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The operative phrase I gleaned from retired deputy chief justice Dikgang Moseneke's judgment in the arbitration of the sad, uncalled for Life Esidimeni tragedy, and which I most welcome, is that "the police must do their work".
Moseneke was obviously not going to order the police to do their work.
Put differently, would we be where we are, in respect of resolving the Life Esidimeni tragedy today, had the criminal justice system kicked in at the time when this dastardly crime against the most vulnerable citizens of our country, was committed?
The simplest answer is that we wouldn't have been because the perpetrators of these heinous crimes against humanity would have been on trial, charged with culpable homicide now and/or crimen iniuria.
The country has gone through the arduous process of, first a commission of inquiry chaired by Professor Malegapuru Makgoba, followed by the arbitration chaired by Moseneke. Of discomfort to me is that having gone through these processes, we nonetheless remain in the dark as to who is delictually and criminally liable for these horrible misdeeds.
The government purse, especially that of the Gauteng Department of Health, is choking with delictual litigation claims involving the negligent behaviour of their professional employees. This department can least afford to commit, unprovoked or with no basis at all, crimes of this nature against vulnerable patients in democratic South Africa.
Setting up the commission of inquiry and arbitration came at a huge cost to government. Moseneke, under the circumstances, delivered a fair and just award to the aggrieved families of those who lost their kith and kin. They loved them. I couldn't absorb the shock when this tragedy unfolded.
The R1.2 million award to the affected families will partially heal their deep wounds. Will they get complete closure when the citizens of this country – except those who ordered the negligent removal of patients from a professional healthcare facility to some unregistered homes with no basic understanding of how to professionally care for psychiatric patients – feel that none of the perpetrators appeared before the commission and arbitration hearings to tell the whole truth?
They appeared to protect their own skins and no further. It is common knowledge that commissions of inquiry of whatever nature, unlike our courts, are constrained in many ways – one of which is that they are simply not courts of law. They are also too costly to float.
A criminal offense was committed by whoever decreed that the patients, who have constitutional rights to quality healthcare services, be violated. Not only were these patients' right to healthcare services brutally violated, their right to human dignity and right to life were also completely disregarded.
Any conduct which is inconsistent with the spirit and purport of our Constitution is automatically unlawful. I hold that the Gauteng Department of Health's officials conducted themselves extremely inconsistent with the dictates of our Constitution in the Life Esidimeni tragedy.
Their actions were criminal ab initio up until the last psychiatric patient counted sadly passed away. The Department of Health's officials, in my view, unlawfully, intentionally and seriously violated the dignity of vulnerable psychiatric patients. A crime of crimen iniuria was committed the very first day that patients were removed from Life Esidimeni, some of them without their chronic medications and others without their files, to dodgy homes where they perished.
The question I ask to the police is, why their inaction when a crime of this nature unfolded under their watch of which the facts are abundantly clear to us ordinary citizens?
- Mahlodi Muofhe is an advocate based in Johannesburg specialising in human rights law. He is an ardent proponent of fundamental rights and equality before the law for all people.
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