literally “long teeth”. That’s the Afrikaans expression for “very reluctantly” – Mapholisa named Stellenbosch university psychiatry professor Willie Pienaar.
When the hearing resumed in February 2016, Noakes’ legal team asked for a ruling requiring the HPCSA’s Preliminary Committee of Inquiry to give reasons for its charging Noakes.
You might think it is reasonable to assume the HPCSA had done the legal, never mind moral, thing in telling Noakes from the outset why it was prosecuting him. After all, South Africa is a democracy, not a police state. Its legal system observes internationally accepted principles of justice. But no, you’d be wrong.
Again, the HPCSA objected, forcing more time-wasting before Adams ruled against it on the grounds of fairness. It was only after Noakes took the stand that the hearing sped up. Adams adjourned the hearing until October 2016.
Who could forget the HPCSA’s immediate futile objections on the first day to Noakes calling experts as witnesses in his defence. The HPCSA wasted a day and a half objecting to British obesity expert Dr Zoë Harcombe and US investigative journalist Nina Teicholz. This, despite the fact that Noakes gave adequate notice, and submitted all the evidence properly and timeously. As well, Adams and her committee had already found in the HPCSA’s favour when it introduced its own “surprise and secret witness” at the very last minute.
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In all, the disciplinary committee sat for 23 days. In that period, the HPCSA wasted nearly six days with objections that had no merit or prospect of success of any kind. That can either be seen as deliberate time-wasting or incompetence on the part of the HPCSA legal team.
So here is the question: What will happen if Noakes is found to be innocent? Specifically, what will happen to:
- Claire Julsing Strydom and ADSA regarding what they tried – and failed – to claim was only a “query”, not an actual complaint? Semantics aside, some legal experts say Strydom’s action was both frivolous and vexatious;
- University of the Witwatersrand ethics professor Ames Dhai and UCT emeritus professor John Terblanche? Evidence before the HPCSA shows that both, in their prosecutorial zeal against Noakes, overstepped their remit and powers as members of its Preliminary Committee of Inquiry;
- The authors of the so-called “UCT letter” addressed to the Cape Times on 22 August 2014? Members of Preliminary Committee of Inquiry appear to have used it as a “smoking gun” in pressing ahead with the decision to charge Noakes; Signatories of the letter include Stellenbosch University’s current vice chancellor Dr Wim de Villiers, and Dr Marjanne Senekal, head of UCT’s nutrition department. Senekal is now also a consultant to the HPCSA against Noakes;
- Retired North-West University professor Hester “Este” Vorster, author of the secret report which Dhai commissioned. Evidence before the hearing shows that the Preliminary Committee of Inquiry used the report to reach a decision to prosecute Noakes. Noakes’ expert witnesses effectively discredited the science on which Vorster based her report; and last but not least,
- The HPCSA: will it have to contribute to the costs of the hearing? That’s not so far-fetched legally or ethically, say legal experts. That’s since each of the people mentioned here has contributed to the extraordinary waste of time, energy and money in this Kafkaesque disciplinary hearing.
And finally, there’s the lingering issue of libel. Evidence is mounting that Noakes will have every right to sue for defamation for damage to his reputation internationally from vexatious and slanderous attacks. Whether or not he chooses to exercise that right is anyone’s guess.