by Tim Noakes
Madube made passing reference to a file on the prosecution team’s table. The file had not been entered as evidence. When Van der Nest asked to see it, Mapholisa agreed. The file was duly entered as evidence and the cross-examination continued. After a short while, Van der Nest broke off to say that he had noticed ‘something happening on the other end of the table’. Dr Janet Giddy had also noticed that ‘something’ was up: former HPCSA ombudsman and member of the prosecution Dr Abdul Bharday was removing pages from the file.
Van der Nest objected, saying that it should be kept intact for the defence team. Adams agreed and instructed Bharday to stop. It was the first indication that there was something special about the file’s contents.
What does not appear in the transcript of the day’s proceedings is the unseemly skirmish that took place later, when Madube refused to hand over the file to Noakes’s attorney, Adam Pike. Mapholisa claimed there were duplicates in the file that the HPCSA simply wanted to remove to save the defence some time. Van der Nest did not believe him and insisted that Madube hand over the complete file to Pike. Madube’s obvious reluctance and Mapholisa’s obvious discomfort were further signs that there was something in the file that they did not want the defence to see. I started calling it the ‘dodgy dossier’, and so it turned out to be, as the next hearing session showed.
* Rule 36(9)(b) states: ‘No person shall, save with the leave of the court or the consent of all parties to the suit, be entitled to call as a witness any person to give evidence as an expert upon any matter upon which the evidence of expert witnesses may be received unless he shall not less than ten days before the trial, have delivered a summary of such expert’s opinion and his reasons therefor.’ Uniform Rules of the Court, available at http://www.justice.gov.za/legislation/rules/UniformRulesCourt[26jun2009].pdf.
11
The Start of the Third Session: February 2016
‘When truth is replaced by silence, the silence is a lie.’
– Yevgeny Yevtushenko, Soviet and Russian poet
Cape Town is the home of Banting in South Africa. It is where Professor Tim Noakes lives, and from where he singlehandedly set off the Banting revolution in 2011. The revolution spread quickly across a sick, fat and hungry nation, gathering millions of followers along the way. Reports began to pour in of people with obesity, T2DM and heart disease reversing their symptoms and, in many cases, coming off all medication simply by changing to low-carb, high-fat foods.
By the time the February 2016 hearing session rolled around, the flood of reports was drowning out the orthodox medical and dietetic opposition to LCHF. The power of the anointed was giving way to the wisdom of the crowds. You wouldn’t have known it from the many doctors, dietitians and academics who still clung to their belief that diet can never effectively replace drugs in the treatment of life-threatening, chronic diseases. Many had chosen to involve themselves in the HPCSA’s case against Noakes, and the February session would reveal just how murky their involvement had become.
Noakes’s lawyers had gone through the file that the HPCSA had reluctantly handed over at the end of November 2015. Among other documents, it contained a compromising chain of email correspondence between members of the HPCSA’s Fourth Preliminary Committee of Inquiry. It made the HPCSA look less like a ‘rigid creature of statute’, as Mapholisa had described it when trying to block the application to call a witness via video link, than a spiteful, Gollum-like creature hiding in a misty mountain cave, plotting to silence Noakes once and for all. Anyone reading it might more readily agree that the conspiracy theory of an organised campaign against Noakes was rapidly becoming fact.
The Fourth Preliminary Committee of Inquiry had a simple enough task: investigate the complaint that Strydom had lodged with the HPCSA against Noakes, and decide whether the complaint warranted a charge. To this end, they held two meetings. The first was in May 2014. At the second, in September 2014, the committee decided to charge Noakes. The significance of the delay between the first and second meetings becomes clear in the chain of email correspondence in the file, and points to what Noakes’s lawyers diplomatically called potentially ‘highly irregular’ conduct on the part of the committee’s members. That’s a euphemism for unethical, and possibly illegal, actions in breach of the HPCSA’s own rules and Noakes’s constitutional rights.
In particular, the emails showed that committee members had involved themselves in the case against Noakes despite being functus officio. That’s the legal term for ‘having performed their office’. The committee had discharged its duty by deciding that the HPCSA should charge Noakes, and that should have been that. All members should have returned to their day jobs as academics. Instead, as the emails revealed, some went to great lengths to boost the chances for a guilty verdict. In other words, certain committee members appeared to have acted ultra vires – ‘beyond their legal powers or authority’.
Unsurprisingly, given the large number of UCT academics involved in the ongoing and public attacks on Noakes, two of his former UCT colleagues had been on the committee: emeritus professor of surgery and former executive of the South African Medical Association John Terblanche; and UCT psychiatry professor and then SAMA president Denise White, who has since passed away. Interestingly, White was also a member of the HPCSA’s Medical and Dental Board that first considered Strydom’s complaint and decided to pass it on to the Fourth Preliminary Committee of Inquiry. I would have thought that was a clear conflict of interest.
The committee chair had been Professor Amaboo ‘Ames’ Dhai, director of the Steve Biko Centre for Bioethics at the University of the Witwatersrand. She is a medical doctor and a member of the Fellowship of Colleges of Obstetricians and Gynaecologists of South Africa, and has a master’s degree in law and ethics. Wits describes her as ‘an ethicist of international standing who can be credited with entrenching bioethics as an integral aspect of health sciences in SA’.1
Dhai’s emails appeared to show her lack of understanding of basic legal principles, particularly the audi alteram partem principle (that all accused persons have the right to see all available evidence before being charged). After the Fourth Preliminary Committee of Inquiry’s first meeting in May, Dhai had commissioned the Vorster report on the background to Strydom’s complaint. As we know, Dhai did not let Noakes see and respond to the report before her committee used it as evidence in its decision to charge him in September 2014. Most alarming, however, was that Dhai appeared to see nothing wrong or unethical in keeping the Vorster report secret from Noakes.
The emails also showed how she exceeded her brief as committee chair. In one email, for example, she tried to tell Mapholisa how to conduct his case, even whom he should enlist to assist him, and bluntly told him to employ external lawyers. In another, Dhai refused to provide Mapholisa with the reasons for the committee’s decision to charge Noakes, because, she said, Mapholisa had disregarded her ‘instruction’ to instruct external legal counsel. In yet another email, she suggested that the June 2015 hearing should not go ahead because the HPCSA was not ready to proceed. Clearly, Dhai believed that she had wide-ranging power and influence over the HPCSA’s case.
Mapholisa appeared not to appreciate Dhai’s inference that he was not up to the job. He ignored her instructions, ‘to his credit’, as Van der Nest later commented. Evidence on the record showed that Mapholisa had even threatened Dhai with a subpoena if she did not give the reasons for the committee’s decision. Joan Adams described that action as ‘brave’ for someone in Mapholisa’s position.
I emailed Dhai for comment. She did not reply. I then emailed Wits University’s vice chancellor, Professor Adam Habib, cc’ing Dhai. Habib replied, but only to say that Dhai had assured him of ‘no wrongdoing’. I emailed back to say that, in my opinion, that wasn’t how universities should respond to serious accusations of misconduct by their academics. I suggested that it required a proper investigation. Habib did not reply to any further emails.
Terblanche’s emails were j
ust as illuminating. They revealed his enthusiastic attempts to mobilise UCT colleagues to give evidence against Noakes. Terblanche, too, was acting beyond his brief as a member of the preliminary inquiry committee. In one email, Terblanche offered to ask Professor Wim de Villiers, dean of UCT’s Faculty of Health Sciences at the time, to give expert testimony against Noakes. In another, he suggested Noakes’s friend and mentor Lionel Opie. Both De Villiers and Opie were signatories of the infamous UCT professors’ letter, published in the Cape Times in August 2014. As it turned out, neither De Villiers nor Opie obliged. That was probably a smart move, given the ethical questions that the letter raised, as well as claims that it was a form of academic bullying. In another email, Terblanche helpfully included a copy of the professors’ letter and suggested that the committee use it as evidence against Noakes. Interestingly, the email chain shows that none of Terblanche’s fellow committee members objected to him exceeding his authority in this manner.
Terblanche also suggested using the contents of ‘The Big Fat Debate’, a section on UCT’s Division of Human Nutrition website.2 It’s difficult to see much debate, robust or otherwise, on the site. What is easier to spot is bias in favour of the typically prescribed LFHC ‘prudent’ diet. It includes research by departmental head Nelia Steyn and Marjanne Senekal. Both have links to the sugar industry and the Coca-Cola front organisation International Life Sciences Institute.3
Senekal was a signatory of the UCT professors’ letter, a co-author on the Naudé review, and later agreed to become a consultant for the HPCSA after its case started falling apart at the end of November 2015. The second section on ‘The Big Fat Debate’ is titled ‘Further evidence for healthy balanced diets’, and the first link is to the Naudé review published in PLoS ONE in July 2014.4 The site does not include a link to the re-analysis of the Naudé review by Noakes and Dr Zoë Harcombe, published in the SAMJ in December 2016.5 They found the Naudé review to be riddled with so many errors as to be fatally flawed.
‘The Big Fat Debate’ was quick to link to the UCT professors’ letter, but failed to even mention Noakes’s vehement and robust reply. Interestingly, the link to the letter has subsequently vanished, but all the remaining links relate exclusively to research favouring LFHC, and mirror much of the evidence that the HPCSA’s expert witnesses presented against Noakes and Banting. For example, the very first section on the site’s home page, dedicated to ‘Evidence for a healthy and balanced diet’, contains links to all 13 articles in the ‘Food-Based Dietary Guidelines for South Africa 2013 No. 3 (Suppl)’, published in the South African Journal of Clinical Nutrition (SAJCN).6 The introduction, by North-West University nutrition professor Hester Vorster, the first expert witness called by the HPCSA, extols the virtues of South Africa’s official dietary guidelines, of which she was an author.7 ‘The Big Fat Debate’ ignores ongoing controversy in scientific circles around the lack of science to support these low-fat, high-carb guidelines.
The SAJCN is a joint publication and mouthpiece of ADSA and the Nutrition Society of South Africa (NSSA). Vorster is a lifetime ADSA member and a member of the NSSA, as are the HPCSA’s second expert witness, Salome Kruger, and many others involved in active opposition to Noakes.
Nelia Steyn is responsible for the second article on the site, in which she gives uncritical support for the dietary guidelines.8 Vorster again writes the fourth article, this time on one of the most hotly contested aspects of dietary advice, especially for the country’s poor: ‘Make starchy foods part of most meals’.9 The tenth article, by Cornelius Smuts and P.W. Wolmarans, addresses dietary fats. Titled ‘The importance of the quality or type of fat in the diet’, it does say that saturated fats ‘will remain an integral part of the human diet’; however, it then pursues the conventional fat-phobic line against saturated fats, favouring foods high in polyunsaturated and monounsaturated fats, and vegetable oils.10 All the articles support the premise of the diet-heart hypothesis that saturated fat causes heart disease. This hypothesis was a major pillar of the HPCSA’s case against Noakes.
The second section on ‘The Big Fat Debate’ also includes a link to a 2013 JAMA article titled ‘A call for an end to the diet debates’.11 That probably says more than the academics intended about the real motivation behind their website. ‘The Big Fat Debate’ is not a debate at all, and perhaps was never intended to be one. It seems to be nothing more than an institutional attempt to suppress scientific debate by presenting one side of an argument.
At the end of the day, the email chain discovered in the file suggests that the Fourth Preliminary Committee of Inquiry intentionally deferred their decision to charge Noakes while they waited for certain documents – the Naudé review in particular – to be published. The emails all but confirm Strydom’s own admission at the hearing in November 2015, when she said, ‘everybody, all these big organisations were waiting on the publication of this information before we could make any kind of media statement’.
What legal and scientific experts have found most astonishing about the actions of various academics and affiliated universities involved in the case against Noakes is their deafening silence. I personally have emailed and placed phone calls to people up and down the universities’ hierarchies, and it appears that those in positions of power and influence have closed ranks. They all seemed willing to defend the indefensible – in effect, to collude in the suppression of evidence and the attempted silencing of one scientist.
When the hearing resumed on Monday 8 February 2016, the HPCSA had recruited new soldiers in its ongoing battle against Noakes and Banting. It had an expensive new team of external lawyers in place, with Katlego Mmuoe of KK Mmuoe Attorneys as instructing attorney, and doctor-turned-advocate Ajay Bhoopchand as counsel. Mmuoe and Bhoopchand would have been aware of the gaping holes in the HPCSA’s case after their witnesses’ cross-examination by Ramdass and Van der Nest, and they would have been briefed on the file’s potential to inflict further damage. But first they had to announce the unexpected loss of a major witness.
Recall how, at the last session in November 2015, HPCSA chief prosecutor Meshack Mapholisa had sprung a last-minute application for two new expert witnesses. At the time, he would only reveal the identity of one: Stellenbosch University psychiatry professor Willie Pienaar. Now it seemed that the other, Professor Jacques Rossouw, would not be appearing. Rossouw had recently retired from the US National Institutes of Health Women’s Health Initiative, but was still employed by the NIH. He is one of Noakes’s most vociferous and vicious critics. Noakes was therefore looking forward to a scientific debate with his arch-enemy on a very public platform. When Bhoopchand announced that Rossouw would not be appearing after all, it was a big disappointment on both sides.
Rossouw should have made enough time to secure a yes-or-no answer from the NIH to attend. The HPCSA had asked him in late January. All the NIH would tell me was that it did not give him permission in ‘a timely manner’. It also said that Rossouw was currently ‘unavailable’ for an interview with me. My freedom-of-information request to the NIH revealed the rest in an email chain.*
Yet seven days before the February hearing, Rossouw was clearly ready and willing to be a witness. He had timeously submitted to the HPCSA a summary of the evidence he intended presenting, and the HPCSA had passed it on to Noakes’s lawyers. So why did he really bale? Rossouw was in Cape Town in late January 2016. In preparation for his testimony, he would have read the transcripts of the November hearing. Like Marlene Ellmer, he would have known that the risk of exposing himself, and his reputation, to cross-examination by Van der Nest and Ramdass was high. Thus, in the end, Rossouw and the HPCSA chose the line of least resistance.
With the Rossouw matter out of the way, Van der Nest began to place on record the contents of the file obtained in November. He told the hearing that after viewing the file, Adam Pike had written to the HPCSA registrar, Dr Buyiswa Mjamba-Matshoba, as well as to Mapholisa and the chair of the Medical and Dental Board, Professor Letticia Mm
aseloadi Moja, asking for information, including the reasons for the Fourth Preliminary Committee of Inquiry’s decision to charge Noakes and all documentation on which that decision had been based.
Mjamba-Matshoba’s response had been surprisingly blunt and obstructionist. Refusing the request, she said that Noakes would have to seek a ruling from the Professional Conduct Committee to order the HPCSA to release the information. Since the HPCSA is the parent body and appoints members to all its committees, it was like a parent passing on responsibility to one child and ignoring the delinquent behaviour of another. Mjamba-Matshoba was blithely ignoring the fact that the HPCSA’s Fourth Preliminary Committee of Inquiry had a duty to provide Noakes with the reasons for charging him.
Van der Nest was forthright in his criticism. He said that the HPCSA was playing a ‘game of cat and mouse’ with Noakes. He applied to Adams for a ruling to compel Mjamba-Matshoba to provide information on three issues: the conduct of the Fourth Preliminary Committee of Inquiry; Dhai’s refusal to provide reasons for her committee’s decision to charge Noakes; and her failure to reveal all the evidence the committee had considered before making its decision. He included subsidiary questions about the influence of outside organisations on the decision to prosecute Noakes. Among them was the South African Medical Association.
This last seemed a reasonable enough request, given the well-documented antagonism towards Noakes and LCHF displayed by many SAMA doctors. The SAMA had also acceded to the demand from a group of ADSA dietitians to withdraw the CPD points it had initially granted for the Cape Town low-carb summit that Noakes co-hosted in February 2015 (see Chapter 1). The SAMA only reinstated the points when the conference organiser, Karen Thomson, threatened legal action.
If there was ever any hope that the HPCSA’s new lawyers would take their client down a less adversarial path, Bhoopchand instantly dispelled it. He objected to Van der Nest’s application, contending that the Professional Conduct Committee did not have the power to instruct Mjamba-Matshoba to comply with its statutory obligations. He claimed that Noakes’s only redress was the High Court. He also contended that Noakes could have applied for any information he wanted using the Promotion of Access to Information Act (PAIA). The purpose of PAIA is to give effect to Section 32 of the Constitution, which provides for the right of access to information. It states that ‘Everyone has the right of access to (a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise or protection of any rights’. The motivation here is to entrench a culture of transparency and accountability in both public and private bodies. It also enables members of the public to exercise and protect all their rights more fully.