Opinionista Helen Zille 26 March 2018

From the Inside: Class action lawsuits and a capable state

Top of the priority list is the need to build a professional, independent and capable state. This requires at least two things. A firm policy on meritocratic appointments in every position, and a far easier method of dismissing people who cannot or will not do the job they are paid for.

Every now and again, something happens that fundamentally alters the terrain in which government functions, with profound implications for the decisions we take.

The recent R135-million arbitration award by former deputy chief Justice, Dikgang Moseneke, to the families of mental health patients who died in grim circumstances after being moved out of the Life Esidimeni facility is one such event.

I followed the case in the local newspapers and, inevitably, saw a partial picture.

I then spent Human Rights Day reading the full arbitration report and was shaken at the extent of government lethargy and cruelty it portrayed.

Knowing how things happen in government, I could also envisage how these events unfolded. I imagine that the Gauteng department of health, trying to implement the national policy of de-institutionalising mental health patients, was chasing a target in their annual performance plan, in order to meet the requirement of a clean audit.

That is no excuse for what transpired, but it reflects how the quest to meet audit targets can trump all other considerations.

What makes this arbitration outcome fundamentally different from other awards for damages against government is the fact that it arose from a class action suit, not an individual claim. The distinction is fundamental and the implications far-reaching.

Individual claims against provincial health departments for the consequences of medical negligence or malpractice are commonplace – there have been more than 5,500 in South Africa since 2014 – with significant budgetary implications.

In Gauteng, for example, the health department faces unresolved medico-legal claims of R17-billion (and this was before the Esidimeni award). In the Eastern Cape, unresolved claims amount to around R12-billion, in a province with an annual health budget of R22-billion. The province does not have the capacity to separate the valid from the invalid (or even fraudulent) claims, and has contracted a leading international law firm, at significant cost, to help address a situation that has spiralled out of control.

Every province faces this challenge to a greater or lesser degree. You can find lawyers’ touts working the queues at many paediatric facilities countrywide, looking for children with any type of disability, encouraging mothers to lodge claims against the state. Some are valid claims, in which families have a right to compensation. Others are not. As the numbers grow it is extremely difficult, time-consuming and costly to distinguish which is which; and in those cases where compensation is due, what a just and fair amount would be.

At the same time, provincial budgets are being cut with the consequent decline in service quality, leading to an increase in valid claims – a perpetual vicious cycle.

In the Western Cape (where we have the lowest number and quantum of claims) our policy position is clear: If any patient has suffered an injury with permanent implications, because of our negligence or malpractice, they (and/or their families) are entitled to just and fair compensation. There have been landmark court cases to determine what this involves. Inevitably, though, whenever large amounts of money come into play, other agendas surface which have got nothing to do with the well-being of the patients or those who have suffered personal trauma.

Class action claims against government for unmet constitutional obligations that are awarded to a category of people (rather than individuals) take us into a totally different realm. And not only in mental health, where, I have no doubt, the Life Esidimeni scandal is merely the tip of an iceberg, as I explain in a recent column.

Let’s hypothetically look at another example of a provincial government competence: basic education.

The Bill of Rights in the Constitution gives the undertaking that “Everyone has the right to basic education”. This is an absolute right. Provincial governments must provide it to every person, irrespective of their circumstances. Even children with profound intellectual disabilities, who will never master the skill of sitting on their own, have a right to as much education as they can benefit from, a costly challenge.

We had previously budgeted for their care solely under the social development and health portfolios. But when this limitation was challenged by organisations representing the profoundly intellectually impaired, it became clear that an additional educational allocation was required too.

But what about children without intellectual disabilities? And the many gifted children across all communities? What sort of education are we providing for them? For the purposes of interpreting our responsibilities under the Constitution, how do we reach agreement on the definition of the Constitution’s commitment to “basic education”?

As far as I know, this has not yet been clarified in a court of law. But I imagine it would require that a child, without an intellectual disability, would be able to read, write and calculate when they leave high school, at a level required of an entrant into the world of work in the 21st Century economy.

And are we achieving this? In some cases, yes. In many others, the honest answer is no. Indeed, sometimes teachers themselves cannot pass tests that measure the attainment of basic education milestones.

And even with excellent teachers (of which there are many) we often battle to meet constitutional standards for all children. Seared in my memory is an experience of a visit to a school in the Ceres district when I was still the provincial MEC for education. I entered a primary school class with an excellent teacher, who explained to me what a battle it was to get the children to achieve basic literacy. Many of them, she said, suffered from some degree of foetal alcohol syndrome. And because of the imposition of an “inclusion” policy, without adequate resources to assist individual learners, the intellectually gifted children were unable to achieve their full potential. The teacher had to move through the curriculum at a pace the majority could sustain.

To add to our FAS problem, we have a growing number of children who have intellectual impairments as a result of drug-addicted mothers. Their numbers are likely to become significant in many urban classrooms, where they will struggle to learn alongside children with unimpaired brains. How do we balance the needs of all, within resource constraints, to meet our constitutional obligations?

It is a profound and tragic irony that, while we cannot fulfil our most basic constitutional obligations, the national government continues to cut the budgets we require to do so, in order to deliver “rights” that are not in the Constitution at all – such as free university education.

Most children in South Africa cannot achieve sufficient basic education standards to access tertiary studies. As I read the Moseneke arbitration award, I imagined a class action suit on behalf of children who had been “progressed” through school (in terms of government policy) without mastering the essentials of “basic education”. On the basis of the Moseneke precedent, they would be in a position to claim constitutional damages, including the loss of future earnings. If they succeeded, there would not be enough money in the entire national Budget to meet their claims.

The fact is, whether we like it or not, as hard as we try and as desirable as it may be, we cannot (under current circumstances) live up to the lofty ideals of our Constitution. In many cases, we are actually going backwards.

In my spot checks on Western Cape schools in recent weeks, I found up to 80 children in a single class. In one case, I found a hall where three separate classes were being conducted simultaneously. While I was very impressed with how the relevant schools and teachers were dealing with these challenges, I think it is fair to say that adequate basic education is very difficult to achieve in these circumstances, however competent the teacher may be.

Despite our pleas for people to register their children in the previous year, many thousands still arrive without notice from other provinces, during the initial weeks of the first term of a new year. This year these additional learners numbered 25,000 – the equivalent of 25 new schools. They have to be accommodated in existing schools. Meanwhile the money allocated for their education still goes to their province of origin, on the basis of the last census, while we have to provide a constitutionally compliant level of education. It is, frankly, impossible.

It is often made worse by the fact that not all educators are of the same calibre as the ones I encountered on last week’s visits. We have hundreds who should not be standing in front of classrooms at all – and, under our powerfully unionised and over-regulated labour dispensation, it is almost impossible to dislodge them. While it can be done, the process is so complex and fraught with pitfalls and formalities that it would take years, and huge cost in each individual case.

In some schools, few teachers would meet required performance standards, making it impossible for the principal to “manage them out” of the system while keeping the staff “on side” and continuing to run a functional school. In other schools, the principal is part of the problem. The fact that the human resources staff of most education departments largely comprise union members is also not conducive to instilling a culture of accountability.

Recommendations for filling teaching posts, made by governing bodies, all too often have a very tenuous (if any) link with the candidates’ ability to teach. Far too many governing bodies use the appointment process for ulterior purposes, to return favours, or to receive kick-backs, as the “jobs for cash” report revealed, although (thankfully) this has not emerged as a significant problem in the Western Cape to date.

If the evidence suggests that many governing bodies battle to nominate competent candidates for posts, there is nothing to suggest that departmental officials in all provinces would necessarily do a better job.

What’s more, as our allocations from the fiscus shrink, the ability of parents to pay school fees declines. A growing number are unemployed, single parents, reflecting a reality in which at least 50% of children grow up without their fathers, and many are born to teenage mothers. However hard the state may try to compensate, these circumstances are an almost certain predictor of life-time poverty and inequality.

Against this, it is nothing short of miraculous that we have had such sustained improvements in the quality of education provided in our poorest schools. For example, just last week we saw two schools serving seriously disadvantaged communities emerging among the top performers in our annual systemic tests in literacy and numeracy.

But let me be clear: if current demographic trends continue, and the policy framework remains unchanged, the improvements we have achieved over the past decade will be unsustainable.

We have a First World human rights regime – defined and guaranteed by the most “progressive” Constitution on Earth – thwarted by government policies that encourage deteriorating state capacity, economic decline, a shrinking tax base, fewer jobs, an expanding number of grant recipients, a lack of accountability, and a labour dispensation that protects the lazy, incapable and corrupt; not to mention porous borders, a massive skills deficit and rampant corruption.

It is a toxic mix.

Within this context, human rights activists do their best to promote the Constitution’s undertakings, while lawyers – often with mixed motives – seek out every potential case they can measure against our constitutional promise. The opportunities for class action suits hold the potential for particularly rich pickings.

So what is to be done?

Something has to give, and I do not believe it should be the human rights aspirations of our Constitution. They should remain our lodestar.

But if we wish to move closer towards attaining them, there will have to far-reaching policy and cultural changes in our society.

The following basics, at least, are essential:

Top of the priority list is the need to build a professional, independent and capable state. This requires at least two things. A firm policy on meritocratic appointments in every position, and a far easier method of dismissing people who cannot or will not do the job they are paid for.

I can already hear howls of outrage at this, to which I can only say: this has nothing to do with race. It is an insult to the many excellent black professionals to imply that meritocratic appointments will automatically imply preference for minorities. To suggest that this would be the case is racist in itself. What has to stop is cadre deployment and political appointments, for which “BEE” is often just a convenient fig-leaf. We need a competent, independent public service, not beholden to anything or anyone except the Constitution and the law.

There must be proper probation periods, and if the requirements of the job are not met, termination of employment must be swift and simple. And even when an incumbent has tenure, it needs to be far easier to terminate employment. Specialised professional units are required to monitor and implement performance-based systems, especially where the delivery of constitutional obligations is concerned.

Another priority is the allocation of the available funds to the right place to meet people’s basic rights. This means that financial allocations must follow individuals to the places where they seek public services, instead of fiscal transfers going to the province where they were counted in the last census. Otherwise it is impossible for provinces facing large in-migration – such as Gauteng and the Western Cape – to stretch their budgets to meet the growing demand while maintaining the quality of service, let alone moving towards meeting their constitutional obligations.

Public service unions must be absolutely independent of political parties, so that no sphere of government can be held to ransom by officials protecting the interests of their members rather than the rights of the public.

Public policy must also encourage a culture of personal, individual responsibility. The state cannot continue to compensate for the consequences of growing numbers of fathers (and some mothers) simply walking away from the responsibility of supporting their children. Payment of parental maintenance should be mandatory, as far as it is possible for the state to impose this.

Other social and economic privileges – such as a personal credit rating – should depend on one’s record in this regard. And there are a range of incentives that can be used to encourage young women to finish their education before becoming mothers, and appreciating the enormous consequences of this decision. Delayed first pregnancies and educated mothers may also help in finding more effective ways to ensure they do not drink alcohol or take dangerous drugs during pregnancy.

These are the very basics we require to make gradual progress towards fulfilling the promise of our First World, rights-based Constitution. Otherwise, we will be lucky if we are able to just keep treading water. It is more likely that we will steadily regress, with tragedies such as Life Esidimeni becoming routine occurrences, in countless, less immediately visible (but no less catastrophic) ways. DM

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