Retired deputy chief justice Dikgang Moseneke has ordered the state to pay the families of the victims of the Life Esidimeni tragedy R1.2m each. But, reports Business Day, he declined to recommend that criminal charges should be made, saying his office had handed the full record of the arbitration over to the police, and that it was up to them to do their jobs.
Psychiatric patients died after the Gauteng Health Department moved some of the most vulnerable patients in its care from the private healthcare provider Life Esidimeni to mostly non-governmental organisations (NGOs) in what top government officials in the department claimed was a bid to save money.
Moseneke said the reasons for cancelling the contract with Life Esidimeni, as advanced by former health MEC Qedani Mahlangu, Dr Barney Selebano, the suspended head of the Gauteng Health Separtment, and former Gauteng director of mental health Dr Makgabo Manamela, were “untrue”. Moseneke said the move, which led to the known deaths of 144 patients, was irrational.
Moseneke said 44 patients were still unaccounted for and were currently merely seen as missing persons.
The report says Moseneke, who had headed the arbitration hearings in Parktown, Johannesburg, over the past few months, announced that Constitutional damages amounting to R1m should be paid to the families and survivors. The government had opposed this, but an amount of between R1m and R1.5m was claimed by all three groups of claimants.
Moseneke made it clear that various human rights were breached in this tragedy.
The state had offered R200,000 in total, which included R20,000 to contribute for funeral costs, while the rest would cover damages claimed.
The report says the Gauteng government had announced in its budget address for 2018-19 that R28m had been allocated to the office of the premier to be able to compensate the families of the victims.
Moseneke ordered the government to provide families with counselling by no later than 30 days from Monday. Polity reports that he also ordered the State to construct a monument which will serve as a reminder to future generations of the human dignity and vulnerability of mental care users. “Government is directed to construct at its exclusive expense and within 12 months from the date of publication of this award, a monument at an appropriate prominent location to commemorate the suffering and loss caused by the Gauteng mental health marathon project”.
While reading part his judgement, Moseneke said reasons given by the Gauteng Health Department officials to end the Life Esidemeni contract were not cogent. According to the report, he said former MEC (member of executive council) of health Qedani Mahlangu ignored and brushed aside warnings.
“Her conduct was irrational and reckless. She acted with impunity because the patients and their families were poorly resourced. Her ulterior motive remains concealed.”
Moseneke said he found that the State behaved unconstitutionally by implementing the irrational decision to end the Life Esidemeni contract. He described the NGO’s to which patients were transferred as “sites of death and torture”. “Every element if marathon trampled on the rights and dignity of mental health care users and their families.”
The report says there was some sense of relief among family members after Moseneke made his order. “I’m happy because the way the former chief justice read out what they did, the constitutional rights they violate against our loved ones and what they did wrong, is exactly what we were trying to tell through this whole process and the way he laid it out for us couldn’t be better,” said Christine Nxumalo.
The aim of the hearings was to help provide family members with closure and redress.
Gauteng Premier David Makhura, on Monday 19 March 2018, welcomed the Redress Award for the Life Esidimeni victims.
The address on the Polity site reads: “This morning retired Chief Justice Moseneke presented his final report on the alternative dispute resolution (ADR) process which was concluded in February. The Premier accepts the findings and conclusion outlined in the report.
“The arbitration process was established by Premier Makhura, following the recommendations made by the Health Ombudsman to determine a way forward such as mechanisms of redress and compensation for the families affected by the Life Esidimeni tragedy.
“The affected families will each receive R20,000 for funeral expenses, R180,000 for shock and psychological trauma and R1m in constitutional damages. Government has been ordered to pay this amount in no later than 3 months from today.
“‘In respecting the outcomes of the arbitration process and in implementing its recommendations in full, we will honour the memory of the lives lost. Whilst nothing can bring back those who have lost their lives, the families of all patients deserve the truth and accountable redress needs to be made.
“‘We will continue to work with the families and we are committed to honouring all families by ensuring that the judgements listed in the report are actioned within the stated timelines’, said Makhura.
“In his State of the Province Address earlier this year, Premier Makhura noted that an independent curator will be appointed to ensure that this award is implemented without delay.”
The amount to be paid to the Life Esidimeni claimants is about R175m in total‚ which is way more than the R28m currently budgeted in the current provincial budget‚ says Jack Bloom‚ the Democratic Alliance Gauteng Shadow Health MEC. The total expenses for the provincial government are likely to be over R200m‚ Bloom is quoted in The Times as saying‚ due to the costs of hearing itself and the pledge by the provincial government to build a monument to the victims.
He said the ruling was a “stinging rebuke” for the province. He called on the police to follow up on Moseneke’s clear findings about criminal liability involving officials within the health department.
Bloom concluded: “Justice Moseneke has demonstrated great wisdom and compassion and set a binding precedent for the dignified treatment of all people in line with the Constitution.”
No criminal action has as yet been taken against any of the officials behind the decisions that led to the tragedy and, The Times reports, Makhura, in reply to questions from journalists, said only that criminal investigations are ongoing. “There should be no stone that must be left unattended to‚” Makhura said.
Christine Nxumalo‚ who forms part of the committee representing families‚ called for criminal charges. “There’s no reason why there shouldn’t be criminal charges‚” said Nxumalo. She said that the fight for justice was not over. “This was only a halfway milestone for us. We were right all along‚ we did not actually make these things up. They really did happen‚” she said.
Makhura said that government will implement Moseneke’s order without delay. “There is no amount of money that can compensate for loss of life. We will implement everything‚” said Makhura.
Mahlangu is far from being off the hook, says an IoL report. Reacting just after Moseneke’s hard-hitting order, the ANC in Gauteng said Mahlangu will now appear before its integrity committee. The ANC’s provincial secretary Hope Papo said: “In line with the decisions of the provincial executive committee, Comrade Mahlangu will appear before the ANC’s provincial integrity committee, as part of a process of internal accountability within the party.”
The date of her appearance is still be announced.
The report says stopping just short of ordering the arrest of Mahlangu, Selebando and Manamela, Moseneke strongly implored the police to do their job and ensure that justice is served.
Also, the report adds, Moseneke’s decision has left the Gauteng government with a massive headache of choosing which projects and services to sacrifice to honour the multimillion-rand Life Esidimeni tragedy compensation. The arbitration process has already cost Makhura’s office R47m to cover venue costs, video production, the transportation of family members, lawyers, and sign language and interpretation services.
Provincial government spokesperson Thabo Masebe welcomed Moseneke’s order and said his office had been preparing for its outcome. But despite their preparations, Masebe said they will have to consult with the provincial treasury and then adjust their budget in order to meet Moseneke’s ruling.
The report says the amount is also way above the R28m that Gauteng Finance MEC Barbara Creecy had allocated to Life Esidimeni, when she tabled her budget last month.
“The Gauteng Treasury will allocate a budget and we will have to have a budget adjustment to find the money within the provincial government. The R28m was a provisional allocation. We now know how much we have to pay. We will go back to the Treasury and calculate exactly how much money will be required and ensure that we have the money to comply with the order,” said Masebe “The premier said we will comply and that means that we will have to find the money. We will follow the process of budgeting, including adjustment. We will meet the deadline,” added Masebe.
He said his office will be responsible for all the Life Esidimeni pay-outs and he was confident that no services will suffer as a result.
“We anticipated that there would be an order for compensation,” he added.