South Africa

Life Esidimeni: Arbitration – painful, flawed, full of lies – still honoured the victims

By Greg Nicolson 2 February 2018

Oral evidence at the Life Esidimeni arbitration has come to an end. Family members have welcomed the process, but the saga isn’t over, not even close. By GREG NICOLSON.

On Thursday, Christine Nxumalo went to her child’s sports day. She put her phone on silent and for a few hours was able to step away from Life Esidimeni. When she checked her phone, she had missed calls and messages, all about the tragedy that has claimed at least 144 lives.

I can’t remember the last time I had a normal day. I don’t remember what a normal day is,” said Nxumalo, who acts as the spokesperson for the Life Esidimeni family committee. Her sister, Virginia Machpelah, died after she was moved from the healthcare facility to the Precious Angels NGO.

Nxumalo and other relatives of patients who died have been attending the Life Esidimeni arbitration hearings in Johannesburg since they began in October. As the hearings emotionally wrapped up the presentation of oral evidence on Wednesday, the arbitration has been received as both groundbreaking and heartbreaking.

We didn’t think we were all going to make it through this but to be where we are now it’s just like wow,” said Nxumalo on Thursday. “This process has given us way more than we thought we’d walk away with.”

The arbitration, led by former Deputy Chief Justice Dikgang Moseneke, has been hailed for holding government officials accountable. Nxumalo said the family members were just average citizens who had managed to ensure that government leaders were questioned on their role in the deaths of at least 144 chronic psychiatric patients, which should be celebrated, even if some of those leaders withheld the truth or lied during their testimonies.

I think that it has been a very important and precedent-setting process,” said Mark Heywood, executive director of SECTION27, which represents more than 70 of the families who lost their loved ones. He said it’s the first time in democratic South Africa that politicians and senior government officials have been held accountable for their day-to-day actions.

Democratic Alliance (DA) shadow MEC of Gauteng health Jack Bloom, who has played a key role in extricating information from the government, called the arbitration “groundbreaking”. He said it could set a precedent on holding government officials accountable. Politicians could no longer hide behind excuses of “collective responsibility”.

You must find out what happened in your office, question your officials,” he said about the new standard set.

There is still much scepticism, though.

I only heard lies after lies,” said Elizabeth Phangela, whose younger brother Christopher died after he was moved from Life Esidimeni to the Precious Angels NGO. She said Gauteng department of health officials who appeared, particularly former MEC Qedani Mahlangu, former head of department Dr Barney Selebano, and former director of mental health services Dr Makgabo Manamela, refused to tell the truth and only blamed each other. “Even now I didn’t get any answers.”

Mahlangu, Selebano and Manamela’s testimonies at the arbitration were contradictory and evasive and they were reminded by both Moseneke and the lawyers involved that they were under oath. All have since resigned from their positions and are under investigation by the police. For some family members, putting them under cross-examination was a laudable feat. But all of those that Daily Maverick spoke to on Thursday agreed that their lack of honesty was painful and insulting.

Department of health officials claimed there were three reasons for cancelling the longstanding Life Esidimeni contract and moving around 1,700 psychiatric patients into NGOs and home care. They said they were under pressure to cut costs, the Auditor General had raised concerns about Life Esidimeni’s long-term agreement with the province, and there was a policy set by national government to de-institutionalise patients.

This week top politicians repudiated those claims and laid the blame on Mahlangu and her officials. But questions still remain over their involvement in the process and whether they could have done more to avoid the catastrophe.

Gauteng Finance MEC Barbara Creecy contradicted Mahlangu’s claim that she had cancelled the contract after an order for all departments to cut costs:

There is no evidence that there was ever an intention to save money through this project and I think I have shown in the budget that I tabled, the budget for mental health, there is no evidence of cost-cutting in the budget for mental health and I dispute the suggestion that this was a cost-cutting exercise,” said Creecy. She also said there was no record of the Auditor General questioning Life Esidimeni’s contract.

Creecy’s honesty was welcomed by relatives, but some of her claims have been questioned. The provincial health department had been placed under administration by Creecy’s department because of its poor finances, yet it approved millions spent on consultants, including a law firm paid R59-million for 10 months’ worth of work.

She said there was no reduction in the department’s mental healthcare budget, but as a proportion of the total departmental budget, spending on mental healthcare did get reduced every year for the last five years. Bloom said the health department is in obvious financial distress and Mahlangu probably did cancel the Esidimeni contract to save costs.

Gauteng Premier David Makhura’s appearance at the arbitration was also well received. In an emotional apology, he committed to sorting out the rot in the department and ensuring no such tragedies ever occur again:

The families are the only ones who can forgive us, but if we are not frank and honest I wouldn’t understand how we could expect the families to forgive us and I hope what we have done from yesterday and today begins to provide some answers, not all,” he said.

The premier was questioned repeatedly on what he knew about the process of moving patients to NGOs, where patients died in inhumane conditions, and whether he could have intervened and saved lives. He claimed he only knew of the plan when the first deaths were announced, but Bloom has released a transcript from the Gauteng provincial legislature when Makhura was present where Mahlangu clearly spoke about NGOs.

He sticks by what he said, that the MEC or the department never informed him about the plan to move patients to NGOs,” said the premier’s spokesperson Thabo Masebe on Thursday. Replying to Bloom’s claims that Makhura might be guilty of perjury for his comments at the arbitration, Masebe said Bloom should lay charges if he believes that’s the case.

Yesterday was intense,” said Nxumalo on the final day of oral evidence at the hearings. SECTION27 announced that there could be 12 more deaths unaccounted for, taking the potential death toll to 156.

Then Health Minister Aaron Motsoaledi spoke:

Embarrassment does not really come to define the feeling I’m having,” he said before breaking down, holding his hands over his face. “As the minister of health I wish to apologise unconditionally to both the families and relatives of the deceased and those who are still living, and the whole nation at large. We have really wronged them in a way unimaginable.”

Boitumelo Nangena, whose mother Rehab Nangena died at Takalani Home, questioned the politicians’ apologies. “With all their apologies you can’t really determine whether it’s a political game or they’re trying to save their skins,” she said.

All of the supposed reasons for implementing what was called the Gauteng Mental Health Marathon Project have been proven false, but even after the arbitration has been sitting since November there is still no clear explanation as to why the project went ahead after the department was repeatedly warned of its potentially dire consequences.

It’s very unsatisfying for the families only to know what weren’t the reasons,” said Heywood.

Bloom said, “Let’s start with what’s not been achieved: the motivation is still puzzling. Why did they do it?”

The arbitration has failed to reveal why the department proceeded with the project and the number of patients who have died or are missing remains in dispute. Revelations of such negligence and lack of professionalism at Gauteng health have defined this saga.

And yet, there’s optimism. Cassey Chambers, operations director at the South African Depression and Anxiety Group (Sadag), had warned the department of impending disaster before it implemented the project and on Thursday said it was depressing to hear how the department functions.

She said the situation has hit “rock bottom” and “the only way is up”. Chambers, however, said civil society would have to keep a close eye on government as it could no longer be trusted. “I am optimistic but through this whole journey from the very beginning we’ve lost trust in government as civil society.”

Moseneke will hear closing arguments at the arbitration on Thursday and Friday next week and later release his findings, including a compensation award for the families, which could be lower than some expect. Stakeholders are now largely looking to the police to criminally charge implicated officials. They’re also watching government leaders to ensure they act on their promises to improve the mental healthcare system.

The lessons of this will only really be learnt if there’s a determination to hold oversight over the police and when some of the people responsible are in prison,” said Heywood.

I think they belong in jail. They killed our people and took the money,” said Phangela.

Chambers said, “This whole Esidimeni saga is not over, and not over by a long shot.”

The Special Investigating Unit (SIU) and the SAPS have been investigating the deaths resulting from the Life Esidimeni move, but no charges have yet been laid. The SIU’s investigation was highlighted by politicians this week who said the unit must find out whether corruption was the motivation for the project. Multiple sources doubted the SIU’s effectiveness. Its investigation into former Gauteng health MEC Brian Hlongwa, which began in 2011 and dealt with much of the rot the department is still inundated by, is yet to be released.

Dr Danie Brink, chief executive at Solidarity Helping Hand, which represents four families at the arbitration, said the process had provided much clarity.

We are hopeful that the masterminds, kingpins behind the Marathon Project (previous MEC Mahlangu, Dr Selebano and Dr Manamela) will all have their day in court. The evidence at the arbitration has at least established a prima facie case of unlawful conduct on their part,” he said. “It is however not for this tribunal to decide whether such criminal charges should be instituted or not and that responsibility lies with the NPA.”

While we wait for the Life Esidimeni arbitration’s report to be released after closing arguments are presented, it will probably be remembered for bringing all of the accused so close to the relatives of the victims. Phangela on Thursday recounted her chance encounter with Ethel Ncube, who ran the Precious Angels NGO where her brother died.

The pair met in the toilet at the arbitration. Ncube tried to hug her and Phangela stepped back. Ncube told her not to worry and that everything would be okay. Phangela said she could only forgive Ncube if she gave an honest account to the arbitration. She went on to lie and pass the buck, said Phangela. The Life Esidimeni arbitration has seen countless examples of bringing the alleged offenders so close to their victims.

I can honestly say I just want it to be all over,” said Nangena, who is looking at the politicians to now put their words into action.

Nxumalo, who has dedicated her life to achieving justice for the victims of Life Esidimeni, said her deceased sister would probably be satisfied, watching the arbitrations. “Right now, where she is right now, I think she’d be happy. She didn’t die in vain. Her name will be remembered.” DM

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