Life Esidimeni: One year after the arbitration

Retired Deputy Chief Justice Dikgang Moseneke Pic: Joyrene Kramer

One year ago, Shaniece Machpelah, whose mother Virgina had tragically passed away in the Life Esidimeni tragedy died of a broken heart. She was only 21. Ironically, on the same day the Life Esidimeni arbitration started, the first step towards the heartbroken families’ attempts to find answers and hopefully some closure. The powerful outcome of the arbitration and the progressive steps taken this year are as much a tribute to the mental health care users, Shaniece and the families’ tireless work. The state also deserves acknowledgement for all the work they have done. However, it would be remiss not to point out that much more still needs to be done.

In a culture that thrives on amnesia, moving from one tragedy to the next based on the latest media frenzy, forgetting past tragedies has become the norm. For most, they are remembered only briefly, brought up on special occasions such as anniversaries. Examples abound, with Marikana being a recent example. That said, however, it is worth reflecting when these days come around, remembering that today marks a year since the Life Esidimeni arbitration started, led with such dignity by retired Deputy Chief Justice Dikgang Moseneke. The arbitration showed the tragic and devastating consequences that come with shockingly and murderously bad leadership making unethical decisions that led to people dying. It is “leadership” that saw people being lined up and loaded onto open trucks like cattle. It is leadership that saw family members searching for their loved ones only to find their dead composing bodies in makeshift mortuaries. It is leadership that saw an elderly father searching for his son for months only to find him traumatized and starving. At least 144 people, also referred to as mental health care users (MCHU) perished, a further 1 418 surviving MCHUs were inimically affected and the hearts of countless families and friends were broken in the process. Under the chairing of Justice Moseneke, the arbitration saw 60 witnesses provide the arbitration with testimony. Included in those were twelve senior government officials, including the Gauteng Premier David Makhura, the Minister of Health Dr Aaron Motsoaledi, the Member of the Executive Council (MEC) for Finance Barbara Creecy, the Gauteng MEC for Health Gwen Ramokgopa and former MEC for Health Qedani Mahlangu.

The arbitration hearings were traumatic, but also illuminating in several ways. It illustrated the complex ways in which actors working for the state operate. It showed the heavy top-down approach employed in the Gauteng Department of Health (GDoH) through testimony on Mahlangu’s leadership in particular and the fear associated with it. This was juxtaposed by the testimony of Levy Mosenogi’s, the head of the Life Esidimeni Marathon Project, which showed remorse, while Barbara Creecy and Aaron Motsoaledi’s testimony showed how a caring and competent state ought to look.

What is clear about the Life Esidimeni arbitration is that it would not have taken place without the active participation of state employees who acknowledged the culpability of some of their colleagues. The state has also carried out Justice Moseneke’s Award timeously, paying settlements, drafting a recovery plan and providing families with access to trained mental health care professionals, among other things. They should be commended for that. The wheels of justice have certainly moved faster than in other needless and senseless tragedies, such as Marikana and the Aquarius K5 mine in Sondela. However, sadly, criminal prosecutions have not yet taken place.

Over 11 months since Dorothy Franks admitted during her testimony to receiving R1 500 in monthly SASSA grant payments for 29 patients assigned to her, which  amounted to R43, 500 each month, she continues to live her life as a free woman, unrestrained by criminal procedures against her. Franks also admitted that she continued to receive funds for former patients who had long since perished at Anchor House, the NGO she ran in Pretoria. Furthermore, Franks also admitted during her testimony to receiving R600 000 from the state after her NGO was forced to close, a princely sum she could have refused. History will judge her harshly for her role.

A year after the Life Esidimeni arbitration started, Mahlangu, one of the three people who Health Ombud Prof Makgoba argued had “their fingerprints peppered throughout the project” still has not been criminally prosecuted. To add salt to the festering wound, she stood and was re-elected into the Provincial Executive Council of the Gauteng African National Congress, to the chagrin of families of mental health care users. While she has appeared before the party’s integrity commission (we still await their ruling), much more needs to be done. This is not what justice looks like and does not measure up to what the Makhura and many others have tried to bring to the fore, namely an ethical political party that takes the concerns of its people seriously.

While the National Prosecuting Authority (NPA) is likely working around the clock on bringing this important national matter to a successful resolution, the problem is that in this beautiful land, with its complex dynamics, retraumatisation is a real possibility. Stories abound about those who suffered at the hands of powerful people, seeing them while out in the streets of one town or another. With other central figures such as Dr Makgabo Manamela and Dr Barney Selebano also having managed to evade the long arm of the law so far, the prospect of families bumping into them increases with each passing day.

A speedy resolution to complaints brought to the Health Professions Council and the South African Nursing Council would also go a long way in providing accountability and a greater sense of justice for families.

While families have had some form of justice through Justice Moseneke’s Award, a powerful document which places constitutional damages at its core, and through the work of a number of state officials, a lot more needs to be done. To date the reasons for the Marathon Project still have not yet been unearthed. Getting to the root cause of it would help families continue to heal from this tragedy. So would more accountability through fast tracking prosecutions and strengthening of oversight mechanisms such as the mental health review board.