Graça Machel vs Vejay Ramlakan: Round one

Judge Shongwe rules that HSPCA committee hearing be in public, but grants Mandela's widow a postponement

On Monday, Dr Vejayand Indurjith “Vejay” Ramlakan appeared before a six-person tribunal, chaired by Judge Jeremiah Shongwe, of the Professional Conduct Committee of the Health Professions Council of South Africa (HPCSA).

The tribunal was only able to deal with two applications peripheral, but related to, the main matter – a complaint by Graça Machel that Ramlakan had abused HPCSA ethical rules by breaching doctor-patient confidentiality in his book, Mandela’s Last Years: the story of Nelson Mandela’s final journey, by the head of his medical team (July 2017).

The first application was the HPCSA request, on behalf of Machel, that the proceedings to be held in camera; and the second a request that the hearing be postponed because Machel was unavailable.

Following detailed argument related to both applications, the panel dismissed the application for the matter to be heard in camera but allowed for the matter to be postponed to September 9-13 so that Machel could be there.

Advocate Harry van Bergen, counsel for the pro-forma complainant (i.e., the HPCSA, acting on Machel’s complaint), asked that the proceedings be held in camera to protect the information divulged by Ramlakan from being further disseminated because, as Machel had stated, “the publication of the book [had] caused me and my family great distress” and “the contents of the book [would] be traversed during the proceedings, leading to further disclosure”.

Van Bergen said that Ramlakan’s argument, “supported by the purported expert evidence of Jeremy Gordin,” that the proceedings would be in the public interest, was “misplaced” – because public interest and journalists were not relevant to the matter. Due to his professional relationship with a person or group of people, a doctor should not make “disclosures,” whereas a journalist was likely to do so.  “Mr Gordin,” he added, “does not meet the requirements of an expert witness ... because he seems to pronounce on issues pertaining to the medical profession, which he is not competent to do.”

Piet Louw SC, for Ramlakan, argued that the principle of open justice “is recognised by three intersecting provisions of the Bill of Rights .... Dr Ramlakan’s dignity has been severely impeached by the charge that he is guilty of professional misconduct while the dignity of every person with an interest in the legacy of President Mandela will be impeached by an order that they may not hear what has been decided in these proceedings ...”

Louw said that the prosecution of Ramlakan, “as set out in the affidavit of Mr Gordin,” was a matter of great public interest and was not only newsworthy but required in-depth analysis and debate “outside the Tribunal itself”.

He added that most of the material published by Ramlakan had in any case previously been in the public domain and the book itself was still electronically available for those who wanted to read it. “The book has not been banned ...the horse has bolted ... it is rather incredible for [the HPCSA/ Machel] to require the proceedings to be held in private whilst the publication that the proceedings are about is public,” Louw said.

Machel, Louw continued, was “concerned” that the book portrayed her in an unflattering light and exposed tensions in the Mandela family. “These proceedings cannot be used as an extension of Ms Machel’s wishes to keep her own affairs private. ... She has every right to apply for the appropriate relief against [Ramlakan], but she cannot require the Tribunal to do so.”

Louw also told the Tribunal that one of the reasons for Ramlakan having written the book was to refute claims that Mandela had received inferior medical care during his last days, as were to be found, for example, in Zelda la Grange’s book, Good Morning, Mr Mandela (2014). 

In his brief response to Louw, Van Bergen said the headline that had appeared on Gordin’s Politicsweb review of Ramlakan’s book, “The Disgraceful Banning of Mandela’s Last Years”, demonstrated “prima facie bias” against Machel and he also noted that Le Grange was not under “medical sanction,” so what she had written was not an issue.

In a brief ruling, Judge Shongwe said the panel had agreed unanimously not to hold proceedings in camera “in the interests of justice, in the interests of the public, and so that [other] individuals would not be excluded”.

In the application for a postponement, Van Bergen explained in detail why Machel could not be present and said her absence was not an attempt to derail the proceedings; it had simply been unavoidable. Machel, he said, was unavailable due to various demands on her time, notably ones relating to the catastrophic damage in Mozambique caused by Cyclone Idai.

Louw responded that inter alia two arguments would be raised by him in defence of Ramlakan: justification [of publication] due to the public interest and justification by consent, i.e. permission for publication had been given to Ramlakan by Makaziwe Mandela, 64, Madiba’s daughter from his first marriage to Evelyn Mase. Additionally, the late Winnie Madikizela-Mandela also apparently supported publication of the book. Therefore, Machel’s presence was in fact irrelevant to the proceedings; they could continue without her.

Louw said Machel would of course be needed as a witness in respect of “the next-of-kin” issue (who exactly was Mandela’s next-of-kin?), but that this issue could be dealt with separately, i.e. on another date. Louw contended that, by not being available and asking for a postponement, Machel was “trifling” with Ramlakan (who would have to pay for his legal team), the Tribunal and even her own attorneys.

In a brief ruling, Judge Shongwe said the panel had agreed unanimously to allow a postponement: “It’s in the interests of justice that we hear Ms Machel.”

In July 2017, Ramlakan’s book was published by Penguin Random House South Africa but then “voluntarily” withdrawn from circulation by the publisher (there was no court order), ostensibly because the “Mandela family” had not given Ramlakan permission to publish the book and much of the material in it.

Ramlakan, a medical doctor, was from 1977 a member of Umkhonto we Sizwe, spent five years imprisoned on Robben Island and, having been promoted to the rank of Lieutenant General, served as the Surgeon General of the SANDF, in which position he was appointed overall head of the unit responsible for the late president’s health care.

Machel alleges that Ramlakan published at least seven “types” of information that were a “flagrant breach of the ethical duty of confidentiality owed by Dr Ramlakan to his patient, President Mandela”; that he did not seek consent from her, Machel, who is “President Mandela’s next of kin” nor from the “executors of the estate of President Mandela”; and that the book was an even “more egregious” breach of confidentiality because Ramlakan did so “for profit”.