Staff Reporter
High Court acting judge Dr Michael Mtambo has dismissed a disciplinary hearing instituted by the Health Professions Council of Namibia against specialist psychologist Dr Pieter Van Der Westhuizen, who stood accused of raping a patient.
This is after the judge found that Van Der Westhuizen’s rights under Article 12 of the Constitution, which relates to a fair and speedy trial, were violated.
Van Der Westhuizen stood accused of having sexually assaulted and raped one of his female patients in November 2015 by drugging her.
Five criminal charges were levelled against him under the provisions of Section 16 of the Combating of Immoral Practices Act 21 of 1980 (as amended). Additionally, four charges of professional misconduct were also instituted against Van Der Westhuizen by Dr Wilson L Benjamin, Chairperson of the Medical & Dental Council of Namibia and Executive Head of the Health Professions Council.
In terms of the criminal charges in the rape matter, Van Der Westhuizen was cleared on 4 August 2021, due to a lack of the requisite degree of proof necessary to require the applicant to enter a defence.
The State’s appeal was dismissed by the Supreme Court of Appeal on 8 February 2022, while civil proceedings brought by the alleged rape survivor seeking N$10 million in damages against Van Der Westhuizen were also dismissed pursuant to a special plea of prescription by the High Court on 30 April 2021.
Nevertheless, the Health Professions Council levelled professional misconduct charges against Van Der Westhuizen on 5 March 2024, five years after it received a legal opinion to prosecute.
In the meantime, the Health Professions Council’s witness who testified against Van Der Westhuizen in the criminal trial has passed away and would not be available in the pending disciplinary proceedings to be cross-examined by Van Der Westhuizen. Further, Dr Benjamin, the former Chairperson of the Medical and Dental Council of Namibia, passed away, while his receptionist at the material time is now 85 years old and suffering from cognitive decline.
High Court acting judge Mtambo stated that Van Der Westhuizen held the position that requiring him to attend the disciplinary hearing after the developments outlined in the preceding paragraph of this judgment would be very prejudicial to him, as he would not have the right to cross-examine relevant people in the charges against him, and his prospective witness, a former receptionist at the practice, would not be able to provide exonerating testimony in his favour, all due to the inordinate, unexplained and inexcusable delay by the first respondent to conduct and complete the disciplinary hearing.
Acting Judge Mtambo held that the unexplained delay of five years by the Health Professions Council to prosecute Van Der Westhuizen on charges of professional misconduct was inordinate and inexcusable.
The judge referred to the case of State vs Moodey and stated that it had resulted in irreparable prejudice to Van Der Westhuizen, in that he would not get a fair trial as the complainant and important witnesses had passed away or become incapacitated in the meantime.
Picture for illustrative purposes only. Photo: Pexels
