The South African Federation of Trade Unions congratulates former Deputy Chief Justice Dikgang Moseneke on his ruling in the Life Esidimeni Arbitration – that the Gauteng government must pay a total of R28 million to the families of 144 psychiatric patients who died between 2015 and 2017 after being transferred from private Life Esidimeni health facilities, to largely ill-equipped NGOs.
As a result of the provincial department’s decision, defenceless psychiatric patients were tortured and humiliated, 144 are known to have died, and between 45 and 62 patients are still missing.
This payment, said the judge, was “appropriate relief and compensation for the government’s unjustifiable and reckless breaches” of six sections of the Constitution and “multiple contraventions” of the National Health Act and Mental Health Care Act.
Government has to pay R1 million to each claimant, plus R20 000 to cover funeral costs, R180 000 for shock and psychological trauma and their legal costs. All the payments must be made within three months.
SAFTU was appalled and outraged at this scandal as soon as it was exposed and Moseneke’s ruling has confirmed that is was even worse – the biggest human rights atrocity in our post-apartheid history. And it was one that could have been entirely avoidable if a deadly policy had not been deliberately embarked on despite the huge risks.
It is the first time in South Africa’s history that Constitutional damages have been sought for the violation of mental health care patients’ rights, and it must set a precedent to ensure that such carnage will never be seen again.
This case is the most extreme example of the danger of outsourcing to private profit-making institutions what should be a public service to provide care to the most vulnerable members of the community.
There was no way government lawyers could convince the judge that this was anything but a conscious policy decision, taken in 2015 and 2016 by former Gauteng Health MEC, Qedani Mahlangu, and others, to transfer almost 2000 mental health patients, fully knowing the risks involved.
He ruled that “Mahlangu was more concerned with playing a political game than the deaths of patients. She was responsible for the patients and constitutionally obliged to look after them.”
“There is no doubt” he ruled that the Constitutional rights of patients and their families had clearly been violated. He described the testimonies of Mahlangu and Barney Selebano, head of the Gauteng health department at the time, as “not only untrue, but also irrational.”
He said that Mahlangu, Selebano, and Provincial Mental Health Director Dr Makgabo Manamela knew patients would be tortured, so they should have known many could die. “They misled the hearings. There were no valid reasons for the responsible Gauteng health department officials to move patients, except arrogance, political expediency and excuses of a bureaucratic ‘collective decision’.”
Mahlangu and Selebano admitted that they went ahead with the transfers of patients to save costs and to implement national policies. “But this makes absolutely no sense,” said Moseneke. “When asked how much money she saved, Mahlangu had no idea, and moving patients to community-based organisations, known as deinstitutionalisation, has globally been shown to be expensive.”
SAFTU demands that those responsible must be charged and punished. Moseneke said he would leave the SAPS to fulfil its mandate and criminally charge the three, and others involved. The federation demands that the SAPS immediately take action to implement this call and press charges.
The judge also ordered the department to provide the health ombudsman and the claimants with a “recovery plan” within six months. It must detail what the department will do to achieve “systemic change and improvement in the provision and delivery of mental healthcare”.
The federation will closely monitor the implementation of this recovery plan and argue that it should be extended to all other provincial health departments and the same principle applied in other social services, especially those affecting people’s lives.
For SAFTU the message could to be clearer. Once money becomes the main criteria for policy in mental healthcare or any other public service, the interests of those who receive these services are forgotten. Outsourcing is just a way of trying to abdicate responsibility and cut costs. In this and many other cases it does not even save money, yet the victims suffer the same horrific fate.
The judge’s ruling must be a wake-up call for the whole country. There must be a decisive break with the capitalist morality of prioritising cutting costs and maximizing profits, which is rapidly spreading from the private business sector into the public sector.
Such priorities should have no place at all in the public service, where policy must be based only on how to provide the best possible service to the people.
Never again must we see people being tortured and killed in the interest of cutting cost or bureaucratic convenience!