Doctor escapes alleged rape hearing due to 5-year delay

A Swakopmund psychiatrist accused of rape and indecent assault has been permanently released from professional disciplinary proceedings after the High Court found that a five-year delay in bringing professional misconduct charges against him had seriously compromised his ability to defend himself.

Acting Judge Mtambo ruled in favour of Dr Pieter van der Westhuizen, finding that the Health Professions Council of Namibia’s decision to pursue disciplinary charges years after the alleged incidents had resulted in “irreparable trial prejudice”.

The case dates back to November 2015, when a patient accused Van der Westhuizen of indecent assault and rape following psychiatric consultations at his practice on 6 and 7 November.

The allegations resulted in five criminal charges under the Combating of Immoral Practices Act, as well as four professional misconduct charges before the Medical and Dental Council of Namibia.

Van der Westhuizen was discharged in August 2021 after the criminal court found that the State had failed to present sufficient evidence for him to be called upon to enter a defence.

The State appealed, but the Supreme Court dismissed the appeal in February 2022.

A separate N$10 million civil claim brought against Van der Westhuizen by the patient was also dismissed after the High Court upheld a special plea of prescription.

Despite the conclusion of the criminal proceedings, the professional disciplinary process continued.

According to the judgment, the Health Professions Council formally charged Van der Westhuizen with professional misconduct on 5 March 2024, about five years after receiving a legal opinion recommending that he be prosecuted.

By then, several key circumstances had changed.

The complainant had died, while a council witness who had testified against Van der Westhuizen during the criminal trial had also died. This meant the doctor would no longer have an opportunity to cross-examine that witness in the disciplinary proceedings.

Another person involved in the matter, Professor Van Rensburg, had also died.

Van der Westhuizen’s own witness, a former receptionist at his practice, was by then 85 years old and experiencing cognitive decline.

The psychiatrist argued that the delays had deprived him of a meaningful opportunity to defend himself because crucial witnesses were no longer available and his own witness was no longer capable of providing the evidence he believed was important to his defence.

The High Court agreed.

Mtambo found that the council’s five-year delay was “inordinate and inexcusable” and had resulted in irreparable prejudice to Van der Westhuizen’s ability to receive a fair hearing.

The court held that the constitutional right to a fair and expeditious hearing was not confined to criminal proceedings, but could also apply to disciplinary proceedings where the consequences for the accused were sufficiently serious.

In Van der Westhuizen’s case, those consequences included possible suspension or expulsion from the medical profession.

The judge also rejected the argument that the seriousness of the allegations, on its own, justified allowing the disciplinary proceedings to continue despite the delay.

While acknowledging the importance of serious misconduct allegations, the court held that fairness had to be assessed in the circumstances of each individual case.

The council initially opposed Van der Westhuizen’s application but withdrew its opposition shortly before the matter was heard.

Mtambo nevertheless considered the merits and found that Van der Westhuizen had demonstrated that the delay had caused irreparable trial prejudice.

The court consequently ordered that Van der Westhuizen be finally and permanently released from the Health Professions Council’s disciplinary proceedings arising from the 2015 consultations.

The council was also ordered to pay his legal costs.

The judgment does not find that the original allegations of rape and indecent assault were false or that Van der Westhuizen was innocent of the alleged conduct. The ruling was instead based on whether he could still receive a fair disciplinary hearing after years of delay and the death or deterioration of crucial witnesses.

In a separate matter in 2023, Van der Westhuizen was arrested and appeared in the Swakopmund Magistrate’s Court after he allegedly assaulted his wife during an argument at their home in the Ocean View suburb of Swakopmund. The status of that matter could not be established at the time of going to print.