Most of us live our lives without having to see the inside of a courtroom.
That’s fortunate. As lawyers sadistically like to point out to their clients, usually after pocketing their fees, is that no matter how cut and dried the case might seem on paper, anything can happen once you take your stand before the bench.
But most miscarriages of justice aren’t the fault of the courts. They are perpetrated not by robed judges but by many thousands of faceless bureaucrats, at all levels of government, who have wide delegated powers to impose fines, refuse permissions, and generally ensnare in red tape, the hapless citizenry they’re notionally meant to serve.
Worse still, if you work for the public service or a corporate entity and fall foul of those petty tyrants of what is laughably called the “human resources” department. These managerial skivvies can destroy careers at the stroke of a pen in disciplinary hearings that are often little more than kangaroo courts set up to execute personal or organisational vendettas.
The only remedy for such administrative injustices is a protracted process of appeals, starting internally and then wending their way through dispute resolution, labour courts, and ultimately into civil litigation. It is an emotionally sapping and ruinously expensive path, so no matter how righteous their cause, not many elect to go the distance. Instead, they reluctantly bow before injustice.
A recent example how wrong things can go with internal disciplinary processes is the tale of the three young Tygerberg Hospital doctors who were variously given final warnings, suspended and fired for “stealing” two broken armchairs that had been tossed onto an outdoor rubbish heap. Their naïve intention had been to repair the chairs for use in their dingy anaesthetics tea room, which they were refurbishing at their own cost.
The sanctions imposed on the Tygerberg three would effectively have ended their medical careers, laying waste a dozen years of expensive medical training. They were, however, fortunate in that although their initial internal appeals had been dismissed, the case became a public cause célèbre because of the grossly disproportionate punishments.
As is the instinctive response of any creepy-crawly when their dank hidey-hole is exposed to light, the Western Cape Health Department (WCHD) scuttled for cover the moment that the public spotlight hit it. A saga that had dragged on for over a year was — after it became a media issue drawing incredulous comment from around the world — resolved within two days, with a hasty WCHD climbdown and a reversal of the disciplinary findings.
Although WCHD refused me access to the full record of these hearings, the audio files and records have since been leaked to me. They have a distinct, disturbing chord running through them: that these doctors should be made an example of, no matter that none of the evidence supported the charges.
There are signs of witness intimidation. The presiding officer goes through contortions, blatantly distorting or ignoring the evidence, in order to deliver a vengeful verdict which, one suspects, was pre-ordained.
Of course, with the subsequent acquittal of the doctors, these issues are now moot and only of historical interest. Or rather, of no consequence until the next time WCHD decides to assemble a disciplinary hit squad.
The administrative bodies that oversee the health sector seem particularly afflicted with incomprehensible inconsistencies. Compare the harsh treatment meted out to the Tygerberg doctors with the lucky escape of another WCHD employee, Dr Srinivasan Govender.
Found guilty by the Health Professions Council (HPCSA) of disgraceful conduct, Govender was last month handed a five-year ban from practising as a doctor, entirely suspended. He was also forbidden from working in any state hospital for four years.
It's not quite the harsh sentence that it appears. Given the suspension of the five-year ban, it’s actually a lighter sentence than that handed to one of the Tygerberg doctors. And the offence was several notches more serious than some impromptu home carpentry to cheer up a dismal hospital tea room.
Govender pleaded guilty to sexually assaulting a colleague, a nurse, in the maternity section of Khayelitsha Clinic, after giving her the drug ketamine to “enhance her mood”. A Labour Court judge found that the nurse — an overly trusting friend of Govender and at the time suffering from post-traumatic stress disorder following a hijack — had “no capacity to give informed consent to any act in respect of her body”.
Those are strong words from the judge. To a layman, they describe an act that should be unravelled in a criminal court, not by WCHD’s inept, in-house quasi-judiciary.
The WCHD’s disciplinary hearing handed Govender a slap on the wrist and allowed him to keep his job. It was only after Western Cape Health MEC Nomafrench Mbombo, to her credit, challenged the finding of her own department in the Labour Court, that Govender was fired.
Embarrassingly for WCHD, just three months later Govender was discovered by the assaulted nurse to be working in various other provincial hospitals as a locum. The department, predictably, blamed the locum agency for placing the sex pest/ ketamine Romeo in the jobs.
The Democratic Alliance-run WCHD is a bit like the Cosa Nostra. It likes to keep its operations murky. For months now, it has stalled my requests for access to the record of both the Govender and Tygerberg hearings, insisting that these are not available for public scrutiny.
It has also, as yet, failed to produce a promised list of the past year’s disciplinary actions that were held under its aegis — a simple enough request, requiring only the charge, the name of the presiding officer, the finding and the sanction. This is standard-fare in organisations that believe in transparent governance, a concept that the DA is very keen African National Congress-run entities, but not the DA, should be compelled to implement.
The sins of WCHD, however, probably pale in comparison to those of the HPCSA, that inept, corrupt and dysfunctional body that is supposed to oversee the medical, dental and allied professions. An indication of how bad it is, is that two presidents have acted against it.
In 2015, President Jacob Zuma appointed an inter-ministerial task team to investigate the shenanigans and failings of the HPCSA. The team made various corrective recommendations, which were met by what the government described as HPCSA “intransigence”.
This year, President Cyril Ramaphosa ordered a Special Investigation Unit probe into the HPCSA. One can only pray that the “probe” will be inserted anally and painfully
The HPCSA is at present engaged on its very own, drawn-out, feud with Dr Jacques De Vos, who has for two-and-a-half years been unable to complete his internship, hence practise as a doctor, because he faces an unresolved charge of unprofessional conduct. De Vos, was charged in 2017, while doing his gynaecology rotation at 2 Military Hospital, because he tried to convince a patient not to undergo an abortion, citing Biblical prohibitions.
While this religious zealotry was no doubt unpleasant for the woman involved, it is not an uncommon situation in South Africa. There are two competing but easily squared sets of rights at issue here — the legal right to termination and the right of the health worker not to take part in the procedure — and they are resolved daily in hospitals and clinics throughout the land, by the application of some common sense.
Why this particular incident ended up with a draconian disciplinary sanction is not clear. For example, although pro-choice organisations regularly highlight intransigence and belligerence on the part of nurses against women seeking terminations, I have been unable find a single case of this nature where a nurse has been charged and suspended for unprofessional conduct.
Even less clear is why, with De Vos, the HPCSA serially brought charges, dropped them, then reinstated them, creating havoc with De Vos’s training. It is, after all, basic to the justice process that the process should be as speedy as possible.
This week De Vos’s attorneys called for the charges to be dropped for once and for all, after another fruitless appearance before an HPCSA disciplinary committee. They cited the failure of the HPCSA, in violation of its own regulations and repeated undertakings, to provide the documents basic to mounting a defence.
Among the documents that the HPCSA will not, or cannot, produce, is a formal letter of complaint against De Vos. Nor has it been able to produce any statement by the alleged complainant. Taken together, it all begins to smell faintly of a political crusade.
Doctors — an increasingly endangered species in SA — will feel aggrieved, also, at inconsistencies as to at what level their professional failures will be addressed. It appears to be in the lap of the gods, as to whether they will have to face the sanctions of their peers in the HPCSA or those of a judge in a criminal court.
Earlier this year, the Gauteng High Court upheld a five-year jail sentence for gynaecologist Dr Danie van der Walt, found guilty of culpable homicide following a woman’s death during a complicated delivery. This is the first jailing of doctor for culpable homicide, a decision with far-reaching implications for the profession, especially in the litigiously fraught specialisations of gynaecology and obstetrics.
As the SA Association for Obstetricians and Gynaecologists said in a statement at the time, “Cases of poor outcome and suspected clinical negligence should be investigated and SASOG respects the findings and verdicts of our courts. [However] obstetrics is a specialty at high risk for unexpected poor outcomes for both mother and child, which cannot always be prevented…
“The sentence passed in this case is of concern, due to the precedent it creates, the plight of skills in our country, as well as the effects on the individual doctor, his community and the medical and obstetrical profession. We further hold the opinion that the complexity and expense of repetitive hearings in different forums place an undue burden on the profession.”
The Van Der Walt case is still wending its way through the judicial mill. He has now approached the Supreme Court of Appeal, so his final fate is yet to be determined. Nevertheless, let’s interesting to compare Van Der Walt’s experience with that of Dr David Sello.
Sello’s gruesome butchery of patients was such common knowledge in his community over a decade of malpractice, that it eventually became the subject of a television exposé by eNCA. Subsequently, the HPCSA found Sello guilty of 26 charges of gross misconduct, including causing the deaths of three patients, and took away his licence.
To date, Sello, unlike Van Der Walt, has not been charged with any criminal offence.
While life for many may appear be a lottery, for those in medical practice it is worse. It’s a rigged game.
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Tygerberg Hospital disciplinary action:
Govender disciplinary action:
De Vos case:
Van Der Walt case:
Sello disciplinary action: