By Staff Reporter
Magistrate Dina Usiku on Friday reserved judgment in the Windhoek Regional Court in the case of the State against Reinhardt Zaire until 20 May, when she will give her verdict.
The trial started on February 19 this year and continued on February 20 when it adjourned for the State to call one more witness.
Zaire is accused of contravening section 21 of the Medical and Dental Professions Act of 1993 by practising as a medical practitioner without having registered with the Medical Board of Namibia as a medical practitioner.
However, when it resumed on Friday the State did not call more witnesses and closed its case, whereupon Zaire’s lawyer Jan Wessels pleaded for his acquittal, submitting that none of the State witnesses testified that Zaire ever treated them nor that he ever received any payment for any treatment that he may have rendered them.
Wessels further submitted that the Act is clear and only prohibits gainful practice by any medical practitioner not registered with the Medical Board of Namibia. Thus treating one’s child or friend could thus not constitute an offence as contemplated by the Act.
The defence counsel said witnesses testified that after seeing Zaire they were referred to a nursing sister who was a registered nurse and was a person who was entitled to ask for a fee. Thus it could not be assumed that any payment so made for medicine may necessarily also have been made for the examinations that Zaire conducted on patients.
Although one of the witnesses knew the historical medical background of Zaire and he may have drawn blood from him as well as given him medicine, still the witness did not testify that he advanced any payment to Zaire for any medicinal services rendered to him.
Payment was supposed to have been made but the witness’s medical aid refused to pay and the witness was not sure whether he did pay eventually.
Wessels put it to the State pointing out that given the long-term familiarity between the witness and Zaire, he may have been assisting him as a friend and not as a medical doctor practising medicine for gain.
Wessels also shot down the State’s submission that the registered nurse at the clinic where Zaire supposedly practised referred to Zaire as a medical practitioner, pointing out that such reference per se did not constitute a criminal offence under the Act.
Wessels submitted that the onus was on the State to prove beyond reasonable doubt that Zaire was indeed practising gainfully as a medical doctor without having registered with the Medical Board but that it has failed to do.
He said the main contention of the State was not the fact that Zaire has not registered with the Medical Board. Indeed, it was not in dispute that he has not so registered. Rather, the issue is whether he was practising gainfully as a medical doctor without having registered with the Medical Board.
And this the State has not proven beyond reasonable doubt.
Prosecutor O. J. Asino insisted that the evidence brought by the State against Zaire was good enough. He submitted that there was a difference between seeing a patient and receiving money from a patient and that evidence by the witnesses clearly showed that Zaire did see or treat them.
He said neither did the accused dispute that he was not registered or did come in contact or physically saw the patients, taking their body temperature, by screening them or by suggesting treatment.
Asino put it to the defence how Zaire could have done all this if it was not for gain? He implored the magistrate to consider three main things in his judgment. First all the sick people went to the clinic where Zaire was allegedly practising to obtain medical treatment.
Secondly, payment was made for the services rendered and thirdly that all witnesses saw the accused as a medical practitioner who could heal them.
He said it was left to the clinic how it would divide the payment among its staff and thus the money may not necessarily have been directly paid to Zaire.
Asino asked the court to look at the spirit of the Act.
“To prohibit the practicing of any profession without being registered,” reads part of the Act’s preamble.
With this, Asino submitted the lawmakers had in mind the protection of would-be victims of unregistered medical practitioners and this is something the court should bear in mind.