Moseneke judgment in 30 days as Esidimeni hearing concludes

Retired deputy chief justice Dikgang Moseneke during the Life Esidimeni Arbitration.Picture: COLLEN MASHABA
Retired deputy chief justice Dikgang Moseneke during the Life Esidimeni Arbitration.Picture: COLLEN MASHABA

Today was the final day of the emotional arbitration hearings into the deaths of 144 Life Esidimeni mental health patients.

In 30 days, former deputy chief justice Dikgang Moseneke will deliver his final judgment, based on the arguments and testimonies that were presented during the arbitration process, which began last year. The testimonies were given by family members of the victims, non-governmental organisations, departmental officials and even the health minister himself, Dr Aaron Motsoaledi.

During his testimony in January, Motsoaledi said that, following the report by health ombudsman Professor Malegapuru Makgoba into the Esidimeni tragedy, he was not embarrassed as he was asked by the media, but rather “horrified” and that he felt “personally betrayed” as the health minister.

“When I read the ombudsman’s report, on how people were bundled in vans, and tied with sheets, and how they were chosen, as you described it, like cattle at an auction … I mean I couldn’t imagine in our new democracy and in a department where we put up an act and put as one of the objectives, human rights … human rights can’t be breached in this manner, in a way that is reminiscent of [the] apartheid era and not a democracy, is very painful,” he said, as broke down and wiped tears away.

The emotions continued today when Advocate Adila Hassim, who on behalf of civil society organisation Section27 has represented some of the families throughout the hearings, gave a brief description of those victims who lost their lives.

Members of the audience were visibly shaken, as they were brought to tears, reminded about their loved ones, and the horror stories of what many of the patients endured after being transferred to various ill-resourced and unlicensed non-governmental organisations across the province following the termination of the Life Esidimeni contract with the Gauteng department of health.

“Virginia Macphelah was a beloved mother and sister. When Virginia had to be admitted to Life Esidimeni, her daughter, Shanice, lived with her sister Christine. Her death caused heartbreak to Shanice, who passed away in October 2017, just at the beginning of the arbitration,” Hassim said, as she described each victim and what the families had endured.

Read: Rather late than never – sister of Esidimeni victim on Hawks’ probe

Yesterday, Hassim had announced that Section27 and the state had reached an agreement that the families would each be compensated with an amount of R200 000. This amount would be broken down into R180 000 for the emotional shock and psychological trauma that the families had to endure as a result of losing their loved ones, and R20 000 to cover funeral costs.

Hassim said that the families had also requested an additional figure of R1.5 million for constitutional damage.

“The figure is not intended to represent the value of life. It takes into account the series of circumstances and the breach of rights, including the ongoing disregard of attempts by families to save this situation‚” she said.

The State, represented by Advocate Tebogo Hutamo, confirmed that the amount of R200 000 was agreed on, but that the state disputed the figure of R1.5 million.

“I confirm‚ Justice‚ that an agreement has been reached to pay R200 000 to each family who lost their loved ones. This is only for the common law claim,” Hutamo said.

In a shocking submission made by Hutamo today, Hutamo said that the evidence which was presented during the arbitration relating to how patients were tortured and starved to death was irrelevant. He added that the compensation amount for the families should only be determined based on the emotional stress and trauma that the families have experienced, and not on the human rights violations which the victims were subjected to.

“But that trauma can only occur from the horrible deeds‚ isn’t it? Are you saying the suffering of the deceased is irrelevant? That is an incredible proposition. It startles me,” Moseneke said.

“The wrong should be in relation to the family members who have suffered trauma in relation to the implementation of the marathon project,” Hutamo responded.

At the end of the day’s proceedings, Moseneke thanked all the families, legal representatives, media and the general public for their involvement in the four-month long arbitration process, and said that the hard work of compiling a final judgment on the hearings was about to begin for him.

Avantika Seeth
Multimedia journalist
City Press
p:+27 11 713 9001  e:
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