After being awarded damages, distraught families want more: the former Gauteng Health MEC must face criminal charges.
The R135‑million in constitutional damages awarded to claimants in the Life Esidimeni tragedy this week — the largest award of its kind in South Africa’s history — could increase to 10 times that amount.
Former deputy chief justice Dikgang Moseneke’s arbitration ruling is also likely to influence future rulings of this kind.
Constitutional damages of R1-million each were awarded to 135 claimants, in addition to funeral-related expenses and R180 000 for shock and psychological trauma.
Moseneke ruled that it was “appropriate relief and compensation for the government’s unjustifiable and reckless breaches” of at least six sections of the Constitution and “multiple contraventions” of the National Health Act and the Mental Health Care Act.
Between October 2015 and June 2016, 1 711 psychiatric patients in Gauteng were transferred from private Life Esidimeni health facilities, for which the state had paid, to largely ill-equipped community organisations with little to no experience in caring for mental health patients.
The move came after the provincial health department ended a 30-year contract with the Life Healthcare private hospital group.
The department ignored repeated warnings from families and civil society organisations that transferring patients to unqualified organisations, which Moseneke referred to as “death and torture traps” in his arbitration ruling, could lead to the death of psychiatric patients.
As a result, 144 patients died, and 1 418 were exposed to “trauma and morbidity” but survived, according to the arbitrator’s report.
Moseneke ruled the sites were “hand-picked” by senior Gauteng health department officials, such as then health MEC Qedani Mahlangu and her head of department, Dr Tiego “Barney” Selebano, with an “irrational and arrogant use of public power”.
All claimants received the same award, regardless of whether their loved ones died or survived.
But the number of claimants is now likely to increase from the original 135, after Moseneke invited those who hadn’t been part of the arbitration — at least 1 350 of those who survived didn’t join — to come forward.
“Not all have joined the process. When they find their voice or way, I trust that the government would choose to meet their claim in terms identical to the award than to set up new litigation of another arbitration process,” Moseneke said in his arbitration award.
Within a day after the ruling, 10 more families and patients had already contacted the arbitrator’s office. “I’ve taken down their details, and sent it through to the mental health director in the Gauteng health department to determine if they qualify for the award,” spokesperson Obakeng van Dyk said.
Historic ruling: Retired judge Dikgang Moseneke said that he hoped the families of affected mental health users, who were not part of the Life Esidimeni arbitration, would come forward and claim the compensation they were due. (Delwyn Verasamy)
In order to qualify, patients should have suffered trauma directly as a result of the transfers and should be able to prove that they or their loved ones were transferred between October 2015 and June 2016.
There have been two major constitutional damages awards in the past, but these were significantly smaller than the Life Esidimeni award and were made in court cases and not by arbitration agreement.
In 2006, the Eastern Cape high court ordered the welfare MEC in the province to pay “Mrs Kate” damages for failing to process and pay her disability grant within a reasonable period”, after the state had taken 40 months to do so.
And in 2005, the department of agriculture and land affairs had to pay constitutional damages to a private company in Benoni, Modderklip Boerdery, after the Constitutional Court ruled that the state had failed to protect Modderklip against the unlawful occupation of its property.
Although the size of the award wasn’t specified, the ruling stipulated that it could not exceed the property’s value, which was less than R1.8‑million.
Because the Life Esidimeni award is an arbitration award, which is a private agreement between two parties, it can’t set a legal precedent for courts.
But, it will undoubtedly “set a standard”, says advocate Adila Hassim, “because constitutional damages this high have never been awarded before”. Hassim was part of social justice organisation Section27’s legal team that represented 63 of the Life Esidimeni claimants.
Sasha Stevenson, who was also part of the team, agrees: “Because this is such an important and public matter that was decided by the former deputy chief justice, it will have persuasive value to those who are deciding other cases.”
The Life Esidimeni tragedy is also likely to end up in the criminal court. Two parallel criminal investigations — one by the South African Police Service and another by the Special Investigating Unit — have been opened.
Pindi Louw from the National Prosecuting Authority’s Gauteng office confirmed that the office had received 140 inquest dockets from the police for a decision on whether to prosecute.
Mahlangu, Selebano and the director of mental health services at the time of the Life Esidimeni patient transfers, Makgoba Manamela, could all potentially be implicated in charges including murder, attempted murder, culpable homicide, perjury and corruption.
“Deputy director of public prosecutions George Baloyi has assigned a team of prosecutors to work on those documents. They will take between four to six weeks … and will then announce their decision,” Louw said.
The families of Life Esidimeni patients walked out en masse after the testimony of former Qedani Mahlangu at the arbitration.
Moseneke labelled Mahlangu’s and Selebano’s testimonies during the arbitration hearings as “fabricated and patently false”. “All we can hope for is that, one day, the true reason for the conception and implementation of the Marathon Mental Health Project [of which the Life Esidimeni patient transfers formed part] will see the light of day,” he said.
The spokesperson for the Life Esidimeni families, Christine Nxumalo, said, although they accepted the compensation, they still wanted the department to be held accountable. “We see Qedani Mahlangu and her officials as proper traitors, because they didn’t provide us with the answers we asked for in the hearings,” she said.
“You don’t just forgive a traitor. We want to see that justice is done.”
The tragedy has revealed the Gauteng government’s inner workers, leading one doctor to say,
‘If this is how things are
run … God help us all’
It has been called a tragedy. A calamity. A scandal. But this was no accident, no rash decision made under pressure, no force of nature.
It was sheer arrogance, political manoeuvring, incompetence, indifference and possibly greed and corruption that sent nearly 150 of the most vulnerable patients to their deaths.
Some analysts have branded the
#Life Esidimeni tragedy mass murder.
The department was repeatedly warned against doing so by professionals and organisations with on-the-ground experience. But they were brushed aside.
Civil society and health organisations who spoke out were treated as the enemy.
Opposition politicians were vilified for doing their job. The Democratic Alliance’s Jack Bloom, a long-standing thorn in the side of the ANC in Gauteng, was called a racist and chauvinist when he repeatedly raised questions about the project in the legislature.
“Now we are told nobody — not the MEC, not the officials, not the premier — knew anything about it,” says Mzukisi Grootboom, chairperson of the South African Medical Association (Sama). “For goodness sake, if that is how things are run … God help us all.”
At least one woman was allegedly raped.
And some — between 45 and 62, depending on whose list you check — simply went missing. No one knows whether they’re dead or alive.
Finally, there are people like Guy Daniel Kanza. His family has been searching for him since he was removed from a Life Esidimeni facility in Waverley in northern Johannesburg in 2016.
His name appears on no Gauteng health department list. He is just gone.
Sama, a fierce critic of the department of health and often the politicians in charge, has long warned that there are problems across the public health system.
“When we raise concerns, it is not because there is a political decision to question government,” Grootboom says. “It’s is because we are dealing with patients and have an obligation to represent them. We work in the poor communities.”
However, Sama’s remarks are rarely embraced by the government. “We should be treated as allies, as government’s eyes and ears on the ground. Yet, we’re treated as troublemakers,” Grootboom argues.
Had it not been for the work of civil rights groups like Section27 and professional bodies like the South African Depression and Anxiety Group (Sadag), more lives would undoubtedly have been lost. It could have taken years for the disaster to come to light.
“The failures were quite simply due to government’s persistent failure to heed the advice of experts, families and everyone else who could see that this was going to end in disaster,” Charlene Sunkel, who represents both the South African Federation for Mental Health and South African Mental Health Advocacy Movement, told Bhekisisa.
“Civil society often has the experience and knowledge that government officials lack and the government would do well to pay more attention to how this expertise could positively influence and inform their processes.”
Grootboom says the disastrous failures that led to patient deaths are the culmination not only of failing health systems but because there is also no way to address problems once they are raised. “We often see that politicians announce there will be an intervention. Then it is as if the job is done.”
The families of Life Esidimeni patients walked out en masse after the testimony of former Qedani Mahlangu at the arbitration.
The question left unanswered during the past two months’ arbitration hearings in Johannesburg is why the terrible trio of Qedani Mahlangu, the MEC in charge during the Life Esidimeni project, the head of her department, Barney Selebano, and the director of mental health, Makgoba Manamela, were so adamant to push through the transferrals of patients. Was blind resistance to their critics’ advice the only factor, or was there corruption, greed and political gain involved?
Gauteng Premier David Makhura connected financial irregularities to the payment of NGOs and vowed that the government would continue to investigate the reasons for Mahlangu’s decision. The Special Investigating Unit is investigating possible corruption related to project, he said.
But did Makhura know the details of Mahlangu’s plan and, if so, why did he not prevent the tragedy from happening?
Not one of the health department’s senior leaders took personal responsibility and instead claimed that no one in government works in a silo, and the department, therefore, needs to take collective responsibility. Mahlangu alleged her senior staff never informed her of the details of the project, while Selebano and Manamela claimed the exact opposite — that their boss bullied them into it.
“At the start of the arbitration hearings, we had very high expectations to help us answer our questions of why, why why,” says Sadag’s Cassey Chambers. “But we were very disappointed and frustrated by Manamela, Selebano and Qedani’s testimonies. Both at their stall tactics, blaming everyone else — even NGOs like us who were trying to help and doing the work that they should have been doing.”
A teary and clearly frustrated Health Minister Aaron Motsoaledi, who referred to Mahlangu’s behaviour as “criminal conduct”, took the stand on Wednesday. “I have been asked why I don’t fire MECs,” he said. “But I cannot do that. The premier hires and fires MECs.”
Mahlangu’s tone-deaf appearance at the hearings certainly made it easy to cast her as the pantomime villain. She has done nothing to endear herself to either the patients’ families or the public, who have taken to social media to vent their anger against the former MEC.
One by one, officials drove the nails into her political coffin and distanced themselves: from the expedient (officials in the department trying to shift the blame) to the factual (a credible Barbary Creecy dismantling Mahlangu’s defence as MEC for finance) and the political (Makhura and an emotional Motsoaledi).
“There was a clear intention that officials wanted to hide this from the minister and the premier. But for what reason?” Motsoaledi asked.
“When I read the ombudsman report about how people were bundled in vans and tied with sheets, and how they are chosen … like cattle at an auction…” Motsoaledi said, unable to finish his sentence.
“For human rights to be breached in such a manner that is reminiscent of our apartheid era in our democracy is very painful that’s why I feel personally betrayed.”
Watch: Motsoaledi breaks down on the stand
For now, Mahlangu’s political career is over — at least as far as public office is concerned. While South Africa has the dubious track record of rewarding scandal-ridden politicians, anger over her transcends the ANC factions, and she will have to take the fall for government’s worst human rights failure since the end of apartheid.
Makhura has probably done enough to survive the political fall-out. At the hearings, he was the opposite of Mahlangu — he accepted personal accountability and came across as humble and sincere. Crucially, the family members of patients warmed to him.
But the premier’s insistence that he was misled by his former MEC is disputed by Bloom. Makhura repeatedly testified that he did not know patients were being sent to NGOs. Bloom produced the Hansard record of the Gauteng legislature sitting on 15 March 2016, where the premier was greeted by the speaker and answered questions. Later in the same session, the written record reflects, Bloom raised specific concerns about the NGOs. “I speak to mental health NGOs, and they tell me that there are no the facilities [sic] that, it simply has not been done.”
Mahlangu explicitly mentioned NGOs several times in the sitting. “The NGOs have hired the staff,” she said, and then, astonishingly, admitted some had not been licensed. “They have also been given licences.”
What set these proceedings apart from many others into government failings is the warmth, compassion and incisiveness of retired chief justice Dikgang Moseneke, who presided over the hearings. “We finally felt like someone was listening to us. We need more people like the justice in our country’s leadership,” Chambers says.
The testimonies ended on Wednesday. The final legal arguments in the Life Esidimeni arbitration are expected to be delivered on February 8 and 9. An arbitrator will then announce a compensation package for the victims’ families.
On Monday, October 23rd during the arbitration hearings in the tragedy at Life Esdimeni, a family member of one of the victims suggested that amnesty is given to the NGOs.
The Life Esidimeni tragedy claimed the lives of 141 patients from the facility. They were moved to NGOs who falsified documentation and left the patients in an appalling condition and left to die
This was suggested in the hopes of “getting answers” in the words of Christine Nxumalo, whose sister died at the notorious Precious Angels NGO facility. She further suggested that the officials not be held criminally liable for giving false testimony they made at the arbitration.
Further, she stated that everything that was said in the hearing by Precious Angels founder, Ethel Ncube Nxumalo “I can tell you that everything she said was a lie”
Christine’s sister was reported to have died on 17th of August 2016 while in a statement from the Founder of Precious Angels. This contradicts a paramedics report showing she actually passed away two days earlier on the 15th August.
While she critical of the department and their actions she wants answers and the truth rather than prosecution for the sake of the families. While she is still waiting on answers from the SAPS on an open case and autopsy report from them.
Going further Christine had said that on numerous occasions they had contacted the Health Department to warn them of the implications of ending their contract with Life Esidimeni. To which they received no response from the department.
This has raised the question over truth over Justice with the obvious moral complex involved. Yet, this would allow for all the answers to be given to the families and the full story finally told of what transpired over the months leading to the deaths of 141 mentally ill patients.
Timeline of events
Image Credits: www.ewn.com
Kyla Hermannsen a former journalist for Health-e has been part of the winning entries at the Vodacom Journalist of the Year awards for the Northern Region, for her documentary on Life Esidemeni, Dignity Denied.
Health-e in a statement has said that the documentary was partly produced while she was Hermannsen was still working at the organization. The new outlet has commented on how proud they were of the announcement and commends the journalist and the team comprised of Ashley Market, Tshepo Dhlamini, Tshidi Lechuba of eNCA’s Checkpoint, and freelance cameraman Shamiel Albertyn.
In a comment from the judges of the awards, “Journalism can influence awareness of what is happening in our country and drive public discourse. Months of investigation resulted in a series of reports that were thoroughly researched, poignantly told, well shot and edited – and exposed conditions contributing to the death of one of the subjects. This impactful reporting was subsequently even used during the official investigation.”
The documentary aired 16th August 2016 on Checkpoint a show on eTV and eNCA.
For those of you who didn’t hear or read it yesterday, below is an extract from the opening of the Gauteng Premier’s State of the Province address:
Please join me in acknowledging the presence of members of the Family Committee representing the bereaved families of the Life Esidimeni tragedy in which more than a hundred mental health patients lost their lives.
Madame Speaker, we have been working very closely with the Family Committee as we implement the remedial action outlined by the Health Ombud, Professor Malegapuru Makgoba, in his report released on 1 February 2017.
On Saturday 18th February, we held a Healing Ceremony at the Freedom Park, at the request of the bereaved and affected families. At the Healing Ceremony families made an impassioned plea that as we mourn the tragic death of the mental health patients and take decisive corrective action, politicians and political parties must be advised not to use this tragedy as a political football because this prolongs their pain and anguish. I hereby appeal to this House to honour the wishes of the families. This is my humble appeal.
As we implement the recommendations of the Health Ombud Report, every step we take will be guided by the wishes of the families and the advice of the panel of sixty experts appointed by the Minister of Health, Dr Aaron Motsoaledi.
The pace at which we move in implementing all the recommendations of the Health Ombud is determined strictly by the wishes of the families and the advice and opinions of experts. We are also collaborating with civil society in this process.
As the Premier of this province, I have publicly stated my deep regret and profuse apology for the tragic death of so many of our vulnerable citizens who were under the care of the Gauteng Department of Health.
I want to reiterate the commitment I made to the families on Saturday: I will spend the remainder of my term over the next two years, to ensure that there is restorative justice and healing for the families and take every executive action possible to restore confidence in our public health system.
I would like to state categorically that the decision to transfer Life Esidimeni mental health patients to NGOs was not made in consultation with the Provincial Executive Council. The Executive Council and I would have never approved a plan to outsource mental health, a primary responsibility of the state to care for the vulnerable in society, to NGOs. What is even worse is the fact that such NGOs didn’t meet appropriate standards and legal prescripts.
The Provincial Department of Health had repeatedly reported that, as a result of the new hospitals and community health centres, they had enough beds in public health facilities that could accommodate public patients from private health facilities such as Selby Hospital and Life Esidimeni centres.
As the Provincial Executive Council, we do not interfere in the appointment or retention of service providers by various departments, in strict observance of the laws of our land. We dare not be found on the wrong side of the law.
I have always emphasised to all MECs and HODs reviewing contracts with any service provider must never compromise service delivery, especially the most vulnerable groups which depend entirely on the state for the well-being. Cost considerations can never override the imperative of the quality of care.
It is common cause that the ill-fated transfer of patients to the NGOs compromised the wellbeing of mental health patients. At the very least, the Department should have placed all patients in public health facilities or retained the services of private facilities in case there was no sufficient space in the public sector. As the Head of Government, I am deeply aggrieved by the extent to which those responsible for this tragic and ill-fated transfer of patients to unlawfully operating NGOs, have tried to hide the facts from me, the Minister of Health and the Health Ombud.
Together with the Minister of Health and the newly-appointed health MEC, Dr Gwen Ramokgopa, we are taking swift action to implement all the recommendations of the Health Ombud, the most urgent which is to relocate the mental health patients to appropriate facilities. We will provide regular updates to the Legislature, the Health Ombud and the public on the progress.
We are also working very closely with the families to deal with all the issues in the Health Ombud Report. On Saturday, we hosted a Healing Ceremony for the affected families and this was a heart-rending moment for all of us. We will erect Memorial Stones at the Freedom Park in honour of all those who passed on.
Learning from this tragic death of mental health patients, I have decided to institute a wide-ranging inspection and condition assessment of all centres that care for the most vulnerable – the elderly, people with disabilities and children – whether they are operated by the public, private or NGO sectors.
It is our responsibility as the state to care for the weak. Every institution that provides services to the most vulnerable must meet appropriate standards. We cannot wait for another tragedy before we take wide-ranging action. The Life Esidimeni tragedy must spur us into action over the next two years to restore the dignity and human rights of mental health patients and all vulnerable groups in our communities. I am determined to lead this mission over the next two years of my term of office as the Premier of this province. I will appoint the Premier’s Mental Health Advisory Panel to assist in this mission.
Clearly, this is a moment we should seize in the manner suggested by Crick and others. SECTION27 is ready to give any assistance we can to your endeavours and under your leadership as experts in this field of health care and human right