“Ms Mahlangu, Dr Selebano and Dr Manamela … refused to stop the mass transfer of mental health care users to non-governmental organisations not fit for purpose. They chose, knowing all the facts and risks, not to be responsive to the reasonable and lawful request and demands of the claimants. Their attitude was perhaps summarised by Ms Mahlangu who on one occasion retorted that: “If I were a prophet Justice, I would have had foresight.” – Judgment of Justice D Moseneke, para 199.
On Monday, 19 March 2018 in the hours immediately after Justice Dikgang Moseneke read out the last lines of his judgment in the Life Esidimeni Arbitration, there was a media scrum the likes of which I have not experienced before. Microphones and cameras demanded immediate comment and response. I obliged. But as I shuffled from interview to interview, my brain was silently roaring in protest. It hadn’t yet had time to makes sense of what had just been said. I felt disoriented, not only by the dense layers of the judgment, but by the whole drama of the Life Esidimeni carnage.
My brain wanted to short-circuit. There was too much to process, too many layers, too much emotion, too much answered. Too much still unanswered.
The sudden demand to offer sound bites was a shock to the senses, a sharp juxtaposition to the quiet of the preceding hours.
Justice Moseneke had read out his findings in the Pavilion Room of the Emoyeni Conference Centre, once the living room for generations of Randlords hoarding an elite’s-eye view over the Johannesburg forest. There was near silence. In a room of several hundred people, there was a palpable sense of pain and expectation.
At times, it felt like the ghosts of the 144 dead were also present.
I sat jammed between two people whose family members had been “tortured” – Moseneke’s word not mine – and then died. On my left was 80-year-old Rev Joseph Maboe, whose oldest child Billy had been transferred to Bophelong, a fake NGO in Hammanskraal despite the Reverend’s explicit resistance. Rev Maboe was not contacted when Billy was moved, or told to where he had been moved. Billy was only located after he called his father on his birthday.
When the Reverend next met Billy he was “dehydrated; he was hungry; he was filthy; he was smelly”; Rev Maboe could see “death in his (son’s) face”. Billy was so hungry that he ate the plastic packet the chips had come in. Billy died on 22 July 2016, six days after reuniting with his father.
Apart from Justice Moseneke’s voice, all I could hear was the hum of the translation being fed into my neighbour’s ear. And the occasional stifled sob. As the now familiar story was unravelled one more time there was rapt attention. This time though, the story of pain was not told through the mouth of a poor “nobody”, but through the “legitimate and authoritative” mouth of a judge. A distinguished man had picked up the scattered pieces of a jigsaw and made them into a picture.
The picture told a tale.
The tale was a terrifying one. In his opening paragraph Justice Moseneke summarised it as “a harrowing account of the death, torture and disappearance of utterly vulnerable mental health care users in the care of an admittedly delinquent provincial government … a story of the searing anguish of the affected mental health care users and of the collective shock and pain of many other caring people in our land and elsewhere in the world”.
Listening to Justice Moseneke for three hours felt like a form of water torture. I wanted to put a pause on the words that described the multiple and serial human rights violations and assaults. Or perhaps just fast-forward through the thickets of ugliness and sorrow to get to the end. But this was real time. No such numbing facility existed.
That partly helps explain why the end, when it came, was such a relief. Families wept and hugged lawyers. Lawyers wept and hugged families. Politicians like Gauteng Premier David Makhura looked gobsmacked. The lightning bolt had missed them, but only narrowly. Such scenes of joy and sorrow have not been seen inside a courtroom (except it was not really a courtroom) since the great political trials of yesteryear.
Somewhere, far out of sight, Qedani Mahlangu, Barney Selebano and Makgoba Manamela must have turned off their TVs and wondered what to do next. Although not a criminal trial, they had been fingered, their testimony described as “plainly untrue”, “patently untrue”, “fabricated”, “convenient”; their conduct “irrational, inexplicable and highly reckless” in Mahlangu’s case “with an ulterior motive that remains concealed”; their actions and inactions directly connecting them to foreseeable deaths and torture.
The years of their impunity and no accountability were about to be over.
In that context I did my best to sound sensible in front of the media. But, we must all admit, there’s something much deeper going on here.
After one night’s rest, whatever it is that the subconscious mind does during sleep to try to order and organise experience had begun to make some sense and draw some conclusions.
First of all, I made up my mind that the outcome of the Life Esidimeni Arbitration cannot be called a “victory”. How can you call something a victory when what started the process was something so murderous and degrading, so inhumane. The constitutional damages are groundbreaking, and will bring unknown material relief to these many poverty-stricken families, but a million rand cannot erase the stain.
Instead, what Justice Moseneke gave us was a vindication of rights. Most importantly it was a vindication of the right to dignity of people that many subconsciously consider to be lesser beings, children of a lesser God, people with mental illnesses. Moseneke refuted this by insisting that people with mental illness are rights-bearers, people with as much inherent dignity and capacity to love, to suffer, to dream, to feel joy, as the rest of us.
Lawyers and scholars will dissect and write about this judgment much more intelligently than I can. However, in this one particular respect Justice Moseneke bent the legal stick in an important direction towards incorporating values of equality and Ubuntu.
Generally, the law calculates the quantum of damages according to a crude assessment of the economic value of the injured or deceased person. Thus, a Michael Komape is worth next to nothing, because he was a child of a poor family. People hospitalised with mental illnesses, wards of the state, even less.
But Justice Moseneke’s approach in awarding constitutional damages of R1-million-plus per tortured person – dead or alive – begins to change this line of legal thinking, if not yet the jurisprudence. Moseneke seems to be saying “measure life by the dignity and capability that inheres in each of us”. Not by our money-making potential.
What price, what value, a poor life? There’s the rub.
In the hours immediately after the judgment I described the Life Esidimeni mass removals as the greatest loss of life due to state and political failure that has taken place in our democracy. It’s number one on the podium. Even the Marikana massacre pales in comparison. Death by listeriosis might now be in contention.
But my rested brain reminded me that I’m wrong. Less than 20 years ago hundreds of thousands of poor people died needlessly when then President Thabo Mbeki, Heath Minister Dr Manto Tshabalala-Msimang and their parasitic supporters chose to deny them life-saving anti-retroviral medicines as they became sick with AIDS, made some of them doubt the efficacy of these drugs and take quack remedies instead. After several years Mbeki’s comrades found the courage to over-rule him. But there was no inquest or arbitration into the denial of access to or questioning of AIDS treatment.
Judge Moseneke has ordered the construction of “a monument at an appropriate and prominent location”. Yet for the victims of AIDS denialism there is still no official, constitutionally sanctioned place for the families of the dead to tell their stories. There was no sanction. Indeed, some leaders are in the process of recycling Mbeki as a worthy elder statesman. They seem already to have chosen forgetting over memory.
So measured against AIDS impunity, the judgment in the Life Esidimeni arbitration was a vindication of an accountability that would not have happened 15 years ago.
Our democracy is striking back against impunity. Let’s hope it continues along this road.
The judgment was also vindication of the families who struggled for Justice. People like Christine Nxumalo – one of the leaders of the family committee – endured not just the loss of her sister, but her niece as well. Despite pain and poverty, despite coming from different backgrounds and communities, the families came together. Steadfastly, mostly out of sight, they told their stories. Each affidavit and testimony put before Justice Moseneke became a jigsaw piece, a refusal to forget.
One thread of the Life Esidimeni story is about fake NGOs, of which there are many, many more than those that occupied the Esidimeni stage. But it took real NGOs, like the South African Depression and Anxiety Group (SADAG) and SECTION27, to vindicate people’s rights.
Another thread of the story was of fake health professionals, men and women who have turned their backs on their duty of care to protect “handsome monthly salaries” or in pursuit of “ulterior motives”. But it was real health professionals like Dr Mvuyiso Talatala, a psychiatrist who builds on the traditions of those doctors who took risks to challenge apartheid medicine, whose testimony showed that there remains much good in our system.
If only we recognised and rewarded it.
Finally, by the next morning, I understood how although Qedani Mahlangu and her crew had dragged the Constitution into the mud, for one of the first times they were not able to do so with impunity. Ultimately, Justice Moseneke’s judgment and order was a vindication of the Constitution. It was proof that even in a constitutional order good and evil will be in contest. Perhaps especially so. But where good organises and fights back, justice may triumph.
On Human Rights Day 2018 that, perhaps, is a green shoot for the beginning of a new accountability and respect for human rights in our democracy. Whether that shoot takes hold though depends on all of us. DM