The row centres on whether the SAMA board, elected for a three-year term in 2018, is legally constituted in terms of its Memorandum of Incorporation.
The warring parties in the South African Medical Association’s (SAMA’s) battle for “legitimate” governance have agreed upon a mediator to work out how its board is constituted.
This was confirmed last week by SAMA chairperson Dr Mvuyisi Mzukwa, who said the disaffected and suspended Western Cape branch, consisting of active and committed members of the association, had yet to agree on a date or venue for a meeting. The Western Cape branch has been rendered dysfunctional and without leadership for seven months due to the suspension.
The board suspended the influential 12-person Western Cape branch from all SAMA committees and activities after learning that they paid for legal advice on the dispute from their branch budget and threatened to charge them with theft of SAMA funds.
The row centres on whether the sitting board, elected for a three-year term in 2018, is legally constituted in terms of its Memorandum of Incorporation (MOI).
The parties differ on whether the interpretation of the MOI under the Company’s Act allows the annual general meeting or the broader tri-annual national council to elect the board. The Western Cape branch says excluding the more broadly representative national council from the election process is “undemocratic, centrist and authoritarian”.
A national council meeting is now a year overdue.
But the board says its reading of the MOI allows it to rely on the annual general meeting to constitute itself. It adds that of its 11 members only four were appointed at the 2018 national council, omitting to mention that Mzukwa and his deputy’s posts are contested, given that they were appointed in an acting capacity after the controversial resignation of the previous chair, Dr Angelique Coetzee, in February this year.
She resigned in February after airing her views on racial admittance criteria at medical schools. The board banned her from granting further media interviews and portrayed her as having apologised.
Asked why the board had not charged its alienated branch with theft, Mzukwa said resolving the matter “in the most amicable, least disruptive manner is in the best interests of SAMA”.
But relations are deeply strained, with some Western Cape members favouring arbitration, given lengthy delays in board responses, and claiming that its strategy is to “remove dissent”, while trying for a second time to push through a new MOI without calling a national council.
The Western Cape branch claims its suspension is illegal and that SAMA members are “too embarrassed” to sit on a yet to be constituted disciplinary committee because the charges are based on a “convenient” post facto SAMA budget spending protocol. Mzukwa denies this, saying the branch “clearly breached policy” by not limiting its spending to issues within its geographical boundaries.
SAMA rules also require each national committee to convene and discuss member suspensions, which has not happened. The pivotal constitutional matters committee has thus lost two members, leaving one incumbent, and rendering its oversight futile.
The now financially constrained Western Cape branch members have little recourse to litigation, as it would have to be funded by the suspended members, putting SAMA’s board in a potentially powerful position.
Mzukwa invited anyone who took issue with the proposed MOI and actions of the board, and felt they were inadequately responded to, to lay a complaint with the Companies Commission.
He denied any split in SAMA and said membership figures were steady. “This is an internal matter that affects a handful of members while the broader SAMA membership expects SAMA to abide by its policies and diligently guard the assets and expenditure of the association.”
One SAMA insider said, “The fundamental issue is that the board is being badly advised by those who don’t understand what a professional association is all about. They put the emphasis on an incorrect and narrow interpretation of the Companies Act, which is not appropriate for a nonprofit company. The board members are repeatedly reminded about their fiduciary duties but this is misdirected. Their duty is to the association and its members, not to the board.’
A former SAMA chairperson, eThekwini orthopaedic surgeon Dr Mzukisi Grootboom, said, “One of the problems with the medical profession in general is the toxic wider SA politics — you have to be very careful.”
The historic backdrop to the wrangle is the formation of the SAMA Trade Union (Samatu) several years ago, which the courts split from SAMA after it tried to claim membership fees from state employed doctors. Samatu is under administration, having previously made a futile bid to the high court to have SAMA dissolved.
Mzukwa, responding to claims that some of his board members were still Samatu-aligned, said, “There’s nothing precluding people from joining Samatu according to the MOI. We don’t view Samatu as our enemy. If there’s any conflict for a board member, they must declare their affiliation — and nobody has done so.”
He was also asked why the dispute was being allowed to drag out, given the standing of the 96-year-old, 11 000-member association, the country’s largest, and the multiple pressing problems faced by South Africa’s doctors.
He responded, “The board seeks a speedy resolution to this matter and believes that the organisation has expediency in its work serving the needs of its members and the people of South Africa.”Pressing issues facing doctors include uncertainty about the National Health Insurance, provisions of the allied but suspended Certificate of Needs legislation now before before the constitutional court, a burgeoning climate of litigation and the criminalisation of adverse patient events (medication side-effects, injury, psychological harm or death), and thinly spread doctors in a burgeoning population with a quadruple burden of disease.
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