by Tim Noakes
Vorster made brief reference to ketosis in her evidence, but declined to elaborate under cross-examination. Instead, she suggested that Ramdass reserve his questions on that subject to ‘our expert in that field, which is Professor Dhansay’. Dhansay later told the hearing that he was not an expert in ketosis.
Salome Kruger testified next. She did not help her case by admitting under cross-examination that she had written her expert report ‘in a rush’ the night before. She also said that she had ‘not used much detail’ and had not checked her report before submitting it.
In her testimony, Kruger alleged that, in his tweet, Noakes had essentially advised Leenstra to stop breastfeeding. ‘Only one type of advice should be given to a mother of a newborn infant and that is exclusive breastfeeding,’ Kruger said. Noakes should also have warned Leenstra ‘not to wean the baby too early on any diet’. Kruger claimed that her concern was that Noakes’s tweet was ‘not in line with the commitment to promote, protect and support exclusive breastfeeding up to six months’.
She also said that she had ‘noticed a tweet’ (not the one that prompted Strydom’s complaint) in which Noakes had suggested that ketogenic diets are healthy for babies. This pointed to why the HPCSA had extended the time period of the charge to include tweets before February 2014. Kruger believed that Noakes’s suggestion constituted unprofessional conduct because it was not evidence-based. She was concerned about the ‘long-term effects of the ketogenic diet on brain development’. This despite Noakes saying nothing about a ketogenic diet in his tweet.
Kruger is a co-author of the ‘Complementary feeding’ support paper for the South African Food-based Dietary Guidelines. She said that while Noakes’s views on nutrition ‘could be in line with the South African Food-based Dietary Guideline on complementary feeding’, he had been unprofessional in tweeting advice that was not evidence-based.
She launched an attack on doctors who write ‘popular’ books. It was obvious she was talking about Noakes, the author of bestsellers aimed at the lay reader. Chief among them is The Real Meal Revolution. The frequent references to this book during the hearing fuelled the theory that its success was one of Strydom’s reasons for complaining about him. Kruger claimed that, by definition, such books are not evidence-based. She was especially critical of US neurologist Dr David Perlmutter, author of the bestselling Grain Brain: The Surprising Truth About Wheat, Carbs, and Sugar – Your Brain’s Silent Killers. Kruger described Perlmutter as ‘once a brilliant scientist’, now a mere ‘popular book writer’.
Van der Nest objected frequently on the grounds of irrelevance. Undeterred, Kruger said that she used Perlmutter as an example to demonstrate ‘the evidence-based process’ to her students. She was about to cite a critique of Perlmutter’s book by US assistant professor of religion Dr Alan Levinovitz when an irritated Van der Nest interjected: ‘This really has to stop, Chair.’ Adams sustained the objection.
Although she is not a qualified ethicist, Kruger ventured expert testimony in that area anyway, laying herself wide open to attack by Ramdass during cross-examination. He honed in on inconsistencies in her claim that Noakes had breached two ethical principles in his alleged doctor–patient relationship with Leenstra: non-maleficence (do no harm) and beneficence (do good). When he asked Kruger to name all four pillars of ethics, she could only name three, including respect for autonomy of the patient. Ramdass reminded her of the fourth: distributive justice (to treat all people equally and equitably). He questioned Kruger’s failure to comment on the ethics of Strydom’s disparaging remarks about Noakes in her tweets, and reminded her of her ethical duty to be balanced and objective when giving expert testimony. Kruger had no answer, other than to say that she had done what the HPCSA had asked: to focus only on Noakes.
Kruger echoed Vorster’s claim that Noakes had ‘defamed’ nutrition departments and lecturers in South African universities by describing their dietary advice as ‘dogma’. This prompted a question from Professional Conduct Committee member Dr Janet Giddy, who said that she failed to see where defamation was mentioned in the charge against Noakes. ‘I am not sure why you put this into your report,’ she told Kruger. Again, Kruger had no answer.
Next up was Dr Muhammad Ali Dhansay. He sounded confident enough as Mapholisa led his evidence, starting with his CV. Dhansay is a paediatrician, an extraordinary associate professor and external lecturer at Stellenbosch University’s Division of Human Nutrition and Department of Paediatrics and Child Health respectively, and a member of the SAMRC Burden of Disease Research Unit. In his testimony, he did not disclose his links to the food and drug industries, or that he is a former president of the South African branch of the US-based International Life Sciences Institute, a Coca-Cola front organisation. (Russ Greene revealed Dhansay’s links with the ILSI in his comprehensive report on Noakes’s trial in January 2017.2)
In his evidence, Dhansay claimed that Noakes had provided ‘wholly inappropriate and irresponsible’ nutritional advice about infant weaning to a mother. He said that Noakes’s recommendation went ‘against all international and national precepts and guidance’, and that South Africa’s prevalence of stunted growth would be exacerbated if parents abided by it.
He also brought up the topic of ketones and ketogenic diets, and attempted to discredit the work of Canadian ketogenic specialist Professor Stephen Cunnane (presumably in anticipation of Cunnane’s expert testimony for the defence). Yet Dhansay’s knowledge of ketone metabolism proved minimal. He also did not seem clear on the difference between a low-carbohydrate diet and a ketogenic diet. Under cross-examination, Ramdass showed that Dhansay also did not know the difference between causation and association in quoting research on the deaths of two children on a ketogenic diet.
When questioned about his opinions on the dangers of these diets, Dhansay made a comment that highlighted the HPCSA’s bias against Noakes. He said that the HPCSA had given him a ‘directive or guidance’ to provide opinion on certain aspects of Noakes’s tweet, including his alleged recommendation of a ketogenic diet to a breastfeeding mother. By now it had become apparent that the HPCSA had given a similar directive to all its expert witnesses on nutrition.
Dhansay was either unwilling or genuinely unable to say who had given him the directive to focus on ketogenic diets. And when he admitted that he was not a ketosis expert, Ramdass asked why, when the approach was made, he had not immediately informed the HPCSA. Dhansay was defensive. ‘Nobody knows everything,’ he said. ‘I want to state, for the record, that as far as the physiology of ketones and so forth, it is not within my experience and area of expertise. However, I do say that one can research and do background checks and so forth. So I am au fait with the literature, but I am not an expert in ketone metabolism.’
Ramdass pointed out that although Dhansay claimed to have ‘no interest’ in The Real Meal Revolution and Raising Superheroes, he had quoted extensively from them in his evidence. He also queried the rationale behind Dhansay’s stated tendency to ‘zoom’ in and out when scanning research for points to include in his testimony. Dhansay explained that he meant ‘not starting with the knowledge, but being aware of the knowledge’. He said that he had read only about 40 per cent of the 4 000 pages that Noakes had submitted as part of his evidence. (By the end of the trial, it had increased to 6 000 pages.)
Ramdass completed his cross-examination of Dhansay at the close of the fifth day, Friday 27 November. It was clear that the HPCSA’s case was in serious trouble. The defence had effectively undermined the evidence of all of its witnesses. Adams prepared to adjourn the hearing until Monday morning, when Noakes’s defence team would have their turn. It was then that Mapholisa unexpectedly announced that he would apply to call another witness – HPCSA legal officer Nkagisang Madube – to give factual evidence. That meant no seven-day notice requirement, as was the case with expert witnesses.
When Van der Nest asked for confirmation that this would be the HPCSA’s last witness, Mapholisa was evasive. Eventuall
y he admitted that he would apply to call more experts, but refused to divulge their names or the topics on which they would testify. Van der Nest was having none of it. Neither was a clearly exasperated Adams. The hearing was not the set of Ally McBeal or Petrocelli, she said, referencing popular American TV courtroom dramas. There would be no surprise witnesses ‘coming into court with drums rolling [to] save the day’. That only worked in the movies, not in the South African legal system. ‘[South Africa] is a democracy,’ Adams said. ‘We have a Constitution and the Promotion of Administrative Justice Act.’ Justice, fairness and Noakes’s constitutional rights demanded that Mapholisa reveal the names and status of the witnesses, she said.
Mapholisa gave in, but only after the defence gave an undertaking to keep the names confidential. Adams adjourned the session until Monday 30 November.
When the hearing resumed, both sides were in full fight mode. Mapholisa brought his application to call two new expert witnesses. He named only one, Stellenbosch University psychiatry professor Willie Pienaar, as the second had not yet agreed. Mapholisa said that it would be highly prejudicial to the HPCSA if the Professional Conduct Committee did not agree to his application, which, he added, he had spent the weekend preparing at an internet café after his home computer crashed. He described Ramdass’s claim that Kruger was not an expert on ethics as ‘bizarre’. (Kruger has no formal qualifications in medical bioethics.) However, equally bizarre was Mapholisa’s contention that it was the defence team’s fault that he had to call more witnesses. In effect, he was admitting that Noakes’s lawyers had done too good a job at discrediting his experts.
In support of his application, Mapholisa cited the HPCSA’s hearing against Dr Wouter Basson, the man dubbed ‘Dr Death’. Van der Nest was unimpressed. The comparison with Basson was ‘odious’, he said, and simply ‘didn’t hold up’. In Basson’s case, his lawyers had argued that their first witness had made concessions and, in the interests of justice, he required another witness. Mapholisa was claiming the opposite. He was saying: ‘We stand by Professor Kruger. We will rely on Professor Kruger.’ In standing so firmly by Kruger’s testimony, Mapholisa had no need to call another witness, Van der Nest said.
Van der Nest also objected on the grounds of procedural unfairness. He placed on record the chronology of applications and related events. Noakes tweeted on 5 February 2014. Strydom lodged the complaint with the HPCSA on 6 February. The HPCSA’s Fourth Preliminary Committee of Inquiry charged him seven months later, on 10 September 2014. It then took another four months to deliver the five-line charge to Noakes, who only received it on 28 January 2015. In the interim, the HPCSA had commissioned Vorster’s report and kept it secret from Noakes. The report dealt specifically with whether or not Leenstra was Noakes’s patient and the suitability of Twitter as a medium for providing dietary advice. In other words, the HPCSA had flagged the ‘ethics’ issue long before it charged Noakes. It was not ‘by any stretch a new issue’, stated Van der Nest.
The HPCSA then took nine months to constitute the Professional Conduct Committee to hear the charge against him, in breach of its own rules at the first hearing attempt on 4 June 2015. The net effect, said Van der Nest, was that the hearing date was wasted, because the matter could not proceed, and costs were mounting. In the meantime, the HPCSA had mustered three experts, all professors, to address all aspects of its case. It had correctly given the list to the defence at a prehearing conference on 28 May 2015. By doing so, the HPCSA had placed on record that it had all the experts it needed to proceed. More importantly, each expert had produced summaries and expert opinions in advance dealing with the alleged doctor–patient relationship between Leenstra and Noakes.
Van der Nest argued that the HPCSA’s costly delaying tactics had made the case more adversarial than was necessary. He noted that the HPCSA had, in fact, adopted an adversarial attitude from the outset, as he could not think of a single request of any material consequence made by the defence to which the HPCSA had agreed. ‘These are proceedings that are quasi-criminal in nature,’ he said. ‘This is a prosecution, not a civil proceeding. There are very serious consequences arising out of it.’
Van der Nest pointed to Section 35(3)(d) of South Africa’s Constitution, which states: ‘Every accused person has a right to a fair trial, which includes the right to have their trial begin and conclude without unreasonable delay.’ Against this background, Van der Nest laid out significant prejudice to Noakes, who had had a cloud hanging over his head since February 2014. The fact that his own professional body was prosecuting him and that it had played out in the press had caused significant distress to Noakes and his family. The case was a drain on Noakes both emotionally and financially. It was not fair to let it drag on, much less for two years with no end in sight. ‘It is well known that justice delayed is justice denied, particularly in matters concerning reputation,’ Van der Nest said.
Van der Nest cited a seminal High Court judgment on the regulations governing expert witnesses. The judge ruled that the main purpose of Rule 36(9)(b) of the ‘Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa’* was to ‘remove the element of surprise, which in earlier times (regarded as an element affording a tactical advantage) frequently caused delays in the conduct of trials’.3 Acceding to Mapholisa’s request would ‘impermissibly sanction a breach of the regulations’ and lead to more costs, said Van der Nest. Any opportunity to wrap up the hearing before the December holidays was rapidly ‘disappearing into the mist’.
Van der Nest said that Noakes was one of South Africa’s few respected A1-rated scientists. He had dealt with this ordeal ‘with dignity and in a way that wishes to assist you to get this completed … When you look at prejudice, his prejudice is manifest.’ On prejudice to the HPCSA, Van der Nest submitted that there was ‘absolutely none’.
Finally, Van der Nest said that the Constitution embraced the concept of substantive fairness: ‘We say this is substantially unfair and that the pro-forma complainant [Mapholisa] should not be permitted to do this and to call on your sympathy for having worked over the weekend in an internet café. That is just not appropriate.’
Adams ruled in Mapholisa’s favour, but she acknowledged the effects of the case on Noakes, saying that she had participated in many HPCSA hearings and that, in general, healthcare professionals regarded these proceedings, where they were tried by their peers, as ‘more traumatic than any court case’. HPCSA hearings are sui generis (unique), Adams said. They are not criminal or civil, but ‘a bit of both’. The onus of proof is, therefore, on a balance of probabilities, not beyond reasonable doubt as in a criminal case. It is not unusual in court cases and hearings of this nature for what transpires during cross-examination to oblige one party to feel the need for further evidence. Mapholisa was not introducing new scientific or nutritional information; he was introducing another expert on professional ethics.
Adams also made the point that the introduction of new witnesses at such a late stage could backfire. ‘I have, myself, called a second witness only to find out that I was better off without one,’ she said. Her committee had unanimously decided that ‘the prejudice suffered to [Mapholisa’s] case would probably, in this particular scenario and in these circumstances, be more severe than that for [Noakes], and not quite as prejudicial to the respondent at this stage, as may seem to the public or the untrained eye’.
With that, Mapholisa called Madube, who was clearly intended to address an ethical dilemma in the HPCSA’s case: the fact that the Fourth Preliminary Committee of Inquiry had secured a report from Vorster as evidence against Noakes, but had failed to share it with him before charging him.
Madube testified that the use of ‘secret’ reports was routine for HPCSA committees. His reasoning: committee members may not always have the specialised knowledge required to determine whether a complaint warrants a charge, in which case they are entitled to request an opinion from an expert to as
sist them in ‘arriving at an amicable or full conclusion’. Madube described such documents as ‘for the committee’s eyes only’. ‘It is a confidential document,’ he said. The practitioner ‘cannot respond to the document’ because it ‘is not for him’. Therefore he should ‘not have knowledge of the document’.
In cross-examination, Van der Nest asked Madube to point out where in the HPCSA’s rules governing preliminary inquiry committees it allowed evidence to be kept secret from health professionals. When Madube continued to insist that the committee could gather evidence for ‘its eyes only’, Van der Nest dismissed his response as ‘staggering’.
Van der Nest asked Madube whether he knew the Latin phrase audi alteram partem (let the other side be heard). It is a common law principle that encompasses the right to a fair hearing and the opportunity to respond. Madube said he knew the phrase, but that it did not apply to HPCSA preliminary inquiry committees.
With barely disguised impatience, Van der Nest again asked Madube: ‘Which is the secrecy provision in this section that permits [the HPCSA] to do that – please tell me the words?’ Madube became belligerent and insisted that there was no ‘secrecy provision’. Van der Nest charged that the HPCSA had considered it ‘impractical, inconvenient and costly’ to give Noakes the opportunity to see and respond to evidence against him before charging him. In response, Madube ventured the opinion that if Noakes wasn’t happy with the law as the HPCSA applied it in this case, he could contest it in the Constitutional Court.
Remarkably, neither Mapholisa nor Madube appeared to see anything unethical in a committee hiding evidence from Noakes before charging him. But the most remarkable part of Madube’s evidence was yet to come. It would show that Adams’s comment about the potential for a surprise witness to backfire was prescient.