By Marika Sboros
How did a dietitian with a business to protect get the might of a South African state body to prosecute world-renowned scientist Prof Tim Noakes? That question is hanging in the ether.
The Health Profession’s Council of South Africa (HPCSA) has appealed its committee’s comprehensive not-guilty verdict for Noakes. The appeal concluded in Pretoria on February 23, 2018. Appeal Committee chair, advocate Justice Mogotsi, will rule before the end of March.
The HPCSA charged Noakes with unprofessional conduct for a single tweet on February 4, 2014. He tweeted that good first foods for infants are LCHF (low-carb, high-fat). Johannesburg dietitian Claire Julsing Strydom reported Noakes to the HPCSA. She claimed that the tweet was potentially “life-threatening”.
The answer to how Strydom persuaded the HPCSA to go after Noakes on that basis is easy to find – if you know where to look. Why she succeeded is more complex – but not impossible to work out. The answer lies partly in voluminous, unanswered evidence that the appeal committee must review.
It shows that Strydom had help from academics at top South African universities: Cape Town, Stellenbosch and the Witwatersrand. She also had help from academics at a minor institution, North-West (formerly Potchefstroom) University.
The evidence also suggests, as Noakes’s lawyers successfully argued in closing, that Strydom was just a vexatious, “disgruntled” dietitian. They also argued that the HPCSA had no sustainable case against him from the start.
But the answer also lies in evidence the Appeal Committee cannot review because Noakes’s instructing attorney, Adam Pike, only uncovered it after the not-guilty verdict. And increasingly, it lies in evidence of academic “mobsters” behind Strydom.
The evidence Pike uncovered reveals that Strydom had inside help. She had a “deep throat” in the HPCSA: Dietetics Board head North-West nutrition professor Edelweiss Wentzel-Viljoen.
That showed up in a PAIA (Promotion of Access to Information Act) request Pike made to the Association for Dietetics in South Africa (ADSA) in June 2017. Strydom was ADSA president when she reported Noakes.
PAIA documents yielded an email chain between Wentzel-Viljoen (an ADSA member), Strydom and ADSA dietitian, Maryke Gallagher. Strydom and Gallagher appealed to Wentzel-Viljoen in her capacity as HPCSA board member for help with the “Tim Noakes problem”.
Crucially, Wentzel-Viljoen communicates with them before Noakes’s February 2014 tweet. In a later email, she reassures Strydom and Gallagher that the HPCSA “has a plan” for Noakes. That adds to support for the theory that dietitians set him up from the start.
Interestingly, North West University has refused access to records that Pike has requested.
Strydom just a ‘disgruntled dietitian’?
Advocate Michael van der Nest (SC) for Noakes, has argued that Strydom was “disgruntled” because the public was listening more to Noakes than to her. As a result, she was losing business, he said.
Thus, the case against Noakes was a “turf war”. And Strydom used his tweet as a pretext to get the HPCSA to stop him encroaching on ADSA “territory”.
Advocate Dr Ravin “Rocky Ramdass” also demolished Strydom’s claim that Noakes’s tweet was dangerous as it was not evidence-based.
Ramdass argued that the voluminous scientific evidence Noakes presented was robust. It showed that LCHF was evidence-based
The HPCSA has appealed on the basis that its Professional Conduct Committee erred in matters of law and facts. Noakes’s lawyers have filed a cross-appeal on the question of costs.
They have argued that the case has dragged on for more than four years. And the financial – and emotional – cost for Noakes has been high.
Conservative estimates put the HPCSA’s cost alone at R10 million before the appeal. Noakes’s costs would have been as high had Van der Nest and Ramdass not worked pro bono from the outset.
The appeal will add to costs on both sides.
HPCSA’s ‘bad behaviour’
Van der Nest has argued that the HPCSA has acted in bad faith throughout. Noakes is entitled to costs for having to defend himself against an action that had no merit, he said. He also argued that as the HPCSA is a statutory body, it enjoys no protection from the law for its bad behaviour.
That bad behaviour begins but does not end with Wentzel-Viljoen, Pike says.
He explains that HPCSA breached its own rules by trying to appoint Wentzel-Viljoen onto its Professional Conduct Committee that heard the charge against Noakes. Noakes is registered with the HPCSA as a medical doctor. HPCSA rules say that peers much judge health professionals. Dietitians are not Noakes’s peers.
Wentzel-Viljoen’s very public opposition to Noakes and LCHF was also problematic. It meant that she was unlikely to be unbiased.
Wentzel-Viljoen refused Pike’s written request to recuse herself. She only agreed to stand down after he insisted.
The HPCSA tried to appoint another dietitian opposed to Noakes and LCHF, Stellenbosch University nutrition professor Renee Blaauw onto the committee. Blaauw only stepped down after vigorous objections from Noakes’s lawyers.
The appeal has placed the spotlight squarely back on another source of “bad behaviour”: the HPCSA’s Preliminary Inquiry Committee.
‘Highly irregular, unfair, biased conduct’
Committee chair was Prof Amaboo “Ames” Dhai, head of medical bioethics at the University of the Witwatersrand. In their cross-appeal, Noakes’s lawyers say there is unanswered evidence of the committee’s “highly irregular unfair and biased conduct”.
That evidence fell into the laps of Noakes’s legal team quite by chance in 2015. It was in a file that an HPCSA witness referred to in evidence during the hearing. It turned out that the HPCSA’s prosecution team had not made the contents of the file available to the defence.
In legal parlance, it did not “discover” the file to the defence team. And for good reason, as it turned out. Emailed correspondence between Dhai and Terblanche shows them going far beyond their remit. Both also demonstrate bias against Noakes
The appeal process also puts the spotlight back on the HPCSA’s use of secret reports to charge health professionals.
Dhai commissioned a report from North-West University nutrition professor Hester “Este” Vorster on LCHF. It is highly critical of Noakes and LHCF. Inexplicably, Dhai kept Vorster’s report secret from Noakes. She did not give him the opportunity to respond to Vorster’s adverse findings.
Instead, she used the report to make the committee’s decision that the HPCSA should charge him. This breached the audi alteram partem principle (That’s Latin for “hear the other side”), as Noakes’s lawyers pointed out. It also breached his fundamental right to a fair trial.
‘The spell’ of UCT Faculty of Health Sciences
To date, Dhai has not offered any explanation for that omission.
Van der Nest also argued in cross-appeal that the Preliminary Inquiry Committee “fell under the spell and improper influence” of UCT’s Faculty of Health Sciences. In doing so, the committee “exceeded its powers and failed to act impartially”.
A member of that faculty is Prof Marjanne Senekal, also an ADSA member. Senekal became a consultant and advisor to the HPCSA in late 2015. That was after it became clear that its case was in terminal decline.
Senekal is one of four authors of the 2014 “UCT Academics Letter” which the Cape Times published in 2014. The letter is highly critical of Noakes and suggests that his views on LCHF are dangerous. There was precedent for that letter.
In 2012, UCT cardiology colleagues of Noakes wrote an open letter to the press. They also suggested that Noakes’s LCHF views as they relate to heart disease are dangerous.
All these academics did so without bothering to speak to Noakes first and give him a chance to respond to their serious claims.
Van der Nest argued in cross-appeal that the charge against Noakes was “born of an unlawful, irregular, unfair and biased process”. Noakes is legally entitled to compensation for costs incurred in having to defend himself against unlawful charges, he said.
Thus, the Professional Conduct Committee erred in not considering the absence of lawful foundation or justification for the charge against him.
Was Noakes ‘mobbed’?
But that has raised an arguably far more sinister reason for Strydom’s ease path to persuading the HPCSA to go after him. It may lie in the dark art of “academic mobbing”, also known as academic bullying.
Academic mobbing is not restricted to South Africa’s top universities. It is a global phenomenon. And the consequences can be nothing short of tragic, as the 1992 Canadian case of neurology and neurosurgery professor Justine Sergent at McGill University demonstrates.
In a report in Quillette, an influential website that offers a much-needed “platform for free thought”, Brad Cran tells Sergent’s shocking story. And he does so, not surprisingly, with poetic poignancy and power. Cran was Vancouver’s poet laureate from 2009 to 2011.
His report is headlined The Academic Mob and Its Fatal Toll. He documents how it led both Sergent and her husband to commit suicide in 1994. They were found seated next to each other in their car, dead from carbon monoxide poisoning.
Cran quotes University of Waterloo professor emeritus of sociology Kenneth Westhues, an internationally recognised authority on academic mobbing. Westhues defines it as:
“[A]n impassioned, collective campaign by co-workers to exclude, punish, and humiliate a targeted worker. Initiated most often by a person in a position of power or influence, mobbing is a desperate urge to crush and eliminate the target.
“The urge travels through the workplace like a virus, infecting one person after another. The target comes to be viewed as absolutely abhorrent, with no redeeming qualities, outside the circle of acceptance and respectability, deserving only of contempt.
“As the campaign proceeds, a steadily larger range of hostile ploys and communications comes to be seen as legitimate.”
Why the ferocity of the HPCSA’s prosecution?
Cran cites other examples of academic mobbing. One victim calls for a focus to shift from looking for the “bad guys”. The focus should be on the group psychology that leads “otherwise good people to inhumanely attack another person without terms or limits”.
Noakes has often described his colleagues’ gratuitous attacks as “lacking in humanity and compassion”.
That’s backed up by what his lawyers have described as the “ferocity” with which the HPCSA has prosecuted Noakes. And despite being unable to prove any harmful conduct of any kind on Noakes’s part.
The HPCSA has also not proven any harm or even the potential for harm to anyone from his tweet.
Noakes’s lawyers have argued successfully that he did not act as a medical doctor in his tweet. He also did not have a doctor-patient relationship with breastfeeding mother Pippa Leenstra on Twitter. He was participating in a general discussion on Twitter. And his tweet was clearly information, not medical “advice”, as Strydom alleged.
Click here to read: Did SA, UK scientists do something dodgy to nail Noakes?
And there wasn’t even a victim in this case – a curious fact that led Appeal Chair Mogotsi to comment. He noted Leenstra’s absence as the putative victim in this case.
He also noted Leenstra’s comment in a reply tweet to Noakes, Strydom and paediatric dietitian Marlene Ellmer. “Too much conflicting information,” Leenstra said. Not advice.
Was it just ‘legitimate debate’?
Van der Nest said that case boils down to nothing more than “legitimate debate”. Strydom has an opinion that LCHF is bad and Noakes that LCHF is good, he said. That raises thorny questions:
Strydom is a dietitian, not a paediatrician, a neonatal specialist or a scientist, he said. Noakes is a professor and scientist with an A1 rating from the National Research Foundation. That rating is for both his original research in both exercise science and nutrition.
None of the three North-West University “expert” witnesses the HPCSA mustered against him matched his scientific rating. Among those were Vorster who has a B1 rating, Prof Salome Kruger who has a C1 rating and Dr Ali Dhansay, who has no rating at all.
Strydom and the dieticians are entitled to their opposing view just as Noakes is to his view, Van der Nest argued. Strydom is also entitled to be wrong, he said. But raises even more disturbing questions.
“What if (Noakes) is right scientifically and she is wrong? What gives her the right to express her view that LCHF is dangerous for breastfeeding and assume she is correct?
“Why can she use social media to express her view with impunity and publicly but he cannot?”
Just as importantly, why did the HPCSA charge and prosecute Noakes but not Strydom?
“Who says that she is entitled to have the machinery of the state prosecuting him because he thinks he right?”
If the Appeal Committee finds against Noakes, his lawyers say that he will go to the High Court. That will mean more costs for both sides. However, his lawyers believe that the likelihood of success in South Africa’s justice system is high.
That also increases the likelihood that Noakes will succeed in a cost application.
Those close to Noakes say that he can probably count himself lucky that he survived academic bullying relatively unscathed. They say that’s due in no small part to the support he has received from his family. Noakes also credits his legal team with helping him survive.
He also says that his primary motivation in fighting this case is not about money: “I just want to stop the HPCSA from doing this to anyone else.”
And this time, the world is watching the outcome of this strange scientific saga.
Click here to read: Teicholz: how food industry influences dietary advice
Before the February appeal, a group of independent doctors in the US launched a petition calling on HPCSA to stop prosecuting Noakes. Before a week was up, more than 31,000 of the world’s leading doctors, scientists, dietitians and others had signed. At last count, there were more than 40,000 signatures.
One signatory is Harvard physician and nutrition professor Walter Willett. Willett is no fan of low-carb, high-fat (LCHF) diets. However, Willet believes in the right of scientists right to express opinions that differ from his.
“It is troublesome to hear that Tim is being attacked so strongly for what seems to be a trivial matter,” Willett said. There are “plenty of real problems in health care and our world more broadly”.
Who’s guilty of ‘unprofessional conduct’?
German physician Dr Johannes Scholl agrees. He also says that a similar case against a medical doctor could never happen in Germany.
Scholl sees no “hint of professional misconduct with respect to Tim´s original tweet”. Instead, he sees the right to freedom of speech. Scholl also sees “the desperate attempts of traditionalists, supported by sugar lobbyists, to defend an outdated paradigm of dietary fat reduction”.
It is “absolutely clear”, says Scholl, that these old dietary guidelines have not just contributed to but probably caused the global epidemic of obesity and diabetes.
He is scathing of those who are unwilling “because of their prejudices or their respective conflicts of interest” to accept new research findings like the recent VIRTA Health´s one-year study. The study shows that LCHF is, in fact, safe and effective to reverse type 2 diabetes.
Scholl says that those who oppose such evidence are “in my opinion, guilty of professional misconduct”.
All that remains to be seen is if the academic “mobsters” will prevail in getting the HPCSA Appeal Committee to silence Noakes. And how the country’s justice system will react if they do.