Law experts have questioned the wisdom behind a letter by the Health Professions Council of South Africa (HPCSA) to President Cyril Ramaphosa about the prosecution of Johannesburg paediatric surgeon Professor Peter Beale.
“This has implications for the medical profession. We are just acting responsibly, just like when we notified the minister of justice and the minister of police, we felt he [the president] needs to be aware of what is happening,” HPCSA chairperson Dr Kgosi Letlape said on Monday.
The letter was penned days after Beale’s co-accused, Dr Abdulhay Munshi, was gunned in Johannesburg. Munshi was shot dead in a suspected hit on Wednesday after a fender-bender with another motorist while driving home.
Beale and Munshi are being prosecuted for the death of 10-year-old Zayyaan Sayed, who died in October last year.
Letlape said the Beale case had criminalised the medical profession and many doctors feared working under such conditions.
“I am a practising doctor and I cannot practise under this climate where I may be killed for helping society. That is not the environment we want to practise in, where ... I can be treated as if I am a criminal when there is a provision in the law in terms of how these matters should be handled.
“We are in danger. We cannot practise in this climate, the laws of the country are not being followed. Why are you not dealing with this the way it should be, why are you criminalising medicine?”
I am a practising doctor and I cannot practise under this climate, where I may be killed for helping society.
— HPCSA chairperson Dr Kgosi Letlape
Letlape said it was important for the council to alert the president to what was transpiring so it did not come as a shock when doctors refused to do their jobs.
“It can’t be that when people refuse to practise or leave the profession, the president wonders why or why he wasn’t alerted to the issues,” he said.
Law expert Dr James Grant said the constitutional independence of the National Prosecuting Authority (NPA) ensured no one, including the president, could influence a prosecutorial decision.
“Yes, representations can be made to the NPA before prosecutions begin about whether a certain matter should be prosecuted or not, but once the prosecution is under way there is nothing that can be done.
“What can certainly not be done is to write to the president, once the NPA has decided to prosecute, and request his intervention in the matter.”
He said because of the separation of powers, the president would not legally be able to intervene, “as he does not have the authority to do so”.
Grant said the HPCSA writing to the prosecutors in the case or the presidency could not be considered as interfering in the duties of the NPA.
“I would expect the presidency’s office to completely ignore the HPCSA.”
He said what would be considered to be interference in the NPA’s duties was if the HPCSA instructed doctors, who may be called as witnesses in the case, to refuse to give evidence.
“That would amount to obstruction of justice.”
Constitutional law expert Pierre de Vos said if the HPCSA was asking the president to intervene in the matter, then the council would be asking him to breach his constitutional obligations.
“The NPA’s independence is enshrined and protected by the constitution. I cannot imagine that the HPCSA was acting on any legal advice. If they were, then it was very bad advice.”
He said while a party to a court case could make representations to the court, there was no obligation for the court to consider such.
De Vos said a party that was not involved in a court case did not have a right to make representations to the court.
