Noakes ‘energised, elated’ as HPCSA goes after him again

Tim Noakes
Tim Noakes. Picture courtesy of the Noakes Foundation
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By Marika Sboros

The Health Professions Council of SA (HPCSA) has announced an appeal against its own committee’s not guilty verdict for Prof Tim Noakes. His lawyers are up for the fight ahead. Noakes has declared himself “strangely elated”.

He believes that the appeal will reveal much about which the South African public “would otherwise have remained ignorant”.

Of course, an appeal was always on the cards. The HPCSA has automatic right of appeal. However, even die-hard opponents of Noakes see it as vindictive. They say that it may come back to haunt the HPCSA.  And the lone, “horrified” Johannesburg dietitian who started the case against him.

It is also likely to haunt her organisation, the Association for Dietetics in SA (ADSA). And the many other dietitians, doctors and assorted academics involved in ongoing prosecution of Noakes.

All over a single tweet in which Noakes said that good first foods for infants are LCHF.

‘World-first persecution’

Noakes’ jubilant legal team: (l to r) Adam Pike of Pike Law, Dr Ravin ‘Rocky’ Ramdass and Michael van der Nest (SC).

On Noakes’ legal team are instructing attorney Adam Pike, of Pike Law, advocate Michael van der Nest (SC) and advocate Dr Ravin “Rocky” Ramdass. Van der Nest has called the case a “world-first persecution” of a scientist for his opinions on nutrition. The appeal lends credence to that claim.

It also feeds ongoing claims of vested interests behind the HPCSA’s bid to silence Noakes on low-carb, high-fat (LCHF).

The hearing has lasted more than three years and cost  millions of rands. The appeal will increase those costs. Noakes’  lawyers see that as “more waste of everyone’s time and money”. Van der Nest and Ramdass have worked pro bono on the case from the outset. They have stated that the pro bono status will not change.

There are concerns that the HPCSA could load the appeal committee to get the verdict it wants this time round. It wouldn’t be the first time that the HPCSA has itself riddled with corruption.

Van der Nest argued in closing that the HPCSA marked its prosecution of him from inception, by “gross unfairness, double standards, and hypocrisy”.  And that there was “a complete lack of merit” from the outset.

Advocate Joan Adams

Thus, there is now a global spotlight on the HPCSA’s lawyers. Already, a Cape Town medical doctor has launched a petition to persuade the HPCSA to drop the appeal.

In the first ruling, committee chair Pretoria advocate Joan Adams was only relatively restrained in dismissing the HPCSA’s case against Noakes. She said that the HPCSA had failed to prove all three pillars of the charge against him.

The evidence showed that Noakes did not have a doctor-patient relationship on Twitter. His tweet was also – and clearly – information, not medical advice and was evidence-based, Adams said.

Therefore, his tweet was not unconventional, dangerous or life-threatening, as the HPCSA had alleged.

Noakes’ lawyers have filed a cross-appeal going for costs. They say that Adams erred in not ruling on an award costs in her committee’s majority (four-to-one) verdict.

Who is behind the appeal?

Current ADSA president Maryke Gallager told me via email that ADSA was not behind the appeal. “We were surprised but as it is an HPCSA process, it is their decision,” she told me via email.

If that is true, it raises the question on who’s behalf the HPCSA’s legal team is appealing. Gallager is on record saying that ADSA “accepts the (not guilty) verdict”. I have asked HPCSA instructing attorney Katlego Mmuoe, of K M Mmuoe Attorneys, for clarification.

(Editor’s note, at time of publication, that clarification was not forthcoming.)

Noakes has always maintained that the case against him is a witch hunt. Doctors, dietitians, scientists, lawyers and more ordinary mortals who support Noakes globally agree. They have expressed outrage on social media. They greeted the HPCSA’s decision with derision as much as with disbelief and shock.

Medical doctors pay a significant fee to register with the HPCSA in order to be allowed to practice. They are also querying why the HPCSA is using their fees to go after him on spurious grounds.

Ironically, Noakes says that he would have gone “quietly into the night” after the not guilty verdict. He was looking forward to putting the case behind him, he says. He would also have overlooked the many injustices his lawyers identified in the HPCSA’s case against him.

Noakes would likely not have renewed his HPCSA registration as a medical doctor. Thus, the HPCSA would no longer be able to help dietitians try to muzzle him.

Now, Noakes says that all those involved in the case against him have woken sleeping legal giants. They have also “dug their own graves”.

Pike has indicated that the team will “vigorously pursue all injustices done to (Noakes) during this process”. “They will continue working on this case until we are jointly satisfied with the end result,” Noakes says.

Opening Pandora’s Box

He told journalist Adiel Ismail that he and his legal team see the case as “malicious prosecution and persecution”. And that the HPCSA’s appeal has opened a “Pandora’s box”.

His lawyers, therefore, will now actively pursue those who “acted inappropriately”.  They will also pursue options for recovery of all his costs from those involved in setting up and continuing the prosecution, he told Ismail.

“We will selectively pursue those issues, which we consider are the most rank,” Pike said.

He isn’t saying who those are but my guess is that one is the Johannesburg dietitian who started the case. Claire Julsing Strydom was ADSA president when she lodged her “horrified” complaint against Noakes.

Strydom has claimed that she did not collude with the HPCSA to ensure a charge against Noakes. An email chain of correspondence between her and the HPCSA suggests otherwise.  Lawyers for Strydom, Gallagher and ADSA will likely have explained the implications of that email chain to them.

Gallager will very likely also be another target now. Immediately after the not guilty verdict, she was on TV. She made it clear that while Noakes had won the battle, ADSA would continue its war against Noakes and LCHF. That may not have been strategic.

She (or ADSA) have issued ambiguous press statements. One suggested that ADSA had not made any complaint at all. Instead, ADSA claimed that it had only “sought clarity” from the HPCSA on doctors’ conduct on social media.

However, the HPCSA has no rules for doctors’ conduct on social media, as Adams ruled. Gallagher should have been aware of that.

As well, legal experts say that Strydom, Gallagher and ADSA may have shown one too many hallmarks of vexatious litigants.

Supporters of Noakes have speculated about who is really driving the HPCSA’s appeal. And if the HPCSA does not volunteer the answer, PAIA (Protection of Access to Information Act) applications could reveal all.

HPCSA consultant UCT Prof Marjanne Senekal and witness Dr Muhammad Ali Dhansay

The defence lawyers will now also likely look more closely at University of Cape Town nutrition academic Prof Marjanne Senekal. There are questions around Senekal’s conflicts of interest. And the professional appropriateness of becoming a consultant to the HPCSA against a colleague.

Senekal was a co-author of the public attack on Noakes in the “UCT Academics Letter” in 2014. His lawyers consider the letter defamatory. She was also a co-author of the controversial Naude Review. The HPCSA used both as the basis for its charge against Noakes.

UCT has yet to respond on the involvement of Senekal and all other UCT academics in the case against Noakes. Senekal and HPCSA witness Dr Muhammad Ali Dhansay also have links to the International Life Sciences Institute (ILSI). Dhansay’s employer, the Medical Research Council is investigating his links with sugar industries.

Click here to read: ILSI ‘QUEENPINS’ TRYING TO NAIL HIM

In their closing arguments, Van der Nest and Ramdass did a thorough demolition job of the case against Noakes. They took a little over 42,000 words to make their case.

HPCSA advocate Dr Ajay Bhoopchand took nearly three times as many  – at just over 104,000 words. He demonstrated a distinguishing characteristic of the way HPCSA had gone about prosecuting Noakes. Every time the HPCSA could not prove a pillar of its case against him – which was often – its legal team just “moved the goal posts”.

From alleging a doctor-patient relationship, Bhoopchand claimed that the HPCSA did not have to prove the relationship.  And when the HPCSA failed to prove any harm, Bhoopchand argued that the HPCSA did not have to prove harm, just the potential.

Van der Nest has a last word:

“Ultimately, the prosecution amounts to impermissible censorship and an attempt of the worst kind to stifle a constitutionally guaranteed right of freedom of expression,” he said.

The HPCSA can withdraw the appeal at any time but that’s unlikely. Those behind it appear resolute in their desire to silence Noakes at all costs. The appeal could reveal who they are and why they want to do so.

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  • I am writing a book with Prof Tim Noakes on the HPCSA trial against. Publication is expected later this year.
  • I have emailed UCT, Senekal and others for comment. At the time of publication, I received no reply

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24 Comments

  1. Eat carbs, low fat I was told and over years suffered metabolic inflammatory cascade with many diseases involved. Then I found keto, got educated and empowered and am reversing diabetes, hypertension etc etc etc. The interests behind this must be quacking in their boots to be so set on defending themselves, big money gone bad – again. Remember tobacco and it’s defendants?

  2. This way of eating has given me my life back and my husbands his .
    Bless Tim Noakes and his family and keep him strong and safe.
    He will win in the end because what he says is true and enlightened people all over the world are waking up to the fact you are what you eat and you better eat well!

    • Prof Tim Noakes is ‘chosen for a time like this’ and he ‘cast his bread on the water but will find it after many days’. (A quote from the Bible.) The truth will always prevail. Petition signed and I’m praying!

  3. I feel so sorry for Professor Noakes.

    The HPCSA can try to rig another hearing, but history will damn them. They are unbelievably dumb and if this appeal goes ahead, they will destroy what is left of their tattered reputation. Joan Adams’ verdict was logical and clear. There’s no way it can be credibly reversed, but the HPCSA and ‘credibility’ don’t belong in the same sentence. Even the dimwit ASDA dietitians seem to be distancing themselves from this truly stupid decision.

  4. I am astounded that this is happening. Don’t these people read what is happening in the rest of the world??? If they do and continue on their way with this appeal they are dumber than what they appear.

  5. Scientific evidence, honesty, integrity – if only the HPCSA had any! What they do have in their favour is a stacked deck ! I, like so many, am appalled that Prof Noakes (like Gary Fettke) is so victimised. Petition signed.

  6. Bhoopchand is a maverick lawyer who uses bluster and persistence to force his points – he is, at best, a pettifogger..

    • You can’t say he’s been dealt a particularly good hand by his employers! You might say he’s done pretty well to stretch thin gruel this far! 🙂

  7. This beggars belief. The prosecution could only produce a single meta-analysis to support their position, and they had three years to make their case. The defense produced 47 RCTs,11 meta-analyses, and 28 intervention trials among other evidence; i.e. the evidence in favor of LCHF that Claire Julsing-Strydom claimed did not exist (except that it does). What makes these people think they even have a case?
    In terms of the actual evidence, they obviously don’t. Is this organization funded by the South African government? If so, I will say without an ounce of reservation that they are engaging in state-funded, state-sanctioned quackery. They are and have been launching an all-out assault against truly scientific, evidence-based assertions, as well as against freedom of speech itself, cloaked in the false aegis of protecting public health. They are contemptible hypocrites, and their so-called expert advice should be ignored.

    • Hi Arthur, it is difficult to find out exactly who is funding this trial. As a statutory body, the HPCSA is funded by its members’ registration fees and those are high. However, this case is already in the multimillions of rands and will go even higher. It raises the question of what the HPCSA is doing with its members’ money.

  8. If Prof Tim Noakes can handle this without being to much disturbed it’s probably a good thing for humanity. Remember Sweden and Dr Annika Dahlqvist who was attacked by the Swedish equivalent to the Association for Dietetics in South Africa (ADSA).
    And from the blog of Dr Malcolm Kendrick:
    “She was, of course, attacked by the idiots…sorry experts: ‘In 2007, the controversy began when two dieticians pointed out to Sweden’s National Board of Health and Welfare that LCHF dietary advice recommended to diabetic patients by general practitioner Dr Annika Dahlqvist was not compatible with either scientific evidence or conventional practice. However, following a report by diabetologist Dr Christian Berne, Dahlqvist was cleared.’”
    I believe this attack was what made LCHF widely known as a healthy diet in Sweden.

  9. Having sat through nearly the entire hearing I can say that most of those who sat across the room from Tim Noakes and his team seemed to be defined by a single characteristic. They are the type of people who will probably never admit that they are wrong about anything. With that in mind I am not the least bit surprised to hear that an appeal has been lodged. There is something profoundly irrational about all this and I wonder what would happen if Tim simply resigned from the HPCSA and walked away in the full knowledge that he has been acquitted by men and woman who showed real integrity in their deliberations. Why would any self respecting medical professional remain a member of the HPCSA.

    This is all rather tragic because hundreds of young medical students and scientists must look at this and wonder if their is any point in building a career in a country that treats essential scarce skills in this fashion. Which begs the question? What are the Ministers of Health and Science doing about this assault on one of SA’s leading scientists.

    Please keep us informed Marika

    • Wish you weren’t so right! But if Prof Noakes did deregister, the HPCSA could – and likely would – hold the appeal anyway in his absence and find against him. Many wouldn’t believe it, of course, but many would.

  10. It reminds me of the horror movie where the monster comes back to life again after everyone thought it was dead. Still, it seems a curious move to me: there doesn’t seem to be a lot of benefit for them even if they win the appeal, which may be likely if, as I read somewhere, they can determine who’s on the panel hearing the appeal. In the mean time, it’s more publicity and coverage for Professor Noakes and Banting. Perhaps they’re just blinded by outrage. Who knows?

    Marika, can you tell us anymore about the nuts and bolts of the appeal procedure? How is the hearing panel put together? What happens next and when?

      • Have enquired. There are no special rules for appeal committees. Same rules and process apply as for ordinary hearings. Appeal Committee will review arguments and findings. HPCSA gets to choose committee again and chair as usual. However, one difference: in appeals, there are only four committee members. Chair has casting vote if there’s a tie, as there often is. Clearly, HPCSA not happy with chair Joan Adams’ comprehensive ruling and the extensive body of law she used to back it up. My opinion is that this makes it likely that the HPCSA will choose a chair it feels will give the verdict it wants this time round. Otherwise, why appeal a verdict from committee members who lawyers and doctors locally and internationally have applauded for their integrity and intelligence? A chair that gives the HPCSA the verdict it wants makes it more likely that HPCSA will give her/him more work in future. It’s a hopelessly flawed system, much like the HPCSA itself. Government task team found HPCSA to be riddled with corruption in 2015. Clearly little has changed.

        • Thanks, Marika. I really appreciate your coverage on this issue. Do you have any idea about the time frame?

  11. “When the HPCSA failed to prove any harm, Bhoopchand argued that the HPCSA did not have to prove harm, just the potential.” And they proved that how?

      • So they move the goalposts to something less stringent, say they ‘have’ to prove that – and fail to do so! You would thing that they would be embarrassed about that, but no, they keep coming back for more! I hope the Prof takes them for millions this time!!

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