Officials in Esidimeni behaved unconstitutionally‚ finds Moseneke

Former Deputy Chief Justice Dikgang Moseneke delivers the tabled compensation to families effected by the moving of mental health care users from Life Esidimeni to unequipped NGO’s that resulted in the deaths of 143 patients.
Former Deputy Chief Justice Dikgang Moseneke delivers the tabled compensation to families effected by the moving of mental health care users from Life Esidimeni to unequipped NGO’s that resulted in the deaths of 143 patients.
Image: Alaister Russell

The reasons given by the officials for the decision to end the Life Esidimeni contract were not cogent‚ said Justice Dikgang Moseneke on Monday on the last day of the hearings.

Moseneke is reading parts of his judgment explaining what award he will make to families of some of the 144 dead. He has found against officials and found they acted unconstitutionally.

The hearings were held to help families find closure and equitable redress after government forcibly moved 1 700 mentally ill patients into ill-equipped illegal NGOs.

Moseneke described the move as an arbitrary mass discharge of patients and the care received by patients as "torture".

Three top officials - then Gauteng health MEC Dr Qedani Mahlangu‚ then head of department Barney Selebano and head of mental health directorate Makgabo Manamela - testified at the hearings last year. They claimed that the move was done to save money and to move patients out institutions in the aim of deinstitutionalisation.

Mahlangu and Selebano also claimed the contract with Life Esidimeni homes was ended after the auditor general had raised concerns about the more than 30-year length of the contract with the private provider.

Moseneke rejected their reasons. “The reasons advanced for the termination of the contract have been shown to be untrue.”

Mahlangu and Selebano said they had to terminate the more than 30-year contract because the auditor general was unhappy with the “evergreen contract”. Moseneke didn’t believe them. “None provided evidence for this ostensible reason.”

“Both Mahlangu and Selebano called the name of the auditor general in vain‚” he added.

He also said the first reason to deinstitutionalise patients was not valid. He found that NGOs were as restrictive as hospitals and many miles away from any community isolating patients.

He also didn’t believe that the contract was ended to save money. Moseneke described a report by the Health Advanced Institute that showed the contract between Life Esidimeni and the Gauteng Department of Health provided good value for money. This was a "finding Dr Selebano remembered well and accepted".

But Moseneke didn’t believe Mahlangu's excuse that she didn’t see the report showing the Esidimeni contract was affordable.

"She complained unsurprisingly and unconvincingly that this report was kept away from her. She couldn’t explain why her department would conceal a diagnostic report of this importance. Her stance begs the question - why did she not demand the diagnostic report before pulling such a big trigger?”

He then concluded: “Cost savings cannot be the real reason behind the marathon project.”

"What then was real reason?" he asked.

Moseneke found the government acted unconstitutionally. “Besides the reasons [for contract termination] being untruthful‚ the decision on which they were made was irrational.”

He says the irrational decisions were in “blatant breach of law and Constitution”. This is important because it suggests that families of the dead will be awarded constitutional damages.

Both Solidarity representing four families and Section 27‚ representing more than 60 families‚ have asked for constitutional damages on the bases that patients’ constitutional rights were violated. The state opposed this.

Moseneke has found that state behaved unconstitutionality by the irrational decision to end the Life Esidimeni contract.

He describes the treatment of patients as torture and spoke about NGOs as places were "death and torture ensued".

Former deputy chief justice Diking Moseneke announced his judgment on the Life Esidimeni victims on Monday March 19 2018, awarding the families R1.2-million each.

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