A disciplinary hearing into allegations of unprofessional conduct by the former chief state pathologist of the Free State, Dr Leon Wagner, has started in Bloemfontein without him entering any plea.
Wagner’s defence, advocate Johan Engelbrecht SC, submitted to the professional conduct committee — appointed by the Health Professions Council of South Africa (HPCSA) — that the defence first wants to get clarity on certain issues, to which he submitted legal argument, before Wagner can enter a plea.
Wagner, according to the charge sheet, is accused of being guilty of unprofessional conduct. It is alleged that he recorded ”Aids” as the cause of death on a death certificate without the proper evidence and or examining the body.
Thursday’s argument centred on the procedures at the disciplinary hearing.
According to the HPCSA’s legal representative, advocate Lulamile Peter, the requirements of section 35.3 of the Constitution are not applicable in ”inquiries of this nature”. This section addresses aspects of someone’s right to a fair trial.
Peter submitted that Wagner cannot be seen as an accused yet, ”as in a criminal matter”.
”In this enquiry the doctor has not formally been charged.”
Peter submitted that the HPCSA is not a competent authority ”like the National Prosecuting Authority” to charge people. ”The charge of unprofessional conduct for the purpose of this inquiry is not a charge as in a criminal matter.”
Wagner’s defence submitted that the charge sheet has certain shortcomings and does not adhere to the aspects of a fair trial.
Engelbrecht submitted that the charge sheet does not comply with the Criminal Procedure Act, which, he submitted, the committee agreed would be applicable.
According to a recording of the pre-trial meeting that was played into the committee’s record, Wagner’s defence asked the council’s legal team to specify what rule, regulation or Act the pathologist had contravened.
In the recording, Wagner’s legal adviser, Gerhard Wagenaar, can be heard saying: ”What form of fault has been done on the part of the doctor?” He added that it is not mentioned in the charge sheet.
Engelbrecht submitted further that Wagner’s charge sheet does not adhere to the principles of a fair trial. The charge ”must contain details such the manner and nature of the charge”.
Engelbrecht said the charge sheet forms the basis of a hearing. He also submitted that the legal council for the HPCSA did not comply with the principle of the ”request for further particulars”.
The hearing continues. — Sapa