The Life Esidimeni Inquest, Due To Start On 19 July 2021

Background

What came to be known as the ‘Life Esidimeni tragedy’ started off as an attempt to ‘deinstitutionalise’ mental health care in South Africa in order to save costs. Near the end of 2015, the MEC for Health in Gauteng, Ms Mahlangu, announced that the Gauteng Department of Health (GDOH) would terminate its contract with a long term psychiatric hospital - Life Esidimeni. This contract had been in place for over 30 years and had provided life-long care to many of its patients.

Life Esidimeni provided ‘highly-specialised chronic care to approximately 2000 mental health care users’.[i] In order to “deinstitutionalise” mental health care, these patients were moved to NGOs and psychiatric hospitals, despite warnings and concerns from civil society. In the space of three months, ‘an estimated 1371 chronic mentally ill patients were rapidly transferred to hospitals and NGOs in Gauteng’.[ii] According to Section27, ‘the process was completely haphazard, with patients being loaded onto the back of trucks, confidential patient records being lost and chaos characterising the processes’.

There are dozens of harrowing accounts from family members and civil society describing the treatment of these patients in the hands of the NGOs, many of which were not registered, licensed. or competent to receive and care for patients.[iii] Neglect, malnutrition and rapid degradation are but a few of the abuses that these individuals suffered. The families of the mental health care users were not consulted during this time, nor was any type of due procedure followed. The GDOH ignored the pleas of civil society to follow fair processes and to ensure that the patients’ needs were taken care of. Regardless of the fact that the GDOH was advised against moving these patients, they did so, their actions resulting in gross violations of their constitutional obligations and the ‘deaths, trauma and torture’ of those who are most vulnerable.[iv]

The Life Esidimeni Arbitration

In the beginning of 2018, the Life Esidimeni arbitration took place. The claimants included the families of mental healthcare patients who had died as a result of the mass transfer as well as patients who had survived the transfer to non-governmental organisations. At the time, it was considered that arbitration was the best solution in order to facilitate closure and redress for claimants, whilst being less time consuming and cost effective than litigation. The public nature of the Life Esidimeni tragedy also suited the transparency of the arbitration process and allowed family members and those affected to share their stories and grieve with others who had experienced the same ordeal.

In the arbitration award it was stated that:

‘It is now undisputed that as a result of their move out of Life Esidimeni facilities after 1 October 2015, 144 mental health care users died and 1418 were exposed to trauma and morbidity amongst other results, but survived. Of the known survivors, the State informs that the whereabouts of 44 mental health care users remain unknown.’[v]

The Arbitrator, Justice Moseneke, found that those who made the ultimate decisions regarding the termination of the contract shifted responsibility and failed to stop the termination though they had the power to do so. In particular, he found that specific individuals within the GHOD, Ms Mahlangu (former MEC for Health), Dr Selebano (former Head of Department of Health) and Dr Manamela (former mental health care director) could not explain the urgency of cancelling the contract and the ‘true reason why the triggering decision was taken by powerful Government Officials against defenceless mental health care users and their families’.[vi]

It was found that ‘their irrational and thus unconstitutional decision was the reason for the death and torture that ensued’. This decision violated a number of constitutional obligations, including the right to life,[vii] dignity,[viii] the right to be free from cruel, inhuman or degrading treatment[ix] and torture.[x]

On 19 March 2018, Justice Moseneke ordered that the State pay common law damages in the form of R180,000 for psychological injury and trauma to each claimant, as well as R20 000 towards funeral expenses. He also ordered that a memorial be set up in remembrance of the victims of the Life Esidimeni tragedy and that the state cover counselling for up to three family members of the deceased. Constitutional damages were found to be necessary given the harrowing violation of rights and disregard for constitutional duties by the state in the amount of R1 million to each claimant.

A month after the arbitration award was handed down, the SAPS opened 46 inquest dockets into the Life Esidimeni tragedy.[xi]

Further Accountability

The need for further accountability arises for many reasons. An article in the Daily Maverick accurately stated that

‘While some measure of justice has been achieved, the conditions that gave rise to the tragedy have not gone away. Justice remains unfinished and those responsible have not been charged’.

A number of GDOH officials have faced internal disciplinary inquiries but no prosecutions have taken place.

This is why the news of the formal inquest being launched by the National Prosecuting Authority (NPA) is welcome, despite it being five years after the death of the 144 mentally ill patients. As stated in the arbitration award ‘all we can hope for is that one day, the true reason for the conception and implementation of the Marathon Project will see the light of day’ and that ‘absent the truth, closure for the claimants is only hardly possible’.[xii] It is the hope that the inquest will contribute to this truth and closure, by making it clear whether criminal prosecutions are to be instituted.

The Life Esidimeni Inquest

The Inquests Act^[xiii] provides that if it appears to the magistrate that deaths occurred and that such deaths were not due to natural causes then he shall, subject to directions of the Minister, take the necessary steps to ensure that an inquest into the circumstances and cause of the death is held by a judicial officer.[xiv]

Section 6A of the Inquests Act provides for a situation where multiple deaths are connected. In this instance ‘the public prosecutor … may request the judicial officer who is to hold an inquest to hold a joint inquest into the deaths of the persons involved’. This will be the case with the Life Esidimeni inquest. At the inquest, any person may be subpoenaed to give evidence at the inquest subject to the laws governing criminal trials.

In regards to the findings of an inquest, the Inquests act provides that the judicial officer holding the inquest shall record a finding as to the identity of the deceased persons, their cause or likely cause of death, their date of death and most importantly, ‘as to whether the death was brought about by an act or omission prima facie involving or amounting to an offence on the part of any person’.

In summary, the inquest will allow a decision to be made whether prosecutions should be instituted.

While compensation has in some ways vindicated those affected, both family and survivors, no-one has been held to account for the deaths of 144 patients. The inquest findings and potential subsequent prosecutions will not only be vital for the vindication of the rights of those affected by the Life Esidimeni tragedy but will also serve as a strong message to those in charge of healthcare services for vulnerable people in South Africa. This will encourage those who have been abused within the healthcare system, by showing that there are processes available to them to hold those in charge to account for their actions.

The word ‘Esidimeni’ means ‘place of dignity’.[xv] Although the tragedy of 2017 violated the dignity of those affected in almost every way, the outcome of the inquest will hopefully assist in restoring dignity to family members and survivors.

Sophie Smit
Legal Researcher
sophie@hsf.org.za

[i] Section 27 website, available here.