Lawyers for pro-life doctor may turn to High Court as matter drags on

The long-awaited professional conduct hearing against pro-life doctor Jaques de Vos convened on Tuesday and Wednesday this week, only to be postponed to December 9 while the Health Professions Council of South Africa (HPCSA) disciplinary committee considers whether to dismiss two of the charges.

Advocate Keith Matthee SC, for De Vos, who allegedly advised a mother that her unborn baby is a human being, meanwhile advised the committee they may take the matter to the High Court for review.

During the two days of the hearing in Cape Town this week, four grounds were argued as to why all the charges against De Vos should be set aside, says Doctors for Life International (DFL) in a press release.

In essence, these grounds were:
1. The HPSCA did not follow its own regulations before the decision to charge Dr De Vos and thus the hearing
was a nullity.
2. The charges were too vague to enable dr De Vos to prepare his defence.
3. The length of time between when action was first taken against him, April 2017, and the eventual hearing on
29th October 2019, was excessive and for various reasons unfair. In this regard amongst other things the
following was emphasised: All the delays were caused by the HPSCA, without any explanation a single
charge was withdrawn in July 2018, only to be reinstated a few months later in November 2018, only to be
replaced by four wholly new charges some 3 weeks before the first day of the hearing in August 2019, the
severe ongoing prejudice to De Vos who as a result of the conduct of the HPSCA has not been able to
practice as a doctor since June 2017 up to the present day, despite not yet having had a hearing.
4. Bad faith by the HPSCA — numerous examples were given, including the changing of the charge sheets and
the failure to give necessary information in terms of undertakings by it.

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Various decisions of the Constitutional Court and the Supreme Court of Appeal were relied on by De Vos.

During the first day, the prosecutor for the first time provided some of the information sought by De Vos to
prepare for the hearing (e.g. a medical report), and conceded that other crucial information was not in their
possession (e.g. the text messages referred to in the charges, and the statement by the complainant (patient) in
charges 1 and 2).

At the end of the second day, after a short adjournment by the disciplinary committee, it ruled that counts 1 and 2 “were properly before it” (which suggests it was thinking of the nullity argument) and could continue. Furthermore, it stated that it still had to decide about counts 3 and 4. No reasons were provided at the time of the ruling, and the committee said it would give its reasons for its decision later.

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De Vos’s legal representative informed the committee that before they could decide on the way ahead, they needed a decision about counts 3 and 4 and the reasons for all their decisions. The main reason for wanting the reasons was so that a decision could be made as to whether the decision should be taken to the High Court on review.

The disciplinary committee was also informed that a piecemeal approach, starting with counts 1 and 2 while they
made a decision on counts 3 and 4, was impractical and ill-advised.

What is of possible significance, says DFL, is that when it made its ruling the committee of the HPSCA stated that counts 1 and 2 were “properly” before it. This suggests that at this stage the committee had only addressed the nullity
argument of De Vos, and not the arguments as regards the vagueness of the charges, that a fair hearing was no
longer possible and that the matter was driven by bad faith on the part of the HPSCA.

When clarity was asked for in this regard, the chairperson stated that their ruling also took into account the other said points. This is one of the reasons why the reasons of the committee are so important — to enable the legal representatives of De Vos to try and understand how the committee arrived at its decision, not least of all how it dealt with the cited decisions of the Constitutional Court and the Supreme Court of Appeal. This is crucial before the legal representatives advise De Vos on the way ahead, say DFL.

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Dr De Vos, who is a member of Doctors For Life International (DFL) is supported by DFL and legal team (De
Wet Wepener Attorneys and Adv Keith Matthee SC) on a pro bono basis.