The disciplinary hearing by the Health Professions Council of SA (HPCSA) involving Limpopo MEC for Health Dr Phophi Ramathuba has been set down for 29 to 31 August.

The inquiry, which was scheduled for 25 to 27 July, comes after Ramathuba’s diatribe against a Zimbabwean patient in a Bela Bela hospital was captured on video in August 2022. In the video, Ramathuba accuses undocumented immigrants of draining the country’s resources.

Read more in Daily Maverick: Limpopo Health MEC Dr Phophi Ramathuba’s xenophobic, dehumanising diatribe against Zimbabwean patient

Her legal representative, advocate David Madiba, argued on Tuesday morning that the inquiry should be postponed because a pre-inquiry conference had not taken place, there was pending litigation on the matter, and Ramathuba was not available. 

No pre-inquiry

The Regulations Relating To The Conduct Of Inquiries Into Alleged Unprofessional Conduct, in terms of the Health Professions Act, stipulate that to determine the issues in dispute, a pre-inquiry conference must be attended by both parties or their legal representatives at least seven days before the date of the inquiry at a mutually convenient time and venue.

Madiba said that this conference had not taken place because there had been a miscommunication between the two parties about the time of the inquiry.

Pending litigation

In February this year, Ramathuba, a medical doctor, was sanctioned by the HPCSA’s Medical and Dental Professions Board. The board found there was evidence of unprofessional conduct by Ramathuba in violation of regulations under the Health Professions Act and imposed a penalty of “caution and reprimand”. 

It found Ramathuba’s behaviour of “shouting at the bedside of a patient who was vulnerable at the time” – as “unprofessional and unbecoming” of a medical professional.

Ramathuba rejected the January findings and the sanction, according to the HPCSA’s legal adviser, Viceroy Maoka. She wrote to the HPCSA in February this year, challenging it on the basis that it had no jurisdiction over her. The HPCSA disagreed and set the formal hearing dates of 25-27 July.

Read more in Daily Maverick: Unrepentant Phophi Ramathuba to face second inquiry over xenophobic rant at Zimbabwean patient

Ramathuba launched an unsuccessful bid in the Pretoria High Court to stop the disciplinary hearing scheduled for 25-27 July. She said she had conducted the conversation in her capacity as an MEC and not as a medical practitioner. On 2 June, Judge Anthony Millar dismissed the application and ordered Ramathuba to pay the HPCSA’s costs.

“The respondent [Ramathuba] in this matter has now taken a decision that the SCA (Supreme Court of Appeal) be petitioned for leave to appeal, and her reasons are that, given the factual and legal novelty that we contend arise with this matter – a court of law ought to hear the matter and determine whether or not in circumstances such as the current where a person performing her political responsibilities as an MEC should be brought within the jurisdiction of this committee,” said Madiba.

He said that a court should also hear the factual matrix of what was being alleged, and determine whether that even raised professional issues.

No-show from Ramathuba

Despite Ramathuba being aware from 29 March 2023 that the misconduct inquiry would take place this week, she was not present.

“The reason is that she had to travel for official business to Australia. She had to attend an HIV science conference. It is one of the strategic commitments of government and the South African National Aids Council that the province [Limpopo] needed to be part of,” said Madiba.

Premier Stanley Mathabatha would have been the most suitable substitute to attend, but could not as he was unavailable for official duties following the passing of his wife, Maggie Mathabatha, said Madiba.

“[Ramathuba] had to leave the country on that basis … it is not because this inquiry is not important, but because the other commitments that pertained really required her to do so,” said Madiba.

Chair of the professional conduct committee, retired Judge Jeremiah Shongwe, said the committee granted the postponement and each party would pay their own costs.

Shongwe added the provisions that, on or before 29 August, the parties must have served and filed the minutes of the pre-inquiry conference and that the inquiry on 29-31 August would proceed with or without Ramathuba’s presence.

Limpopo health department spokesperson Neil Shikwambana confirmed that Ramathuba was in Australia. Shikwambana said the department would not comment on HPCSA issues as they were ongoing.

“The MEC is the political head of the department of health, who has a responsibility to work with the national department of health to develop policies and oversee their implementation and those policies must be scientific. This conference is relevant for her to attend,” said Shikwambana.

“The MEC is leading the Limpopo delegation… to the conference and an impression should not be created that the MEC is running away from [a] statutory body which she respects as a professional and she will avail herself. It’s just unfortunate that there were double bookings and through her legal team, she did apologise for her unavailability,” Shikwambana said.

National health department spokesperson Foster Mohale said Ramathuba had a right to represent Limpopo at the conference.

“The provinces also have the right to send the delegations from their side since they are also dealing with HIV in their health programmes. They don’t necessarily need to go and represent the country but they can represent the province.”

‘Demonstration of contempt’ 

The ongoing HPCSA inquiry into Ramathuba’s conduct stems from a complaint against her by Kopanang Africa Against Xenophobia and Lawyers for Human Rights (LHR). The complaint is supported by seven civil society organisations including the Treatment Action Campaign, Section27 and the Helen Suzman Foundation.

Sharon Ekambaram, head of the Refugee and Migrant Rights Project at LHR, said Ramathuba’s absence demonstrated the contempt she and her office had for the constitutional values of respect for human rights and dignity of all who lived in South Africa.

“She is also trampling on the Patients’ Rights Charter – with specific reference to the clause in the preamble… ‘to ensure the realisation of the right of access to health care services as guaranteed in the Constitution of the Republic of South Africa (Act No 108 of 1996), the Department of Health is committed to upholding, promoting and protecting this right and therefore proclaims this Patients’ Rights Charter as a common standard for achieving the realisation of this right’,” said Ekambaram. DM