The families of the Life Esidimeni tragedy say there is hope that justice will be served and accountability taken for the loss of lives of mental health patients, who died between 23 March and 19 December 2016 in Gauteng.
About 100 mental health patients died last year when they were moved from Life Esidimeni Healthcare into inadequately equipped, unsanctioned NGO facilities. The move was facilitated under the Gauteng Mental Health Marathon Project (GMHMP), which has since been stopped.
According to Health Ombudsman Professor Malegapuru Makgoba’s report released in February, all 27 NGOs to which the patients were transferred operated under invalid licences and all patients who died at these facilities died under unlawful circumstances.
On Tuesday, retired Deputy Chief Justice Dikgang Moseneke held a media briefing in Johannesburg on the Life Esidimeni Alternative Dispute Resolution (ADR) process. Moseneke was appointed as the arbitrator of the ADR process, as per the recommendations of the ombudsman report.
He announced that an agreement was reached with the legal representatives of the affected families to hold public hearings on the Life Esidimeni tragedy.
The hearings will be held at Emoyeni Conference Centre, 15 Jubilee Road, Parktown, Johannesburg, for three weeks starting from 9 October to 30 October 2017.
“If it is necessary, further public hearings will be held. At the end of process, the arbitrator [Moseneke] is required to issue a binding award that represents equitable redress.
“In order to ensure an efficient and orderly process, the arbitrator has appointed counsel to lead evidence in consultation with counsel for all the parties concerned. All parties will also be entitled to lead oral or documentary evidence and make submissions as they may elect,” Moseneke said.
He said the ADR process will have the proper administrative support, established by himself and funded by the State.
Moseneke hopes to finish the work by the end of this year or early in 2018.
Families in pain
Christine Nxumalo, who lost a loved one in the tragedy, said her family hasn’t been the same since they learned of her sister’s death. Nxumalo’s sister died under conditions found to be “most negligent, reckless and showed a total lack of respect for human dignity, care and human life”.
“It has been horrible. We buried my sister last year at the beginning of September. It has been a rollercoaster because even burying her was a traumatic experience,” said Nxumalo.
After the burial, the family had no time to grieve as they continued to seek justice for the deceased.
“It has seriously been an intense period. I do not really know how I feel because I have not really been myself throughout the process [of fighting for justice], I have not had time to sit down and grieve. We have been fighting for justice to be served for my late sister.”
She said while the journey has not been easy, the cooperation and willingness of national and provincial government to work with affected families to address their issues is giving her hope.
“We are getting there. I can see progress. I pray for justice to be served for my sister. I think my sister’s soul will rest in peace if people are held accountable.”
Nxumalo said she is grateful that the provincial government has accepted accountability for their actions, which resulted in the death of so many patients.
“This is important for all affected families, not only us who have lost family members but also those who were traumatised by the suffering endured by patients who survived. It was traumatic for all of us. All we want is closure and accountability.”
Moseneke reiterated during the briefing that the State is reaching out to the grieving families.
“The starting point of the arbitration agreement is that the National Minister of Health and the Premier of Gauteng, acting on behalf of the State, have conceded unconditionally the legal merits of the claims by each of the claimants, which are more fully described in the arbitration agreement…
“Put clearer, the State concedes that the conduct of its functionaries and employees unlawfully and negligently caused the death of the deceased or other bodily or emotional or psychological harm to the survivors of the tragedy and that the State is liable to afford all of them equitable redress, including compensation.”
Nxumalo — who stood with her late sister’s only child, a daughter, throughout her interview with SAnews — said they could not have got through the process without the help of the South African Depression and Anxiety Group (SADG), SECTION27, Gauteng Premier’s Office and the Department of Social Development, who are providing counselling to the affected families.
Equitable redress sought for victims
One of the recommendations made by the Ombud was that the National Minister of Health must lead and facilitate a process, jointly with the Premier of Gauteng, to contact all affected individuals and families and enter into the ADR process.
The outcome of ADR should determine the way forward such as means of redress and compensation. In July, Justice Moseneke was appointed to lead the ADR process.
Moseneke has convened a series of consultative meetings with the National Minister of Health, the Premier, the Family Committee representing deceased and surviving mental health patients and their legal representatives –SECTION27.
He said the preparatory process was joined by an additional set of legal representatives – Hurter Spies Attorneys.
“The primary purpose of the joint meetings was openly to assist the parties to identify the ADR process most suited to what the parties consider just and equitable and to decide, by agreement, on the modalities of the ADR process.
“The parties have chosen arbitration as the principal form of resolving their dispute and arriving at equitable redress that must include compensation which is just and equitable to all concerned.”
It is hoped that even after the ADR process has started, more concerned families will seek to join or benefit from the outcome of the arbitral process.
“They are invited and urged to make contact with the office of the Arbitrator, even at this late stage,” Moseneke said.
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