By Marika Sboros
So, the Health Professions Council of SA (HPCSA) has appealed the not guilty verdict for Prof Tim Noakes. His lawyers are furious and up for the fight ahead. Noakes is “strangely elated”. He says that it will “allow the exposure of much about which the South African public would otherwise have remained ignorant”.
Of course, an appeal was always on the cards. The HPCSA’s legal team has the right of appeal. However, even die-hard opponents of Noakes see it as a vindictive, stupid move. It may come back to haunt the HPCSA and the lone, “horrified” dietitian who started the case against Noakes. And her organisation, the Association for Dietetics in SA (ADSA). And the many other dietitians, doctors and assorted academics involved in his prosecution.
His lawyers call the case against him a persecution. The appeal lends more credence to that. It also feeds speculation of vested interests behind the HPCSA’s failed bid to silence him on low-carb, high-fat (LCHF). The case has lasted more than three years and cost many millions of rands. If the HPCSA pursues its path, as looks likely, it could go on for years and cost millions more. Noakes’ lawyers see it as “more waste of everyone’s time and money”.
All for a single tweet in which Noakes said that good first foods for infants are LCHF.
There are concerns that the HPCSA will load the committee hearing the appeal to get the verdict it wants this time round. The HPCSA is, shown to be riddled with corruption. And Noakes’ lawyers showed how the HPCSA marked its prosecution of him, from inception, by “gross unfairness and injustice, double standards, hypocrisy and by a complete lack of merit”. However, it won’t be a breeze for the HPCSA’s lawyers to continue that in the full glare of social media.
Already, a Cape Town medical doctor has launched a petition to persuade the HPCSA to drop the appeal.
They face an energised, wrathful Noakes and his legal “dream” team: instructing attorney Adam Pike, of Pike Law, advocate Michael van der Nest (SC) and advocate Dr Ravin “Rocky” Ramdass. Some have worked pro bono for Noakes from the start. They have said that there is no change to the pro bono status.
The HPCSA’s Professional Conduct Committee also vindicated him comprehensively in Cape Town on April 21, 2017 on strong legal grounds. Committee chair, Pretoria advocate Joan Adams, was only relatively restrained in dismissing the HPCSA’s case against Noakes.
Adams cleared him on 10 points of the charge of unprofessional conduct. She ruled that the HPCSA had failed to prove all three pillars of the charge. The evidence showed that Noakes did not have a doctor-patient relationship on Twitter. His tweet was information, not medical advice. Crucially, the tweet was evidence-based. Adams said the evidence of all Noakes’ experts had “a certain logic”.
Therefore, his tweet was not unconventional, dangerous or life-threatening, as the HPCSA alleged.
Noakes’ lawyers have filed a cross-appeal. Their grounds: Adams wrongly did not rule on an award costs in her committee’s majority (four-to-one) verdict.
Current ADSA president Maryke Gallager claims that the HPCSA did not consult ADSA before lodging the appeal. “We were surprised at the decision but, as it is an HPCSA process, it is their decision to make,” she told me via email.
If that is true, it raises the question why and 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.
Noakes says 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 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 would also have overlooked the many injustices his lawyers identified in the HPCSA’s case him. Noakes would likely not have renewed his HPCSA registration as a medical doctor. The HPCSA would no longer have been able to help dietitians try to muzzle him. That would have been a small price to pay.
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.
He told journalist Adiel Ismail that he and his legal team see the case as “malicious prosecution and persecution”. The HPCSA’s appeal has opened a “Pandora’s box”.
His lawyers 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.”
Noakes’ lawyers aren’t saying but my guess is that one target is the Johannesburg dietitian who started the case. Claire Julsing Strydom was ADSA president when she lodged her “horrified” complaint against Noakes. The appeal puts the spotlight back on to how she morphed ADSA into the complainant.
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. In her evidence, Strydom showed that she complained in her personal capacity from the outset. The emails confirm this. Strydom also confirmed it to me in a short email exchange in 2015.
That can seem like a small point. However, the legal implications are big. The appeal makes them even bigger. Lawyers for Strydom, Gallagher and ADSA will likely have explained that to their clients.
@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 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. 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
As well, Gallagher (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, and quaintly, “sought clarity” from the HPCSA on doctors’ conduct on social media. The HPCSA has no rules for doctors’ conduct on social media, as Adams ruled. It did not need more than three years to tell Gallager and ADSA that.
The appeal will likely increase the significant backlash against ADSA for going after Noakes on what his lawyers say was Strydom’s “whim”.
Someone is driving the HPCSA legal team’s decision to appeal. Who that is, is not yet clear. Noakes’ supporters on social media have speculated. If the HPCSA does not volunteer who it is, PAIA (Protection of Access to Information Act) applications will reveal all.
Noakes’ 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 appropriateness of profiting by becoming a consultant to the HPCSA against Noakes.
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 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. He is their former colleague and a distinguished UCT emeritus professor.
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.
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.
Click here to read: ILSI ‘QUEENPINS’ TRYING TO NAIL HIM
HPCSA advocate Dr Ajay Bhoopchand took nearly three times as many – at just over 104,000 words. He demonstrated a distinguishing characteristic the defence team identified in 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 “changed tack”. That reflected in Bhoopchand’s arguments.
From alleging a doctor-patient relationship, Bhoopchand suddenly claimed that the HPCSA did not have to prove the relationship. He also argued that the onus was on the defence to prove that a doctor-patient relationship was crucial to the case. And when evidence failed even to prove the existence of a patient, Bhoopchand argued that the whole world reading Noakes’ tweet could have been his patient.
A crucial pillar of the HPCSA’s case was that his tweet was “unconventional”, it constituted “danger” and “harm”, or at least the potential for serious harm. When the HPCSA failed to prove any harm, Bhoopchand argued that the HPCSA did not have to prove harm, just the potential.
He appeared oblivious to the absurdities of the HPCSA’s prosecution of Noakes. It was left to Van der Nest to fill in the gaps. He showed how the HPCSA had prosecuted Noakes as a medical doctor when he did not act as one. It had done so in circumstances where it has not published guidelines relating to the use of Twitter or social media by medical doctors.
“Ultimately, the prosecution amounts to impermissible censorship and an attempt of the worst kind to stifle a constitutionally guaranteed right of freedom of expression,” Van der Nest said.
The HPCSA can withdraw the appeal at any time. That’s unlikely to happen. Those behind it appear resolute – and desperate – in their desire to silence Noakes at all costs. In time, the appeal will reveal who they are and why they want to do so.