By Marika Sboros
The Health Professions Council of South Africa (HPCSA) is back on the warpath against Prof Tim Noakes. It is appealing its own committee’s comprehensive not guilty verdict for Noakes in April 2017 on a charge of unprofessional conduct.
It will hold the appeal at its Pretoria offices from February 21 to 23, 2018.
The HPCSA claims that its Professional Conduct Committee “erred and misdirected themselves on the law and facts”.
It has objected to a request by Noakes’s lawyers to introduce incriminating new evidence. The evidence supports extensive evidence already on record suggesting that dietitians from the Association for Dietetics in South Africa (ADSA) really did set him up. And they had help from inside the HPCSA.
The new evidence shows up in a PAIA (Protection of Access to Information Act) request. Instructing attorney, Adam Pike, of Pike Law, made the request to ADSA in June 2017.
Noakes’s legal team has filed a cross-appeal going for costs. They say that the HPCSA went after Noakes illegally. It had no sustainable case from the outset.
ADSA’s current president, Nicole Lubasinski, initially refused Pike’s PAIA request. She only acceded after Pike informed her of ADSA’s legal duty to do so. And after he pointed to her failure to observe the obligations that the statute imposes.
PAIA documents reveal email communication between HPCSA Dietetics Board chair Prof Edelweiss Wentzel-Viljoen and ADSA president Claire Julsing Strydom. Strydom’s successor as president, Maryke Gallagher joins in.
The subject is concern about Noakes and his supporters’ views on low-carb, high-fat (LCHF) diets. And criticisms that LCHF supporters directed to dieticians generally. (Click here to read the “real beef” ADSA has with Noakes.)
Crucially, Wentzel-Viljoen, Strydom and Gallagher communicate before Noakes’s tweet on February 4, 2014. This suggests that the HPCSA and ADSA colluded even before Strydom set off the case by reporting him on February 6.
In one email, Strydom appeals to Wentzel-Viljoen for help to fight Noakes and his opinions on LCHF. Wentzel-Viljoen assures Strydom that the HPCSA “has a plan” for Noakes but cannot divulge details at that stage.
So far, the HPCSA has dragged the case on for more than four years. Conservatively, it has spent more than R10million after hiring an expensive team of external lawyers midway. It funds the case from registration fees that doctors pay annually to be allowed to practise.
The appeal will significantly increase the costs.
Noakes has also incurred high costs. These would have been much higher had his counsel, Michael van der Nest (SC) and Dr Ravin “Rocky” Ramdass, not offered their services for free (pro bono) from the start.
Cross-appeal – Noakes lawyers go for costs
In their cross-appeal, Noakes’s lawyers are going for costs even though HPCSA rules do not allow cost awards.
They say that the HPCSA Professional Conduct Committee correctly dismissed all the charges against Noakes. Committee chair, Pretoria advocate Joan Adams, read a 60-page ruling the four-one majority decision in Cape Town on April 21, 2017. However, the committee did not consider that the HPCSA never had a sustainable case against Noakes from the start.
In particular, for purposes of awarding costs, the committee failed to consider Noakes’s unanswered evidence of the HPCSA’s Preliminary Inquiry Committee’s “irregular, unfair and biased conduct”.
The appeal from both sides places the spotlight back on the Preliminary Inquiry Committee’s conduct. It’s a spotlight that committee chair Prof Amaboo “Ames” Dhai might not relish.
Dhai is head of medical bioethics at the University of the Witwatersrand. She was, therefore, uniquely placed to innoculate Noakes against prosecution. Instead, as evidence on the record at the hearing shows, Dhai and committee member Prof John Terblanche chose to inject lifeblood into the HPCSA’s case against him.
They indulged in what Van der Nest diplomatically described in closing argument as “highly irregular conduct“. Both bent over backwards to ensure not just that the HPCSA charged Noakes but that its chances of a guilty verdict were high.
Interestingly, Noakes’s legal team came across that evidence quite by chance in a file of documents during the hearing. That file became evidence on the record.
It shows that Dhai and Terblanche went beyond their remit on the Preliminary Inquiry Committee. And they showed bias against Noakes from the start.
Use of secret reports
For example, Dhai also commissioned a report from North-West University Hester “Este” Vorster on LCHF. Inexplicably, she kept Vorster’s report secret from Noakes.
She did not give him the opportunity to respond to Vorster’s adverse findings before using the report to charge him. This breached the audi alteram partem principle (That’s Latin for “hear the other side”). It also breached his fundamental right to a fair trial. To date, Dhai has not explained her omission.
The charge as Dhai and her committee later formulated it, was “born of an unlawful, irregular, unfair and biased process”, the cross-appeal states. Therefore, the Professional Conduct Committee erred in not considering that the charge had “no lawful foundation and was not legally justified”.
Therefore, they should have awarded costs to compensate for costs Noakes incurred in having to defend himself against unlawful charges.
In supporting their request to introduce the new evidence, Noakes’s lawyers refer specifically to evidence on the record on Wentzel-Viljoen’s conduct. In the weeks leading up to the first hearing against him in June 2015, for example, the HPCSA unlawfully appointed her on the Professional Conduct Committee.
However, she was an ADSA member and her well-documented anti-Noakes, anti-LCHF views were in the public domain.
The HPCSA refused written requests from Noakes’s legal team to remove Wentzel-Viljoen from the panel. Grounds that included a reasonable apprehension of bias. It took correspondence directly to her before she recused herself.
Moving trial ‘goalposts’
The HPCSA tried to replace Wentzel-Viljoen with another ADSA member, Prof Renee Blaauw. Blaauw is also on record expressing opposition to Noakes and LCHF. After objections from Noakes’s lawyers, Blaauw too had to step down.
The HPCSA also would have known that it breached its own rules trying to load the committee with dietitians. Its rules state that all health professionals facing complaints have the right to be judged by their peers.
Noakes is also a medical doctor registered with the HPCSA as GP, although he has not practised clinical medicine for more than 17 years. Thus, only his fellow GPs can judge him. Neither Wentzel-Viljoen nor Blaauw are his peers.
In their appeal, the HPCSA’s lawyers have resorted to rehashing the arguments that lost the case for them.
These include that Noakes had a doctor-patient relationship with the breastfeeding mother on Twitter; that the information he tweeted was “unconventional” advice; that it was not evidence-based; that it conflicted with South Africa’s dietary guidelines; and that it was “dangerous”. (Strydom claimed it was “life-threatening”.)
Most of these elements aren’t in the original charge as Dhai and her committee formulated it.
Thus, the HPCSA continues a tendency Van der Nest identified in closing arguments last year. It “changed tack” and “moved the goalposts” whenever it failed to prove an essential element of its case. Which was often.
This prejudiced Noakes, his lawyers say. It also breached his fundamental rights to freedom of expression and a fair trial.
Where was the ‘danger’?
Yet all HPCSA’s witnesses conceded under cross-examination that LCHF “aligns closely” with South Africa’s paediatric and adult dietary guidelines. That includes Vorster who authored the guidelines. And North-West University professor Herculina Salome Kruger who said that LCHF is “not dangerous”.
In their cross-appeal, Noakes’s lawyers have had to rehash their arguments. They say there was no harmful conduct of any kind on Noakes’s part. Nor was there even a victim. He gave information not medical advice on Twitter. There was no doctor-patient relationship, as even the HPCSA’s own evidence shows.
He was participating in a general, public discussion as an author and a scientist, not a doctor.
The original charge mentions social media but not as a relevant legal issue when read properly. For that, the Preliminary Inquiry Committee should have added a separate statement to the charge of “unconventional advice”. It should have read: “AND you gave it on social media”.
The same applies when HPCSA later amended the charge by adding the word Twitter – breaching its own rules. Noakes’s lawyers say it should have added “AND you gave that unconventional advice on Twitter”.
Sensational ‘own goal’
The HPCSA scored a sensational own goal adding Twitter to the charge (in breach of its own rules). It freely admits that it has no rules for doctors’ conduct on social media.
Thus, there can be no suggestion of Noakes’s unprofessional conduct.
The HPCSA also contradicts itself again by trying to dismiss the scientific evidence Noakes and his experts gave on grounds of irrelevance. They say that’s because the evidence was on adult, not infant, nutrition. Yet Vorster’s report and all HPCSA witnesses’ evidence was on adult nutrition only.
Noakes’s lawyers have pointed to the contradiction in charging Noakes with giving unconventional “advice” then dismissing all his evidence showing that the advice is not unconventional.
The appeal also returns the spotlights to the controversial study the HPCSA used to build its whole case against Noakes. It is the Stellenbosch Review (aka Naudé Review after lead author Dr Celeste Naudé). It is on adult nutrition only.
Evidence on the record suggests that the Stellenbosch Review is terminally flawed. Evidence also suggests that the Universities of Cape Town and Stellenbosch researchers cobbled it together to discredit Noakes and LCHF.
(Editor’s note: Noakes and I are co-authors of Lore of Nutrition. In it, we document the case so far and all the evidence.)
Therefore, Noakes’s lawyers claim in cross-appeal, the case against Noakes was never about Twitter or his conduct as a doctor. It was only ever about the science for low-carb, high-fat (LCHF). And the HPCSA and ADSA wanted to restrict his right to freedom of expression because they disagreed with his scientific views.
They say that Adams and her committee failed to consider that his tweet was just a pretext. And that disgruntled, heavily conflicted health professionals instigated the case against him on a whim. The spotlight also returns to the conduct of UCT nutrition professor Marjanne Senekal. Senekal was a colleague of Noakes when she became a consultant to the HPCSA against him in 2015.
Who will win this time round?
The HPCSA believes that there is “a reasonable prospect” that the Appeal Committee will “come to different conclusions on the law, the application of the law and the evaluation of the evidence as it relates to the charge”.
It, therefore, also believes that there is a “reasonable prospect” that the Appeal Committee will find Noakes guilty.
That assumption may be correct, given that the HPCSA acts as judge and jury – and executioner – in this case. And given the ferocity of its prosecution of Noakes so far.
Who sits in judgment?
Some have expressed concerns on social media that the HPCSA has carefully selected a committee that will give them the verdict they want this time round. That can reflect unfairly on the integrity of the Appeal Committee as currently constituted.
The chair is advocate Justice M Mogotsi who has been an acting magistrate. Two Gauteng medical doctors are on the committee: Dr Maruma (Bobby) Ramasia, a former Principal Executive Officer of Bonitas, and Dr Evelyn Lulama Appie.
Initially, the HPCSA appointed advocate Tebogo Mafafo as the community representative.
In a 2011 judgment (Per Mafafo v Minister of Justice and Constitutional Development), a court held that “(Mafafo) could not be admitted as a attorney (sic) simply because the Law Society of Northern Province opposed her application for admission on the strength of the submissions made by the said Chief Magistrate that she was not a fit an (sic) proper person to be admitted as an attorney. Despite opposition from the said Law Society, she was ultimately admitted.”
Wisely, the HPCSA has replaced Mafafo with advocate Xoliswa Brenda Bacela. She is also an HPCSA council member and has been an acting judge. Section 10 of the Health Professions Act makes provision for her to sit on the appeal committee.
Who will win this time?
As in all HPCSA hearings, a verdict requires a majority decision. And rules don’t give the chair a casting vote. That raises interesting legal challenges should deadlock arise in a 2-2 vote.
If 50% of members of an Appeal Committee decide that the HPCSA has not discharged its onus of proof on a balance of probabilities, it makes sense that they must give Noakes the benefit of the doubt.
But little about this case has ever made much sense. It’s why the public dubbed it the Nutrition Trial of the 21st Century.
The HPCSA will be aware that if the appeal verdict goes against Noakes, he will seek redress in the High Court.
Of course, there are no guarantees in court cases. However, extensive unchallenged evidence led to Noakes’s acquittal. And the probity of South Africa’s judicial system makes it highly likely that he will prevail.