NEWS & ANALYSIS

The Tygerberg Kangaroo Court comes a cropper

William Saunderson-Meyer writes on the final vindication of the three doctors accused of theft

JAUNDICED EYE

A vindictive, protracted and costly campaign by Western Cape Health against three young doctors for “unlawfully removing two blue chairs with the intent to permanently deprive Tygerberg Hospital of its possessions” is at last over. 

And it ends in a deservedly humiliating defeat for the over-zealous bureaucrats. 

After an appeal by the doctors to the sectoral bargaining council, the department’s earlier heavy-handed disciplinary sanctions have now been ruled “substantively unfair” and struck down in a finding just released. There may yet be a postscript, since the issue of further compensatory damages was beyond the remit of the council. Civil litigation could follow.

The Commissioner Gail McEwan further ordered the expungement of the theft finding from all records. Aside from ruling that there had been no offence and that the original departmental findings were incorrect, as well as unsupported by the evidence, McEwan allowed herself a sly dig at the ludicrous scenario of well-paid doctors, in broad daylight and under CCTV watch, stealing two ugly, broken chairs and then calling on the assistance of the hospital’s security guards to load them into their personal vehicle. 

“It is highly unlikely that two professional people would have wanted to use the two chairs at their home in the up-market suburb of Panorama,” she observes drily in her summation.

The saga, a storm-in-a-teacup that nevertheless spotlights failings in Western Cape Health’s attitude to its professional staff, as well as a cavalier approach to administrative transparency, has been running for over a year.

The department had fired Dr Mathew de Swardt and suspended Dr Kim Morgan and Dr Abdurragmaan Domingo in the final year of their specialisation, after they “stole” the broken chairs. The chairs, sans some vital parts like bolts and armrests, had been written down in the asset register to a nominal value of R100 and then dumped on an outdoor heap of discarded equipment, furnishings and building rubble. 

There they were spotted by one of the doctors during a smoke break. They decided to fix the chairs for use in the staff tea-room — dubbed “the dungeon” for its dank and dingy appearance — which they had been renovating out of their own pockets. As De Swardt explained it with plaintive naïveté in his evidence, “I thought I was doing something nice.”

That’s not how the Tygerberg apparatchiks saw it. The “permission” given by one of the administrative workers, who told them to hurry, since a bakkie was coming to cart away the rubbish, was disputed. In any case, forms had not been completed timeously; signatures not obtained in triplicate. 

When it was made clear to the trio that they had not followed hospital administrative and security protocols, they immediately returned the chairs and assumed that was the end of the matter. To their consternation, some months later the hospital bosses laid formal charges of theft at the local police station.

Morgan was hauled out of surgery when cops arrived to arrest the three. But the police left empty-handed, bemused and no doubt irritated at the waste of time, when it was pointed out by the medical superintendent that the chairs had never been stolen and were, in any case, back on the rain-soaked rubbish pile.

Thwarted in their attempt to get the desperado decorators behind bars, the bureaucrats upped their internal campaign of pettiness and poison. A full eight months after the heist-that-never-was, a disciplinary inquiry headed by a transparently pliant outside consultant used regularly by the department, Ms Shameem Modack-Robertson, found the three guilty of theft, with the sentence being the firing of the criminal mastermind, De Swardt, and suspensions without pay for his sidekicks. 

At a stroke, De Swardt was out of work. Although Domingo had by now left Tygerberg, none of them would again be able to find public sector employment, after having been labelled thieves. They also faced the prospect of disciplinary sanctions by the Health Professions Council, for bringing the medical profession into disrepute

Fortunately, the public reaction was immediate and it was incendiary.

Perhaps it was because the careers — more than a dozen years of gruelling training — of three sorely needed state doctors were being so casually destroyed. Perhaps it was because of the tenor of administrative spitefulness — the moment that the disciplinary finding was released, Morgan was bundled out of the hospital post-haste, not even being allowed to complete her surgical shift.

Whatever it was, Western Cape Health was within hours cowering under a wave of criticism and disbelief, both locally and from the South African diaspora, as well as from medicine’s professional societies. The department’s response was typical of the bully confronted: it hastily backed down. 

Within 48 hours, the Democratic Alliance’s provincial health minister, Dr Nomafrench Mbombo, had reversed the firing and suspensions. Attempting to salvage some tattered dignity from the disaster, she announced that instead, all three were to be given written final warnings.

De Swardt and Morgan, who had been represented throughout pro bono by Michael Bagraim, a well-known Cape Town labour lawyer and, incidentally, also a DA MP and the party’s shadow national minister of Employment and Labour, then approached the public health sectoral bargaining council, determined to remove the theft slur on their employment records. There Advocate Michael Crowe took up the cudgels, in an improbably long three days of hearings before Commissioner Gail McEwan. 

Morgan explained to the bargaining council that the main reason for declaring the dispute was that she wanted to correct the label that had been attached to her name. “Morgan felt she was unfairly treated as the investigating officer had not applied her mind to the facts of the case. The findings were grossly biased and the sanction appears to have been premeditated before the disciplinary process took place,” the finding reads.

Examining this most recent record of proceedings, I can understand why Western Cape Health has steadfastly refused to release the transcripts and records of the earlier hearings, despite my having the permission of the affected doctors. Throughout all of them — the recordings of the original hearings were eventually leaked to me — run an unpleasant strain of arrogance and pettiness. 

At one stage, having failed to bring the department’s own transcripts of the disciplinary hearing, Abraham Solomons, its assistant director of labour relations, challenges the authenticity Morgan’s “painstaking” transcript. Nor would he countenance the De Swardt’s transcription. After all, neither was “a registered transcriber”.

In the end, the doctors’ have won. Their victory, however, comes after more than a year of stress, uncertainty and humiliation. Bagraim warns against viewing this as “a trifling matter”. 

“Lives would have been destroyed. These are doctors who, unusually, are dedicated to working in the public sector and now would have been excluded from doing so. At the same time, the criminal finding of theft would also have prevented them from working abroad.”

The department, however unrepentant it clearly remains, has lost a lot. Aside from substantial financial costs and the waste of energy on something that was obviously mischievously trumped-up, the treatment of the Armchair Gang does not reflect well on the reputation of Western Cape Health, its executives, and its minister. 

But this was only a single incident. Perhaps an anomaly. So I was piqued to look for a pattern in the charges, verdicts and sanctions stemming from the hospital’s other disciplinary actions against professional staff, citing the Public Access of Information Act to gain access. 

Although, statutorily, PAIA applications have to be dealt with within 30 days, the months have come and gone. I correspond regularly with the media relations person, Nomawethu Sbukwana, copying her bosses, Marika Champion, head of communications and Douglas Newman-Valentine, the head of ministry. I write also to Eugene Reynolds, who is the information officer and tasked with dealing with PAIAs.

Sbukwana, amiable but resolutely ineffectual, acknowledges one in three emails. The bosses, steadfastly indifferent to incompetence and/or intransigence, make zero response. Reynolds, also zero.

Nothing has happened and clearly nothing is going to happen. No accountability. No need to rule against a PAIA application if you simply ignore it.

Just a week ago, Mbombo told the media that she opposed National Health Insurance because it would make Western Cape Health “useless and dysfunctional” by taking away the role of the department’s senior managers. 

Nope, Dr M. Not possible. They’re already useless and dysfunctional. And very comfortable with that, too. 

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