The Life Esidimeni inquest resumed on 26 October at the Gauteng Division of the High Court in Pretoria, with SECTION27 arguing for culpable homicide charges to be instituted against Gauteng Health MEC, Qedani Mahlangu, former Gauteng mental health head, Dr Makgabo Manamela, and the owner of Precious Angels NGO, Ethel Ncube.

The purpose of the inquest, which began in July 2021, is to determine liability and cause of the deaths of 141 mental healthcare users who were moved from the Life Esidimeni health facility to non-governmental organisations in 2016. 

They were part of a group of more than 1,500 patients who were transferred out of Life Esidimeni when the Gauteng Department of Health terminated its long-standing contract with the service provider.

Read more in Daily Maverick: Advocates argue for culpable homicide charges against top health officials for 2015 tragedy

From 30 October to 2 November, legal representatives of officials implicated in the matter presented oral arguments before the court, presided over by Judge Mmonoa Teffo. 

Manamela caught between rock and hard place, says lawyer

Former Gauteng mental health head Dr Makgabo Manamela’s lawyer argued that the responsibility for identifying and licensing NGOs lay with the district and not the Gauteng provincial health department. Manamela’s lawyer also argued that Manamela and her team were caught between a rock and a hard place and that it would have been impossible for her to inspect all the NGOs that were tasked with taking in the Esidimeni patients. 

“When the MEC [Qedani Mahlangu] was appointed in March 2014, she then came up with an additional proposal of 20% reduction of beds. However this did not even take off because there were a number of objections from clinicians and all other role players,” said Advocate Russell Sibara, Manamela’s lawyer.

“That is what Dr Manamela was busy with at the time of the reduction of beds. At all material times, Dr Manamela was the director of mental health care, she was an employee of the department, and others who were part and parcel of the termination plan.” 

Sibara also said that there was no longer any relationship between the department and Life Esidimeni. “At the time, there was no longer any relationship between the department and Life Esidimeni as a consequence of termination of the contract, which Dr Manamela was not part of the decision to terminate. Her team including the directorate were not part of the termination,” he said. 

Department at fault for lack of due diligence

Ethel Ncube’s lawyer said she [Ncube] should bear no responsibility for the department’s inability to do their due diligence. Ncube is the owner of Precious Angels NGO which saw the deaths of 20 mental health care users, the first of whom died less than two weeks after being moved into her care. “The question that arises is if the decision was unlawful, then it follows that the instructions emanating from that decision were unlawful as well,” said Advocate Tlou Phihlela, Ncube’s lawyer. 

Former Health MEC Mahlangu had testified that the decision to terminate the contract was made by the premier’s budget committee, chaired by former premier David Makhura. 

However, the lawyer representing Makhura denied this. 

“The decision to terminate was indeed taken by the department, which was the relevant authority then to do so because this was clearly a procurement matter,” said Advocate William Mokhare. 

The other issue which is also significant to support this conclusion is the decision to take the patients to NGOs, he said. 

“Mrs Mahlangu confirmed in evidence that was under cross examination, that the decision to take the mental health care users to NGOs was taken by her own department and that this decision was never even communicated to the provincial budget committee,” said Mokhare. 

Lack of detailed and accurate medical records to blame 

Ubuhle Benkosi, Mosego Home, and Takalani Home were NGOs to which patients were transferred. They have all been implicated  in the tragedy, but their lawyer argued that the Life Esidimeni management failed to provide them with detailed and correct medical records for each patient. 

Advocate Ebenezer Prophy argued that the patients who were under his clients’ care died of natural causes, even though the circumstances surrounding their deaths remain questionable. 

Prophy said that there were interruptions to continuous care of patients because regardless of the avenues the NGOs tried, the outdated periodic reports for many patients meant that NGOs could not rely on these records to determine how the patient is cared for or where their health stands. 

“Even when the expert panel report was conducting their investigations, she confirmed that even at the tail end of the investigation the clinical records made available from Life Esidimeni were often incomplete. There is nobody before this court that ever received complete medical records from Life Esidimeni,” said Prophy. 

Foreseeability key to preventing loss of lives

According to evidence leaders at the inquest, if the moving of patients had been planned properly and all medical and relevant documents had been submitted to the new locations, they would have been able to foresee the problems that would arise, and deal with them before the Life Esidimeni  patients lost their lives.

“Foreseeability is important in respect of the only two criminal offences which may be relevant to this matter and that is either murder or culpable homicide and both involve foreseeability as part of their test,” said Advocate Harry van Bergen, evidence leader. 

Complaint laid against SECTION27

Phihlela issued a complaint regarding SECTION27 releasing a press statement of their argument, and said that the public interest law centre had committed an offence under the Inquest Act. “It prejudices our client because our client was subject to witness protection because of this case as her life was being threatened,” he said. 

Phihlela also complained about a Daily Maverick article that was published and included a picture of Ncube, Mahlangu, and Manamela. “That is problematic and it’s dangerous, it puts our client’s life at risk and we ask this court to protect our client,” he said. 

Adila Hassim, representing SECTION27, argued that the inquest was a public hearing in the interests of open justice. “The media reporting on it is not in violation of anything, media reports on cases all the time,” she said. 

Hassim also said there was no basis to argue that this was a criminal offence and that it is Phihlela’s duty to ask that his client testify in camera or for relevant protection if he deemed it necessary. 

Judge Teffo said if Phihlela believes this is a matter for serious concern, he has a right to advise his client to report the matter to the police so that it can be investigated and a charge can be laid against responsible individuals. “I cannot find any prejudice or influence to the proceedings that the court is busy with,” she said. 

Teffo is expected to rule on whether the conduct of any person contributed to any of the deaths, after which the National Prosecuting Authority will decide whether to prosecute. A date has not been specified for when the findings and recommendations of the inquest will be revealed. DM