by Tim Noakes
Sitting on one side of the room was the HPCSA’s legal team, the ‘pro-forma complainant’ in legal terms. Head of the team was Advocate Meshack Mapholisa. Alongside him were Strydom as the complainant and two of the expert witnesses he intended calling: North-West University professor Herculina Salome Kruger and professor and paediatrician Dr Muhammad Ali Dhansay. Also present were two Cape Town attorneys, Janusz Luterek and Michiel Grobler. Mapholisa told the hearing that Luterek and Grobler were on a ‘watching brief on behalf of ADSA’ and ‘representing its interests’. I found it odd that Strydom and ADSA needed legal representation, as neither was on trial. The reason would only become apparent as the hearing progressed.
On the other side of the room sat Noakes, the ‘respondent’, with his legal team comprising Cape Town instruction attorney Adam Pike of Pike Law, advocates Michael van der Nest SC and Alfred Cockrell SC from the Johannesburg Bar, and Dr Ravin ‘Rocky’ Ramdass, a physician and practising counsel from the Pietermaritzburg Bar.
In the middle sat the HPCSA’s Professional Conduct Committee, which effectively acts as judge and jury in HPCSA hearings. Given the legal complexities in what should have been an uncomplicated case, the HPCSA had chosen the committee’s chair wisely: Advocate Joan Adams from Pretoria.
After Adams opened the hearing, Van der Nest immediately raised an objection related to the composition of the Professional Conduct Committee. The defence team had informed the HPCSA the day before in writing of their objection, but had received no reply. Therefore, Van der Nest told Adams, the committee as currently constituted was ultra vires (outside the law). He explained that legislation under the Health Professions Act and the Act itself set up the HPCSA and regulated its various committees and boards. In this case, because Noakes was a medical doctor as well as a sports scientist, the HPCSA’s Medical and Dental Board was required to set up the Professional Conduct Committee according to the Act’s regulations.
Those regulations are simple enough. According to Regulation 6.2, and Section 15(5) of the Act, the committee ‘must’ (Van der Nest emphasised the imperative language) comprise at least: two public representatives, one of whom must be the chairperson; one member of the board (i.e. the Medical and Dental Board); one legal assessor; and three persons in the ‘relevant profession’ or discipline in which the respondent (i.e. Noakes) is registered.
Adams ticked one of the two public representative boxes. A Mr Joel Vogel ticked the other. General practitioner Dr Janet Giddy ticked two boxes, as a medical doctor and Medical and Dental Board member. University of the Witwatersrand paediatrics professor Haroon Saloojee ticked the box for a member in the ‘relevant profession’, in this case medical doctors, registered with the Medical and Dental Board. The Professional Conduct Committee therefore lacked one member of the ‘relevant profession’, a medical doctor registered with the HPCSA.
However, the biggest stumbling block was the HPCSA’s last-minute inclusion of Stellenbosch University dietetics professor Renée Blaauw. Van der Nest pointed out that Blaauw ticked none of the boxes required to constitute the committee correctly. Blaauw was also the HPCSA’s second attempt at loading the committee with a dietitian, in contravention of its own regulations.
The HPCSA had notified Noakes’s legal team a little over a week before the hearing (it has to do so at least seven days before) that Professor Edelweiss Wentzel-Viljoen would be on the committee. Wentzel-Viljoen is a dietetics professor at North-West University. She is also chair of the HPCSA’s Dietetics and Nutrition Board and an ADSA member. Not surprisingly, Pike had immediately lodged an objection in writing, requesting Wentzel-Viljoen’s recusal. He noted that Wentzel-Viljoen was on record expressing opinions in public opposed to Noakes and LCHF (see Chapter 7). This raised the question of bias. When the HPCSA refused to recuse Wentzel-Viljoen, Pike wrote to her directly, requesting that she recuse herself. Wentzel-Viljoen initially declined, but a few days later she agreed.
The HPCSA then informed Noakes’s team that it had appointed Blaauw in Wentzel-Viljoen’s place. Interestingly, the timeline showed that the HPCSA had passed and signed the resolution appointing Blaauw to the Professional Conduct Committee on the same date as it appointed Wentzel-Viljoen. Pike sensed something amiss, procedurally. He told me at the time: ‘It seemed improbable that the [HPCSA] Medical and Dental Board would appoint a panel, one with Blaauw and the other with Wentzel-Viljoen, on the same day.’
In their written objection to the composition of the committee, Noakes’s lawyers had made fundamental legal points. One was that medical practitioners facing a charge of unprofessional conduct had the right to be judged by their peers and a member of the public. Another was that members of the HPCSA’s Professional Conduct Committee must be, and must be seen to be, independent and objective. And before any HPCSA committee can hear and judge a matter, it has to abide by its own rules and constitute itself properly.
From my perspective, Blaauw would have had as hard a time as Wentzel-Viljoen of persuading any reasonable person that she would be free of bias. It was only brought to the attention of Noakes’s legal team on the day of the June hearing that Blaauw is also an ADSA member. The HPCSA appeared oblivious to the conflict of interest that represented. It was as if they believed that Noakes would, or should, have no problem with the fox guarding the henhouse.
Furthermore, like Wentzel-Viljoen, Blaauw’s bias in favour of sugar in the diet and against Noakes’s views on nutrition was well documented. She had openly supported the South African Food-based Dietary Guidelines on sugar consumption, and had participated in a South African Sugar Association ‘roadshow’ on nutrition to fight non-communicable diseases.8
On the first day of the hearing, Van der Nest pointed out the dilemma Adams now faced. The hearing could not proceed until she ruled on the make-up of the committee. And it was debatable whether Adams could rule, because her committee was not, in fact, a committee.
Unsurprisingly, Mapholisa had a different interpretation of the regulations governing the composition of the committee. In trying hard to load the committee with a dietitian, he may have signalled early on that there was some kind of turf war playing out. Dietitians believe that they are best qualified to give nutrition advice to the public. Indeed, ADSA believes that dietitians should have a monopoly on dishing out dietary advice. They don’t want Noakes giving nutrition advice, especially if it conflicts with their own and the country’s official dietary guidelines. Mapholisa was also indicating the lengths to which the HPCSA would be prepared to go in order to find Noakes guilty.
Mapholisa said that the HPCSA Fourth Preliminary Committee of Inquiry, which had decided to charge Noakes, had been made up solely of medical doctors. That committee, he said, had deemed it fit to ‘request for an expert opinion of a dietician to give advice’. That was because the committee members felt that they did not have the ‘knowledge, experience and qualification to comment on diet issues’. Mapholisa argued that ‘logic would require’ that the Professional Conduct Committee should also have the right to bring in a dietitian. If not, he said, the committee would consist of ‘the blind leading the blind’ when it came to discerning issues of danger and diet. Mapholisa stressed the need for committee members with ‘qualifications and experience in relation to infant nutritional diet’. It would be unfair, he said, to expect that ‘people who do not have experience in diet issues should be burdened with this particular task of making a judge call on a particular topic which they do not understand’.
Mapholisa’s argument hinted at another strategy that the HPCSA and its witnesses would employ in prosecuting Noakes: trying to undermine his extensive expertise and knowledge of nutrition for all ages. The HPCSA eventually expanded the charge to say that Noakes was acting ‘outside his scope’ of professional medical expertise by advising patients on nutrition.
Van der Nest argued that Mapholisa, as the pro-forma complainant in the case, could not unilaterally decide the make-up of the committee. The law was clear, Van der Nest said
. Noakes had the right to be tried ‘by his peers, his peers only, and by members of the public’. Dietitians were neither his peers, nor were they from a ‘relevant profession’. Van der Nest also stressed that it was not only dietitians who could understand nutrition and medical issues. ‘A body of peers, a body of general practitioners and of relevant [i.e. of the same] profession, is perfectly able to consider expert evidence from dietitians and nutritionists and come to a decision,’ he said. Therefore, there was no need for a dietitian or nutritionist to be on the panel.
After an adjournment, Adams ruled that the Professional Conduct Committee was indeed not properly constituted. She also ruled that the Health Professions Act, under which the HPCSA was constituted, defined the minimum, not maximum, number of committee members. The responsibility for appointing another ‘relevant’ member rested squarely on the shoulders of the chair of the Medical and Dental Board, not herself or her committee, Adams said. This would not preclude the committee from co-opting other members, which could include a dietitian such as Blaauw. On the topic of possible bias, Adams said, with a perfectly straight face, that Blaauw had indicated ‘her absolute objectivity’. I found that hard to believe – as if all anyone had to do to prove lack of bias to this committee was simply to say: ‘Trust me. I am absolutely unbiased.’
Van der Nest countered that Adams could not rule on how the committee could rectify itself because it was not properly constituted to begin with. It was also not possible for the HPCSA to rectify the errors timeously, according to its own rules, to allow the hearing to proceed.
Van der Nest noted ‘a few other fundamental difficulties’. One was Adams’s ruling that the committee could add a dietitian or nutritionist. ‘The problem is that it is a finding that you make while you are not a constituted committee,’ he argued. ‘Properly speaking’, the committee did not exist, and so the chair of a non-existent committee could not rule. In addition, the Medical and Dental Board had erroneously placed Blaauw on the Professional Conduct Committee, Van der Nest said. Therefore the board, and not Adams or her committee, would have to rectify any errors.
The issue of whether Blaauw should recuse herself was independent of the question of whether there should be a dietitian on the committee, Van der Nest said. In reply, Mapholisa argued that Adams’s decision stood and that Blaauw could be on the committee. ‘She is going nowhere,’ he said.
They went back and forth until Adams eventually delayed the hearing until November 2015.
Afterwards, I asked Mapholisa for comment on criticisms that the HPCSA had had more than enough time to constitute the Professional Conduct Committee correctly. After all, the decision to charge Noakes had been made in September 2014, and he had only been informed in January 2015. The HPCSA had thus had a four-month head start in planning the prosecution. Mapholisa declined to comment, saying that I had to go through the HPCSA’s official communication channels.
Pike was more forthcoming. ‘It was a bitter-sweet day,’ he said. ‘We came prepared to hit the ground running if the committee went ahead despite our objections. These delays happen all the time in contentious proceedings. We’re happy that our view prevailed. Now we look forward to fighting the good fight in November.’
10
The Second Session: November 2015
‘A delusion is something that people believe in despite a total lack of evidence.’
– Richard Dawkins, English ethologist, evolutionary biologist and author
An air of anticipation hung over the room when the second session of the HPCSA hearing commenced on 23 November 2015 at the Belmont Square Conference Centre in Rondebosch, Cape Town. As before, on one side sat the HPCSA’s legal team with dietitian Claire Julsing Strydom and other witnesses. On the other side was Noakes, his legal team and one of the expert witnesses he hoped to call once the HPCSA closed its case, New Zealand–based South African dietitian and academic Dr Caryn Zinn.
Between them sat the HPCSA’s Professional Conduct Committee and chair, Advocate Joan Adams. This time, the HPCSA had constituted the committee correctly. There were the usual legal and other ‘housekeeping’ matters to clear. The defence made application to be allowed to call a witness, Canadian professor Stephen Cunnane, via video link. The HPCSA wasted most of that first day arguing against the application.
Prosecutor Meshack Mapholisa argued that the HPCSA was a ‘rigid creature of statute’ that had to abide by rules governing witnesses’ evidence. Witnesses had always given evidence in person, he said, and HPCSA regulations did not expressly allow evidence via video link. The HPCSA had never before been asked for permission to present evidence in such a manner. Video link would make cross-examination difficult, he said. It wouldn’t be easy to pick up nuances of body language and demeanour. Someone could coach the witnesses off-camera or ‘tamper’ with them during toilet breaks. Mapholisa even claimed that someone could pretend to be Cunnane and ‘no one would be any the wiser’. He also cited the ‘connection factor’: that the technology could break down at any moment, causing ‘intolerable interruptions and delays’. Another obstacle was ‘load-shedding’, the peculiarly South African term for the regular power blackouts that plagued the country at the time. With a flourish, Mapholisa ended by saying that evidence via video link would be ‘highly prejudicial’ to the HPCSA’s case.
Advocate Michael van der Nest SC was restrained in reply. HPCSA regulations did not specifically forbid evidence via video link, he said. He cited extensive local and international case law in which similar medical tribunals and courts routinely allowed evidence via video link. Evidence via video link was no longer controversial, and the benefits were now ‘almost trite’, he said. Videoconferencing ‘is an efficient and an effective way of providing oral evidence both in-chief and in cross-examination’. It is ‘simply another tool for securing effective access to justice’.
There were good reasons why Noakes could not find local specialists to testify for him, Van der Nest said. Thus, he was compelled to look abroad. Cunnane’s schedule and financial considerations meant that a video link would be necessary. It was in the interests of justice for the committee to hear ‘as full a debate and as balanced a debate as possible’, Van der Nest said. ‘If giving the evidence contributes to that, that is in the interests of justice. If excluding it leads to the opposite, that is not in the interests of justice.’
After an adjournment, Adams gave her committee’s unanimous decision: Noakes could allow witnesses via video link. She ruled, inter alia, that the HPCSA was a national institution that was expected to ‘keep up with the times and the trends and with technology’. It was ‘far-fetched’ to assume bad faith on the part of experts in this case. It was unlikely that Cunnane would require ‘coaching’ or submit to ‘tampering’. There was also ‘no reasonable prospect’ of anyone getting away with pretending to be him. It was ‘unfathomable’ that anyone would attempt such a fraud on international television and media channels.
It was also reasonable to assume that Noakes would be forced to look abroad for experts, Adams said. Local experts would have ‘a reasonable concern that they would not necessarily want to align themselves publicly with such a high-profile case for whatever personal or professional reasons’. That should not hamper Noakes in presenting his case properly.
Next, Mapholisa announced that the HPCSA had amended the charge against Noakes, backdating it from February 2014 to include January 2014. The charge now read: ‘That you are guilty of unprofessional conduct or conduct which, when regard is had to your profession, in that during the period between January 2014 and February 2014, you acted in a manner that is not in accordance with the norms and standards of your profession in that you provided unconventional advice on breastfeeding babies on social networks (tweet/s).’
Van der Nest did not oppose the amendment, but said that he would address it at a later stage. He noted that the charge was now ‘inconsistent with the parameters of the points of inquiry’. Those points were the ‘four corners
of the charge’, there to stop either side from straying beyond the perimeters of the charge.
When Mapholisa opened the HPCSA’s case, he may well have thought that a guilty verdict was a done deal. He had what he probably considered to be four strong witnesses. Apart from Strydom as a factual witness, he had lined up three expert witnesses: North-West University professors Hester ‘Este’ Vorster and Salome Kruger, and paediatrician Dr Muhammad Ali Dhansay.
These were relatively low-level expert witnesses. I wondered why none was from South Africa’s top three universities: UCT, Wits and Stellenbosch. After all, academics at UCT and Stellenbosch had been the most vocal and active in their opposition to Noakes and LCHF. The HPCSA would not answer my questions on the topic. None of its experts could rival Noakes’s rating by the NRF as an A1 scientist in sports science and nutrition. (The NRF has since renewed his rating for a third consecutive five-year period.) Vorster has an A2 rating, Kruger a C2, and Dhansay no rating at all. And none of them could match Noakes’s large ‘academic footprint’ – an H-index of 71. Vorster’s H-index at the time was 22 or 24 (she couldn’t recall which); Kruger’s was 17; and if Dhansay had one at all, he did not divulge it.
Interestingly, all the HPCSA’s witnesses downplayed Noakes’s extensive scientific expertise in and knowledge of nutrition. In emailed correspondence, Kruger seemed to take exception to the idea that Noakes is a world authority on nutrition. She would only acknowledge him as an expert in sports science.
The HPCSA had actually intended to call another expert witness, registered paediatric dietitian Marlene Ellmer, who had been the first dietitian to respond to Noakes’s tweet (see Chapter 8). Before the hearing began in June 2015, Ellmer was on the HPCSA’s list of experts and they had sent Noakes’s legal team a summary of her testimony. The document had been finalised on 4 May, indicating that up to a month before the hearing began, Ellmer still considered herself competent to give expert testimony on infant feeding.