By Marika Sboros
Will academic “mobsters” win their battle to muzzle Cape Town scientist Prof Tim Noakes? And how did the dietitian with a business to protect get the might of a South African state body to prosecute him for his opinions on nutrition? Those questions are still hanging in the ether in the wake of the case against him that the public has dubbed The Nutrition Trial of the 21st Century.
The prosecution has raised questions around academic “mobsters” in a case that legal experts say defies logic, scientific evidence and common sense.
The Health Profession’s Council of South Africa (HPCSA) has appealed its committee’s comprehensive not-guilty verdict for Noakes in 2017. The appeal concluded in Pretoria on February 23, 2018. Appeal Committee chair, advocate Justice Mogotsi, said that he 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, claiming that the tweet was potentially “life-threatening”.
The path to prosecution
The HPCSA appealed the not-guilty verdict on the basis that its Professional Conduct Committee erred in matters of law and facts. Noakes’s lawyers have filed a cross-appeal including on the question of costs. They have argued that the case has dragged on for more than four years – justice delayed is justice denied. And that financial and emotional cost for Noakes has been unacceptably, unnecessarily high.
Conservative estimates put the HPCSA’s cost alone at R10 million before the appeal. Noakes’s costs would have been as high had most of his legal team not worked pro bono from the outset.
The appeal has added costs significantly to both sides.
Seek and ye shall find!
The answer to how Strydom persuaded the HPCSA to go after Noakes on that basis is relatively easy to find. But only if you know where to look. Why she succeeded is much more complex. 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 in getting the HPCSA to prosecute Noakes. And from academics at a minor institution, North-West (formerly Potchefstroom) University.
As well, the evidence suggests, as Noakes’s lawyers successfully argued in closing, that Strydom was just a vexatious, ‘disgruntled’ dietitian. Thereafter, they argued that the HPCSA had no sustainable case against him from the start.
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. Increasingly, it lies in evidence of academic “mobsters” behind Strydom.
The evidence that Pike uncovered reveals that Strydom had inside help. She had a “deep throat” in the HPCSA -its 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 incriminating email chain between Wentzel-Viljoen (an ADSA member), Strydom and ADSA dietitian, Maryke Gallagher. In one email Strydom and Gallagher appealed to Wentzel-Viljoen 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.
North West University refused access to records that Pike requested.
Was Noakes ‘mobbed’?
All that has raised a more sinister reason for Strydom’s easy path to persuading the HPCSA to go after him. It may lie in the dark art of “academic mobbing”, aka academic bullying.
Academic mobbing is not restricted to South Africa’s top universities. It is a global phenomenon. 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 offering a “platform for free thought”, Brad Cran tells Sergent’s shocking story with poetic poignancy. 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 good people do bad things
Cran cites other examples of academic mobbing. One victim calls for a focus to shift from looking for the “bad guys” to 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”. His lawyers agree and have eloquently described the “ferocity” with which the HPCSA has prosecuted Noakes. Ultimately, they say that the HPCSA was unable to prove 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. And that he 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?
They also noted that there wasn’t even a victim in this case. That curious fact also elicited comment from Appeal Chair Mogotsi. 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. Crucially, Noakes did not give her advice as Strydom had claimed.
HPCSA’s ‘bad behaviour’
Van der Nest argued that the HPCSA has acted in bad faith throughout. Noakes was entitled to costs for having to defend himself against an action that had no merit, he said. He also argued that as the HPCSA as a statutory body, enjoys no protection from the law for its bad behaviour.
And in discussions with Pike, it became clear that the bad behaviour began and did not end with Wentzel-Viljoen.
The HPCSA breached its own rules by trying to appoint Wentzel-Viljoen onto its Professional Conduct Committee that heard the charge against Noakes, he said. 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.
Click here to read: Teicholz: how food industry influences dietary advice
Wentzel-Viljoen’s very public opposition to Noakes and LCHF was also a red flag that she would be biased. She also vigorously refused Pike’s written request to recuse herself and only agreed to stand down after he persisted.
The appeal has, therefore, also 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, the prosecution 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 legal and ethical remits. Both also make comments suggesting significant bias against Noakes
Thus, the appeal process also revealed the HPCSA’s suspect use of secret reports to charge health professionals. Dhai commissioned a report from North-West University nutrition professor Hester “Este” Vorster that was highly critical of Noakes and LHCF. Inexplicably, Dhai kept it secret from Noakes.
Instead, she used the report to make the committee’s decision that the HPCSA should charge him. According to Pike, this was a flagrant breach of 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, she has not explained her conduct publicly.
‘The spell’ of UCT Faculty of Health Sciences
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”.
One faculty member was Prof Marjanne Senekal, also an ADSA member. Senekal became a consultant and advisor to the HPCSA in late 2015 only after it became clear that its case was in terminal decline.
Senekal is also 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 speaking to Noakes first.
Van der Nest argued in cross-appeal that the charge against Noakes was “born of an unlawful, irregular, unfair and biased process”. Noakes was legally entitled to compensation for costs incurred in having to defend himself against unlawful charges, he said. Therefore, the Professional Conduct Committee erred in not considering the absence of lawful foundation or justification for the charge against him.
Was it just ‘legitimate debate’?
In arguing, Van der Nest said that the case boiled down to nothing more than “legitimate debate”. Strydom had an opinion that LCHF was bad and Noakes that it was good, he said. But she 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 in both exercise science and nutrition.
None of the three North-West University “expert” witnesses the HPCSA mustered against him matched his scientific rating. For example, Vorster has a B1 rating, Prof Salome Kruger a C1 rating and Dr Ali Dhansay no rating at all.
Of course, Strydom and the dieticians are entitled to opposing views just as Noakes is to his view, as Van der Nest argued. And Strydom was also entitled to be wrong, he said. But “hat if (Noakes) is right scientifically and she is wrong?” Van der Nest argued. “What gives her the right to express her view that LCHF is dangerous for breastfeeding and assume she is correct? And why can she use social media to express her view with impunity and publicly but he cannot?”
As importantly, he kept coming back to why the HPCSA charged and prosecuted Noakes but not Strydom: “Who says that she is entitled to have the machinery of the state prosecuting him because he thinks he right?”
High court next stop?
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.
Muzzling the mobsters
It remains to be seen 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.
Noakes says that he can probably count himself lucky that he survived academic bullying relatively unscathed. He says 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.
His primary motivation in fighting this case from the outset was not about money. He just wants to “stop the HPCSA from doing this to anyone else”.
And this time, the world is closely watching the outcome of this strange scientific saga.
- I am co-author with Prof Tim Noakes of Lore of Nutrition, Challenging Conventional Dietary Beliefs (Penguin 2017). I am contributing author to Healthy Eating, The BIG Mistake by Dr Verner Wheelock (Columbus 2018)
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