Xenophobic rant: Dr Phophi Ramathuba’s disciplinary hearing set to continue in January 2024

By Daily Maverick

The disciplinary hearing by the Health Professions Council of SA (HPCSA) involving Limpopo MEC for Health, Dr Phophi Ramathuba, will continue in January 2024, says the chair of the professional conduct committee.

The inquiry, which was scheduled for 25 to 27 July and then postponed to 29 to 31 August, 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

The merits of the case were not heard as her lawyer, advocate David Madiba, argued that there were technical legal points that needed to be addressed first. These points included the issue of jurisdiction, pending litigation and potential bias of committee members.

The jurisdiction argument 

In February 2023, 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.

During this inquiry, Madiba reiterated the argument around jurisdiction, saying that Ramathuba had conducted the conversation in her capacity as an MEC and not as a medical practitioner — meaning that the HPCSA did not have jurisdiction.

Chair of the professional conduct committee, advocate Justice Mogotsi, ruled that the HPCSA did have jurisdiction over the matter as Ramathuba had maintained her registration with the HPCSA. Mogotsi also said there was prima facie evidence of misconduct by Ramathuba and dismissed this point.

Status of pending litigation 

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.

In July, Madiba told the committee that Ramathuba had decided to petition the Supreme Court for leave to appeal.

During the inquiry in August, Madiba told the committee that the documents for this petition were en route to Bloemfontein.

“It would be in the best interest for all parties if we can stay these proceedings until we have received the outcome of this pending litigation,” he said. Mogotsi said the committee could not rely on word of mouth about the progress of this pending litigation, and dismissed the point.

Potential bias of committee members

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

In August 2022, the South African Medical Association (Sama) also lodged a complaint against Ramathuba with the HPCSA, stating that the points raised by her in the video amounted to no more than political grandstanding and that her behaviour (in her capacity as a medical practitioner) was prima facie unprofessional and/or unethical and should be investigated and possibly sanctioned by the HPCSA.

Madiba argued that an individual who was a member of an organisation that had lodged a complaint against Ramathuba, like Sama, should not form part of the committee as they could have bias.

Mogotsi explained that the respondent [Ramathuba] did not have the prerogative to select committee members. Although one member of the committee was a member of Sama, Mogotsi said this was acceptable.

“The committee did not witness anything that would lead one to have an apprehension of bias, and there is no merit for the committee member to recuse himself,” he said.

Madiba vehemently opposed this and said that including the committee member could bring the inquiry into disrepute. Ultimately, the committee member chose to recuse himself. The inquiry was then adjourned to 31 August while a replacement committee member was found.

New dates set for inquiry 

On Thursday morning, a new committee member was present. It was then revealed that although he was not currently a member of Sama, a few years ago he had been a member.

Despite Mogotsi saying this would not be an issue, Madiba disagreed and said this could still pose an issue and the member ultimately also recused himself.

During proceedings, Ramathuba was informed that a family member had died. Mogotsi agreed to the adjournment of proceedings and said the committee would reconvene from 23 to 25 January 2024.