Pretoria - Limpopo MEC for Health Dr Phophi Ramathuba has failed in her urgent court bid to interdict the Health Professions Council of SA (HPCSA) from proceeding with its misconduct inquiry against her for remarks to a foreign patient last year.
Ramathuba turned to the Gauteng High Court, Pretoria, to urgently stop the hearing scheduled for July 25-27. She wanted this order pending a later application to overturn the decision by the HPCSA to hold an inquiry.
The MEC made headlines in August last year when a video went viral in which she made remarks to a Zimbabwean patient at Bela Bela hospital. In the clip posted on Twitter, Ramathuba said only in South Africa did people come into the country and expect treatment.
Ramathuba said in her application that as MEC, she did not fall under the jurisdiction of the HPCSA. But Judge Anthony Millar, in turning down her urgent application, said she “simply has no right, let alone a prima facie right”, to avoid the jurisdiction of the HPCSA in circumstances where she has maintained her registration as a doctor in terms of the Health Professions Act.
In her application she said the watchdog body over the medical profession cannot touch her, as it “lacks jurisdiction over her as a member of the executive arm of government”.
Judge Millar said it was not in issue that she has at all times been registered as a health professional and remains so. He said the HPCSA was the custodian of the medical profession, and “the guardian of the public interest insofar as the public is affected by the conduct of members of the profession”.
The complaints were sent to her in November last year for her consideration and response. A preliminary committee of inquiry met in January and it was decided that she had made herself guilty of unprofessional conduct, but it was only a “minor transgression”.
The HPCSA handed her an olive branch and said that as a penalty she could be reprimanded and pay a fine. It also said this would not be reflected on her medical record. If she did not respond or accept this, an inquiry into her conduct would be held, it said.
Ramathuba did not reject or accept this, other than to say that the HPCSA had no business with her as an MEC. The HPCSA told her that the inquiry would go ahead.
In her bid to stop this, she told the court that she conducted the conversation with the patient in her capacity as MEC, and not as a medical practitioner, and for that reason it was not subject to the HPCSA’s scrutiny.
She also cited her rights to equality, freedom of expression and the political right to participate in political activities of the political party of her choice as reasons why she should not face the inquiry.
Judge Millar said despite asserting the infringement of these rights, no basis was laid for this. “The question is this – is the applicant in her capacity as MEC a separate persona from the applicant (Ramathuba) as a medical practitioner? The office of the MEC is a political one, whereas the applicant’s status as a medical practitioner is a professional one,” the judge said.
She was registered as a medical practitioner and thus subject to the HPCSA before she was appointed to the office of MEC, he said.
“The holding of political office and remaining registered as a medical practitioner are not mutually exclusive … in both fields the individual accepts that they are, and subject themselves to, being accountable for their actions.”
Judge Millar added: “It seems to me to be a wholly contrived and self-serving assertion that conduct is to be determined depending upon ‘which hat a person is wearing at the time’..”
An olive branch had been offered to the MEC, which she did not accept, he said. She could now raise her challenges at next month’s inquiry. Stalling the inquiry pending the review application was in nobody’s interests. “The holding of the inquiry is where the remedy lies.”
Pretoria News