Court dismisses Limpopo MEC for Health’s attempt to quash inquiry into her ‘killing my health system’ remark

Limpopo MEC for Health Dr Phophi Ramathuba has failed in her attempt to put a stop to a Health Professions Council of South Africa (HPCSA) inquiry into comments she made to a Zimbabwean patient when she visited Bela Bela Hospital last year.

A disciplinary inquiry had been set down for July to probe complaints against her emanating from the conversation which was widely broadcast.

While Pretoria high court Judge Anthony Millar, in his judgment refusing to grant Ramathuba an interdict, did not detail the complaints, it is public record that she told the patient that Zimbabweans were putting a huge strain on the provincial health system.

She said: “You are killing my health system. It’s unfair.”

Ramathuba brought the application in her capacity as the MEC for health, in two parts, divided into Part A and Part B.

Part A was for an interdict pending Part B — a review application in which she would seek an order declaring the decision of the HPCSA issued against her on 9 February 2023 as unconstitutional, unlawful and invalid, and declaring that the HPCSA lacks jurisdiction over the conduct of the applicant as an MEC.

Only Part A was considered by Judge Millar this week and he ruled on Friday.

In his judgment, he said many complaints had been laid against Ramathuba with the HPCSA as a result of the conversation.

Ramathuba disputed the complaints, both in her capacity as the MEC for Health and as a medical practitioner.

“It is not in issue that the applicant has at all material times been registered as a health professional and remains so and the HPCSA is the custodian of the medical profession,” Judge Millar wrote.

The judge explained that the HPCSA has a two-stage complaints procedure. The first is a preliminary inquiry, which may result in the complaint being resolved. If it is not, it is referred to a formal inquiry.

Judge Millar said a preliminary committee had considered the complaints at a meeting at the end of January. The committee had resolved that the applicant was guilty of unprofessional conduct but that it was only a “minor transgression” and that she should be cautioned for unprofessional behaviour, unbecoming of a medical professional for “shouting at a patient’s bedside as the patient was vulnerable at the time”.

The HPCSA, in a letter to Ramathuba, said the acceptance of this penalty would not constitute a conviction and would not be reflected against her name. The matter would be regarded as finalised.

But Ramathuba refused to accept the finding. She wrote to the HPCSA in February this year, challenging it on the basis that it had no jurisdiction over her.

The HPCSA disagreed with this, and set the formal hearing dates.

“The applicant does not want the inquiry to proceed or to attend it … she says she conducted the conversation in her capacity as an MEC and not as a medical practitioner,” Judge Millar said.

“The crisp question is, is the applicant in her capacity as MEC a separate persona from the applicant as a medical practitioner. The office of the MEC is a political one whereas her status as a medical practitioner is a professional one.

“The holding of political office and remaining registered as a medical practitioner are not mutually exclusive. The one hallmark of both is that the individual concerned accepts that they are, and subject themselves to being accountable for their actions.

“It seems to me to be a wholly contrived and self-serving assertion that conduct is determined depending upon ‘which hat a person is wearing at the time’,” the judge said.

“This is simply not consistent with our constitutional values or the law. There is to my mind no distinction to be drawn between the different offices a person holds and their conduct.”

He said Ramathuba had maintained her registration with the HPCSA so she had no right to avoid its jurisdiction. If she had de-registered then the situation would be different.

“Her refusal to accept the finding of the preliminary committee means that the entire matter will serve before a different committee … she will have the opportunity to raise whatever challenge she wishes at the inquiry.

“Delaying the matter unnecessarily ending a review does not serve the interests of any of the parties.”

Judge Millar dismissed the application and ordered Ramathuba to pay the HPCSA’s costs. DM

First published by GroundUp.