By Marika Sboros
Groundhog Day or deja vue? Take your pick. The Health Professions Council of SA (HPCSA) has announced an appeal against its own committee’s not guilty verdict for Prof Tim Noakes. It can seem like February 2 and just another Groundhog Day but Noakes’ lawyers have declared themselves 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.
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). If ever there were proof of Groundhog Day in this trial, it’s the interests that keep popping up in this trial.
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.
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.
— Tim Noakes (@ProfTimNoakes) May 11, 2017
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.
@neeran_naidoo @DiscoStew66 @MarikaSboros @ADSA_RD @NSDietitiansSA @DietitianClaire @adsard @ProfTimNoakes And then testified under oath that she laid the complaint on behalf of @ADSA_RD when she did not.
— Jenny van Zyl (@DieticianJenny) April 27, 2017
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.
@medfraud_pmh @ProfTimNoakes @MarikaSboros @bigfatsurprise Good luck also getting an answer from @Maryke_WW. This graphic says it all based on her last public statement on this matter. pic.twitter.com/SUSBhwFR7L
— Macro Four (@MacroFour) May 13, 2017
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.
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