Buthelezi EMS netted more than R15-million from two suspect back-dated price increases from the Free State Department of Health, apparently without much scrutiny. Documents that Spotlight has had sight of reveal how the increases were signed off during a five-day period, when it seems the Free State Department of Health was temporarily taken out of administration by decree of then Premier Ace Magashule. The Democratic Alliance told Spotlight that they will ask the Public Protector to investigate.
Five days in February
According to a response by the Free State Department of Health to questions posed by Spotlight, the department was under administration by the provincial treasury for almost four years from 17 March 2014 to 15 February 2018. Among others, this means that the accounting officer, the person who ultimately signs off on all health spending, was not the head of the provincial department of health, but the head of the provincial treasury.
Yet, contrary to what the department told Spotlight, this was not the case for
five days in February 2017. In a signed memorandum dated 3 February 2017 seen by Spotlight, then Free State Premier Ace Magashule effectively takes the provincial department of health out of administration for five days by appointing the head of the department of health, Dr David Motau, as acting accounting officer from 6 February 2017 to 10 February 2017. In this five -day window, Motau signs off on what procurement experts describe as two highly unusual back-dated 8.5% price increases for Buthelezi EMS.
When asked about the five days that the Free State Department of Health was taken out of administration, Mariette Pittaway, Democratic Alliance (DA) member of the Free State legislature and spokesperson on Health, told Spotlight: “The DA is fully aware of this. We are in possession of a copy of this appointment letter and are compiling a case docket to submit to the office of the public protector for further investigation.”
Red lights over price increases
The first price increase, signed off by Motau on 10 February 2017 grants Buthelezi EMS an 8.5% price increase for their inter-facility transfer service. Critically, the price-increase is back-dated to April 2016.
Where government contracts allow for back-dating of increases, they typically do not allow for backdating beyond the date at which the increase was applied for. It could be that this specific contract has more flexible conditions attached to it, but in that case the question would arise as to why Buthelezi EMS was granted such an unusually favourable contract.
Free State Department of Health spokesperson Mondli Mvambi has previously said that the Department of Health paid Buthelezi EMS a total of R204 million in the 2016/2017 financial year. It is not clear whether or not this includes the 8.5% increase. Either way, the increase would amount to a back-payment of between R15-million and R17-million. (Spotlight previously reported on how the Free State Department of Health overspent its emergency medical services budget by around 100% during the period in question. It is this budget line that paid for the increases.)
The second price increase relates to a contract between the Free State Department of Health and Buthelezi HEMS, a joint venture between Buthelezi EMS and HALO Aviation. Internal departmental documents show that on 10 February 2017 this price increase is both recommended by Motau in his capacity as Head of the Provincial Department of Health and approved by Motau in his temporary capacity as accounting officer.
This increase is also backdated, but to October 2016. According to internal departmental documents that Spotlight has had sight of, this price increase was only applied for on 27 January 2017.
Also raising red flags, is a letter dated 24 January 2017 in which the departmental bid adjudication committee expresses its support for Buthelezi HEMS’s requested increase. As noted above, according to the department’s own documents this increase was only applied for by the service provider Buthelezi HEMS, three days later on the 27th.
Motivation for increases
While the back-dating of increases raises eyebrows, normal price increases are not straight-forward either. Where government contracts allow for increases, they either happen simply as a matter of course since it is priced into the original contract, or they do not happen as a matter of course, in which case the increase requires a detailed motivation with supporting evidence (as in this case).
Spotlight asked the Free State Department of Health for the full documentary justification for the rate increases given to Buthelezi EMS. The department’s response, signed off by Motau, was simply: “Rate increases are based on the annual Price adjustments and price schedules”. A request for clarification of this answer was not responded to.
Internal departmental documents seen by Spotlight show departmental officials making the case for the increase granted to Buthelezi HEMS (the joint venture) only in broad terms. The key motivation also signed by Chief Director Supply Chain and Asset Management Nelisiwe Phitsane, a senior procurement officer in the department and wife of Tafetso Bernard Phitsane – a senior ANC member in the province and known ally of Magashule – motivates the increase by referring in relatively broad terms to import duties, currency fluctuations, inflation and increases in fuel prices.
The internal departmental documents seen by Spotlight make no reference to any more detailed justification for the increase – as is typically required for such increases in government contracts. There is, for example, no records of specific imported items of which the cost may have increased and how those increases impacted the cost of delivering an aeromedical service to the province. Spotlight asked the Free State Department of Health to share any documentation they may have in support of the increase granted to Buthelezi HEMS (the joint venture). No such documentation was shared by the given deadline.
It emerged last week that Minister of Health Dr Aaron Motsoaledi had asked National Treasury to investigate the Free State’s ground ambulance contract with Buthelezi EMS. In previous articles in the Health4Sale series Spotlight described various complaints about the service provided by the company and various irregularities around the Free State tender. Spotlight also previously published a two-part investigation into similar concerns around Buthelezi EMS in the North West.
Spotlight contacted African National Congress Spokesperson Pule Mabe as well as Ace Magashule’s personal assistant in an unsuccessful attempt to get comment from Magashule. Messages were also left on two different numbers we have for Magashule.
Note: While Spotlight is published by SECTION27 and the Treatment Action Campaign, its editors have full editorial independence – independence that the editors guard jealously. Spotlight is a member of the South African Press Council.
Doctors and nurses in the Free State and North West have accused Buthelezi EMS, the private company contracted to run provincial ambulance services, of operating like a minibus taxi and “drop and go” service. They accuse the company of providing limited medical support and expertise during transport, leaving the desperately sick and injured, including babies, unassisted and putting people’s lives at risk.
Buthelezi EMS has landed lucrative state tenders worth hundreds of millions to run hospital and clinic transfer services in the Free State and North West. Last week Spotlight reported that Minister of Health Dr Aaron Motsoaledi had asked Treasury to investigate the procurement of Buthelezi EMS’s services in the two provinces. This is in addition to a Hawks investigation and a forensic investigation instituted by North West Premier Supra Mahumapelo.
Nurses and doctors have revealed a litany of failures, some life threatening, with common complaints extreme waiting times of up to six hours (even when patients, often babies, are critical), overcrowded ambulances, poor staff attitudes, poorly equipped staff on the ambulances and in the call centres, lack of equipment, extremely poor medical skills, no medical care while patients are in transit and a lack of compassion for patients.
A visit by a Spotlight photographer to the company’s Bloemfontein, Klerksdorp and Potchefstroom ambulance bases, also showed that the services are run from tiny, rented houses with the bare minimum and in some instances dirty, messy yards, not resembling what would be expected of a professional ambulance base (see accompanying photographs).
All the doctors and nurses who spoke to Spotlight asked to remain anonymous for fear of losing their government jobs. Names of specific hospitals have also been omitted as it will make it easy to trace the sources.
Patients squashed into ambulances
A senior doctor based at a Free State hospital alleges that Buthelezi EMS often transports multiple patients in a single ambulance. Sometimes as many as five patients will be transported in one ambulance, but Buthelezi will allegedly then bill with five different patient reference numbers as if five different ambulances were used and five different trips undertaken. This pattern was confirmed by all healthcare workers Spotlight spoke to in both provinces.
One Free State doctor said that it had become the norm for Buthelezi ambulances to arrive at their hospital with several patients squashed inside. “But we are not allowed to complain, if we do it simply goes nowhere or we are harassed by Buthelezi staff and our patients suffer,” the doctor said.
Another doctor said even if there were sick patients who needed to be transferred to a hospital Buthelezi ambulances would not transport the patient, but wait for the vehicle to first fill up.
The overloading of ambulances could also at times place patients at risk and infringe on the dignity of patients. Spotlight was for example told of an instance where a woman with birth complications had to share the back of the ambulance with a male patient not known to her. In another instance a patient with a broken leg had to ride in the front of the ambulance because the back was full. At other times, patients who could safely be transported in cars are transported at great cost in ambulances.
Lack of skills and equipment
A North West trauma nurse said she had a case where two severely ill women arrived in the same ambulance. During the handover Buthelezi staff told the nurse that the women both had bleeding complications from their pregnancies. The nurse conducted a pregnancy test on one of the patients after she suspected something else was wrong. The woman was not pregnant and the problem was completely unrelated to what she was told.
The nurse said lack of equipment was a major problem. She said patients almost never arrived with oxygen, drips or connected to any monitoring equipment. “They mostly don’t have equipment, not IV drips, not drip bags, not saturation monitors (used to measure if patients need oxygen), nothing.”
She said the problem was that Buthelezi staff exercised no medical care or procedures on patients while in transit. “They’re a taxi service and they are always impatient to drop and go,” she said.
Long waiting times
The nurse said a clinic sister recently had to wait four hours for an ambulance to collect a severely ill new-born baby.
“They run a taxi service, not an EMS service,” said a Free State doctor.
All healthcare workers Spotlight spoke to said that they waited hours for Buthelezi to arrive.
One North West nurse in a large town said they waited on average three to four hours for a Buthelezi ambulance to arrive, even though the hospital is not far away. “When we contact the call centre, we are not told how long they will take, we are simply made to wait. The staff also mostly have terrible attitudes when they arrive or when we follow-up with the call centre to find out where they are,” said the nurse.
The service level agreement (SLA) between the North West Department of Health and Buthelezi EMS explicitly states that “The Service Provider must ensure that its call centre gives the NWDoH a reference number and estimated time of arrival of the ambulance for each call.”
The SLA also sets out a schedule of required response times for different levels of emergency. The longest response time allowed for (for the least serious calls) is 60 minutes (measured from when the call centre receives the call). The SLA states that response times in excess of those on the schedule will result in financial penalties against the service provider. As with most aspects of this contract, it appears these penalties has not been enforced.
A North West nurse said Buthelezi’s ambulance staff are not interested in the handover process. “They seem to consider themselves to be a taxi service who simply has to transport the patient. I have very rarely had a Buthelezi staff member show any interest in the patient, put up an IV drip, discuss the patient or even take their blood pressure, they don’t even listen when we do the handover,” the nurse said. She said nobody dared ask for proof of qualifications. This is necessary as certain patients require certain levels of care for example Advance Life Support.
Call centre problems
One nurse said they recently had a new-born baby who was in a critical
condition and in respiratory distress. Despite several desperate calls, an ambulance only arrived after three hours. “When we contact the call centre, they ask us the age of the patient, the gender and what is wrong. I more often than not have to explain to them what the problem is and even then they will tell me they do not understand,” the nurse said.
A doctor said call centre staff often did not understand standard emergency medical terms. When he calls for an ambulance he would as an example not refer to a cranial injury, which is a widely accepted and understood medical term, especially in emergency medicine. “The call centre does not understand that, I have to just say brain injury. I also cannot say Caesarean section, I have to say – we did an operation for a baby – then the call centre agent kind of understands, sometimes,” the doctor said. A nurse had the same experience, saying that even after explaining medical conditions to call centre staff they still failed to understand.
Is the motivation money?
The Free State doctor also said when they called for an ambulance from the provincial government or other private service providers such as ER24 of Netcare 911, it would take 15 minutes to get a reference number as the handover was meticulous, however via Buthelezi the reference number is generated within minutes, adding that the motivation was not patient well-being but money. “We know that 2km trips could be charged at R3 000,” he said, adding that Buthelezi did not have enough ambulances or a presence (with Advanced Life Support paramedics) in sub-districts as required.
The allegation that Buthelezi EMS incorrectly charges thousands of Rands for short trips is confirmed by invoices submitted to the North West Department of Health that Spotlight have had sight of (and previously reported on here).
Sources inside the North West Department of Health confirmed that Buthelezi EMS only has sufficient advanced life support staff based in five of the 19 sub-districts where they are supposed to have such staff according to the service level agreement with the province. Apart from this, resulting in advanced life support often being severely delayed, it is also alleged that Buthelezi charges the province for the extra distance advanced life support vehicles and personnel must travel to sub-districts where there is no advanced life support in place. This state of affairs was confirmed by Free State doctors as well.
Spotlight sent a photographer to Buthelezi’s Bloemfontein ambulance base. The base does not have any external signage. The outside of the suburban house in Bloemfontein was in a shocking state with rubbish, mud and a yard full of ambulances, some seemingly no longer in running order. Aerial photographs show a backyard littered with rubbish and no sign of any waste disposal.
Spotlight asked the Free State Department of Health whether they visited and inspected Buthelezi’s ambulance bases. Head of Department David Motau responded “Sites visits was not a requirement as per the tender document”.
The Potchefstroom “base” is a house which is mostly empty inside, with only a
few bare beds used by staff to sleep in. The backyard of the house has rubbish dumped at the back door. None of ambulance bases appear to have dedicated medical waste areas that are marked biohazardous. Access to these waste areas must be controlled. Unsecured oxygen cylinders are seen lying in the corner of a room. Several horrified paramedics confirmed that oxygen cylinders must be safely locked up and secured. There has to be a sign which cautions that it is pressurized oxygen. The front porch has a derelict bed with no indication that this is a Buthelezi ambulance base. The entrance hall to the house has what appears to be a radio transmitter.
At the Klerksdorp “base” the only sign that it is a depot is two branded ambulances and a car parked in the road.
Mariette Pittaway Democratic Alliance member of the Free State legislature and spokesperson on Health, questioned whether the health department conducted regular checks on Buthelezi operations to ensure compliance with the provision under the National Health Act (No 61 of 2003). Some of these provisions deal with whether an operator is licensed and whether staff are being supervised by a Medical Services Manager. In terms of the base, the Act prescribes that the operator have sluice facilities for cleaning contaminated equipment and linen, have access to washing facilities, including medical-waste traps, have all the relevant equipment listed in the regulations. The Potchefstroom base had none of this. The Act also requires for there to be a log stating how many checks were conducted at the base and what were the findings of each.
Responses from Health Departments and Thapelo Buthelezi
Last week Minister Motsoaledi told Spotlight the following in relation to Buthelezi EMS and the Gupta-linked Mediosa: “On my side as health there is
nothing to investigate in terms of whether it is serving the health needs etc. It is very clear, as clear as daylight, that we do not need this type of service.”
Asked about the complaints from healthcare workers Motau said: “The department is aware of only one formal complaint from Botshabelo and the matter was resolved. The department is not aware of ambulance (sic) being poorly equipped and overloaded.”
The North West health department has declined to comment to Spotlight on any Buthelezi-related matters, saying the matter is being investigated by the Hawks and the Premier’s office.
In addition to a previous round of questions, Spotlight also sent a list of the above allegations and complaints to Thapelo Buthelezi via email. This was his Whatsapp response:
“There isn’t anything I can assist you with. More especially after you have lied to South Africans that you have published everything I said. I spoke about other provinces utilizing aero medical service without any formal contracts and you did not want to say anything about the matter. You are most probably avoiding to talk about that because it will tell South Africa the truth behind all the allegations. It is clear that you are after Buthelezi EMS, hence you can’t talk about other provinces’ aero medical contracts. You may carry on and publish whatever and continue to protect your buddies. This matter is being dealt with from a different platform. I’m also aware that one of your informers, (Spotlight omitted this name) is busy talking to different provinces, recruiting managers to support him in taking Buthelezi EMS down and give you a falsified information. I wish you could report the real events and stop talking to the competitors. It is a common knowledge that the competitors will always give a negative info. However, I still maintain what I said earlier, we are working on publishing the truth and not nonsense you have been telling South Africa. Good luck!!!!!!”
Note: While Spotlight is published by SECTION27 and the Treatment Action Campaign, its editors have full editorial independence – independence that the editors guard jealously. Spotlight is a member of the South African Press Council.
All over the Free State things are buzzing with public works projects, but also with electioneering. It seems there are as many road works and infrastructure upgrades as there are election posters on walls and lampposts.
If election years are good for one thing, it’s that they make politicians scramble to look like they’re doing things.
It’s had a positive outcome for the Batho Clinic on the outskirts of Bloemfontein.
Back in 2014, NSP Review (now Spotlight) visited the clinic that had, for months, been in total disrepair. It had been vandalised and electricity cables had been stolen. Ceilings were collapsing, fridges were being used for storage and pharmaceutical supplies were left stacked in boxes, because no one could sort through the medicines in the dark. Nurses were using their cellphone torches to try to see patient files.
But this autumn Batho Clinic has had more than just a lick of paint – it’s had some serious upliftment and refurbishment. Extensive repair work has been done: new security upgrades are in place, there’s a patient-file storage unit and room, and there are improved seating and waiting areas.
Not far from Batho Clinic at Pelonomi Hospital, sections of the hospital have also undergone a contemporary-style revamp and construction is ongoing. Where work has been completed there are new decals, art work, water fountains for patients, and waiting areas that look more modern international airport than public hospital.
Upgrades that can make a hospital or clinic experience more comfortable for patients, and help boost staff morale, are sorely needed.
By the end of May though, neither Batho Clinic nor Pelonomi Hospital had opened their doors or become fully operational. It makes the challenge of a properly integrated approach to managing hospitals and clinics an ongoing hurdle.
But it’s only when infrastructure upgrades of hospitals are matched with the right staff complement, proper equipment, good management and the appropriate maintenance and repair schedules, that facilities are efficient, sustainable and truly useful to the people they are meant to serve.
Good management also means opening on time. In Batho Clinic’s case, delays in opening will continue to put immense pressure on the nearby Mmabana Clinic. The overflow of patients there in the last two years has meant that people fill up seats in waiting areas quickly. Patients cram up against walls and balance on broken seats, waiting their turn in a facility in dire need of its own maintenance and upgrading.
There is only one blood pressure machine for the whole clinic and medical equipment that no longer works is simply pushed into a corner, never taken away for servicing or repairs. Paint is peeling and large cracks run through the walls.
Nurses – who don’t want to be named – say it’s no place to work and there’s little chance of feeling motivated coming to work each day. They think maybe they’ll all be moved to Batho Clinic when it eventually opens.
Better still, maybe Mmabana Clinic could also get a revamp, they say. It’s what would benefit them and their patients most.
For five days after 18-year-old Kekeletso Kikilame had given birth, she could not wash herself or her newborn, as there was no hot water at the Dr JS Moroka Hospital in the Free State.
Worse though, says the teenager, is that the nurses had no empathy for her or the seven other women who were also giving birth in the hospital at the end of March.
“They kept telling us to get up and to go wash in the cold water. They didn’t even offer to warm up water for us,” says Kikilame, speaking through a translator at her home in the Thaba’Nchu.
She adds that the nurses ignored their pleas to close some windows when it was cold or to turn off lights when they wanted to sleep.
“You get cross, but you just keep quiet. Even today I’m angry with those nurses for how they treated me. Their attitude towards people is not right,” she says.
It was only five days after the birth, when her sister brought some flasks of hot water, that she was able to wash herself and her second-born, a boy she’s named Boikanyo.
Blood had clotted around her stitches making them painful to clean. She remembers being constantly anxious days after giving birth that she would develop an infection or that the health of her child would be compromised.
Sitting on her stoep with her family and neighbours she cradles her one-month old baby. She says she wishes she could sue the clinic. They should not be allowed to operate the way they do without consequences, she says.
At one time Dr JS Moroka Hospital was considered a top facility, locals say. It was especially well known as an excellent TB treatment facility, but that was many years ago. Today people call it a “mortuary” – you’re lucky if you come out alive, they say.
Kikilame she never wants to go back there if she can help it. She says she’ll tell her friends to stay away. Nobody should have to be subjected to the nurses at that hospital, she says.
While mental health remains poorly recognised and resourced across the health system, rural communities are often the hardest hit by the lack of services. In 2014, concerned stakeholders united to launch the Rural Mental Health Campaign, based on the belief that there is “no health without mental health” and that every person has the constitutional right to have access to the best possible mental health care, regardless of where they live.
On World Mental Health Day, the campaign released a report that highlights the state of rural mental health care in South Africa and the shocking inequalities that still exist within our health system. The report is based on the real life testimonies of mental health care users living in rural areas in the Eastern Cape, Kwa-Zulu Natal, Limpopo and North West, as well as contributions from experts in the field on aspects such as state budgeting for mental health, human resources, access to medication and the need for rehabilitation.
Rural areas in South Africa account for 40-45% of the population but still remain the most underserved and marginalised. Human resources for health are overwhelmingly concentrated in the private sector, and of the minority who work for government, only a fraction choose to work in rural areas.
Ongeziwe from the Eastern Cape expresses his frustration at the lack of psychiatrists in his area: “I need to see the psychiatrist to discuss my case as I would like to know if I am better now. I am just drinking medication again and again forever. I would like to know the name of my illness and what caused it.”
According to Daygan Eager, from the Rural Health Advocacy Project, provinces spend only a tiny proportion of their health budgets on mental health, despite the fact that neuropsychiatric disorders now rank third in their contribution to the burden of disease in South Africa. In Gauteng, North West, Mpumalanga and Northern Cape, this amount is a mere 5% of the total provincial health budget.
Hendry, a mental healthcare user from Tzaneen, says: “The clinic is always full so I do not receive any counselling from the clinic and I also wait for a long time to get medication.”
Patrick from Limpopo adds: “Sometimes the medication is not available and I am referred to the hospital that is far and even there the medication is not available. Two months I did not receive Haloperidol as it was not available.” The Stop Stock Outs Campaign found that psychiatric medications accounted for 10% of reported medication stock outs between January and July 2015.
For many rural people with mental health conditions, the cost and logistics of accessing distant mental health care services are prohibitive. In a rural village in the Eastern Cape, where ambulances are seldom seen, a private vehicle can cost up to R600 (one way) to transport an ill person to the nearest hospital. As a result, many remain on suboptimal treatment regimes, with sustained ill health and often serious side-effects from the medication over time. The costs of accessing regular treatment also plunge households even deeper into poverty, affecting the health of the entire family.
KEY FINDINGS: Mental health services in rural areas are still largely inadequate, due to:
Inaccessible services, mostly sited in urban tertiary centres;
Grossly inadequate budget allocations by provinces;
Frequent drug stock-outs, leading to high relapse rates;
Lack of human resources for mental health
Lack of psychosocial rehabilitation, resulting in poor recovery and “revolving door” care
Stigma and discrimination
But medication is only one aspect of mental health care. Without community-based support structures and skilled psychosocial rehabilitation, people with mental illness may remain excluded from society, and fail to fulfil their potential as workers, breadwinners, parents, neighbours, and members of society. This is a cost our country cannot afford, and yet planning and budgeting for rehabilitation continues almost non-existent – despite its central place in the Mental Health Strategic Framework.
Mental health is not a separate issue from physical health, or indeed from some of the National Department of Health’s priority conditions.
Anele Yawa, from the Treatment Action Campaign, points out the close links between HIV/AIDS and mental health: “Learning that one is HIV positive can be very traumatic. Stigma is still rife in many of our communities and many of us struggle with both external and internal stigma. Too often we suffer our mental health problems in silence and in shame.” He also suggests that mental health problems may be a significant factor in the high rate of loss to follow-up in HAART programs, currently estimated at 40% at three years.
Human resources for health:
84% of the population accesses public sector health services which is served by 30% of the country’s doctors. The private sector only accounts for 16% of the population but is served by 70% of the county’s doctors.
In South Africa only 12% of doctors and 19% of nurses work in rural areas.
There are 2.6 occupational therapists and psychologists in the public sector for every 100 000 people
And only 1.2 psychiatrists in the public sector for every 100 000 people
There are seven times more psychologists and three times more occupational therapists in the private sector
Thembelihle, who is HIV positive and a mental health care user shares her challenges in accessing mental health care services in a rural area of Kwa Zulu Natal. “I was diagnosed with HIV in 1999 and then I was initiated on ARVs in 2004. As time went on I developed a mental health problem due to stress, and I started mental health treatment in 2010. To access ARVs is not a challenge – it is easily accessible. Doctors are always available when I am booked for an appointment. All services are in place. The challenge that I have is that mental health hospitals are very far from where I live. I need to take one or two public transport to reach the place.” The message is clear: without integrating mental health into all health care, we may well fail to achieve other health system goals.
These are the real life experiences of South African who for too long have been overlooked and forgotten. The Campaign draws attention to this crisis in the right to health and dignity of some of South Africa’s most vulnerable citizens, and sounds a call to action. The National Mental Health Strategic Framework was an important step: now let us continue to move forward.
This story has been told countless times. Published in a stream of newspaper scoops. Handwritten on cardboard boxes carried by exasperated activists. In the anonymous letters of frustrated doctors. In the statements of concerned stakeholders. In the defence arguments of the so-called ‘Bophelo House 94’, convicted of attending a peaceful night vigil. In the reports of the South African Human Rights Commission. Most recently, through the piles of testimony heard and analysed by the People’s Commission of Inquiry.
The evidence is mounting and it cannot be ignored any longer. It certainly cannot be dismissed as ‘propaganda’ from the Treatment Action Campaign (TAC). It is the voice of the people who try to use clinics and hospitals every day, battling inefficiencies and negligence, in lengthy processes and undignified conditions. It is the voice of the healthcare professionals who no longer have the time, resources or support to provide appropriate medical care to patients. It is the voice of the 24 percent of doctors who stopped working for the Free State Health Department in the last year. The reality is that while some throw parties to congratulate themselves on ‘gains’, poor people across the Free State suffer frustrations, indignities and tragedies within the system.
The People’s Commission of Inquiry into the Free State healthcare system listened to these voices. It found that little has changed since the National Health Department investigated the province in 2008 – rather that the situation may even have worsened. Based upon their findings, clear recommendations have been outlined to address the crisis*.
One thing is certain, strong leadership and political will are needed to turn things around. The question now is whether the Free State government will hear the loud cries of this collective voice?
We know it is difficult to hear criticism. We know it is tough to be faced with frequent complaints. We know it is hard to b e told you are failing. But, remember: it is not as difficult as watching a loved one die on the side of the road waiting for an ambulance that never arrives. It is not as tough as being told to mop up when your waters break as you are going through a painful labour. It is not as hard as struggling to walk to the clinic on crutches, only to find that the stock of pain medication has run out.
Only time will tell if Premier Ace Magashule and MEC of Health Benny Malakoane hear these cries. But if they fall on deaf ears, if these issues are not addressed, if justice is not served, then we will be left with no choice but to return to the days of civil disobedience. Freedom or death, victory is certain.
Findings and recommendations of the People’s Commission of Inquiry
Finding 1: The South African Government, in particular the provincial Free State government, is failing to assume its responsibility to protect access to healthcare services, especially for the poor in the Free State.
A national task team should be established by the National Department of Health to investigate the findings of this report in the context of the 2007 Human Rights Commission report and the 2009 IST reports;
The parliamentary portfolio committee on health must hold the national and provincial executives to account based on the commission’s findings and recommendations, and demand that the national task team completes its work swiftly and thoroughly, and without political interference;
The South African Human Rights Commission should, as a matter of urgency, return to the Free State and investigate how the situation has changed since their 2007 report;
The Free State Department of Health should establish a provincial task team to deal with the challenges outlined in the commission’s findings, and openly involve community and civil society in this process. The department must commit to fixed time frames for this process, and must respond comprehensively to the issues outlined in this document within a fixed period. It must show its commitment to move forward by setting transparent targets and deadlines to meet its goals.
Finding 2: Shortages and stock-outs of medication and medical supplies are chronic, endanger the lives and health of vulnerable people across the Free State, and discourage people from accessing health care and trusting in the healthcare system;
The provincial Department of Health must implement the recommendations made in the 2014 Stock-Outs Survey in South African Second Annual Report. Namely, that:
The provincial Department of Health follow the example set by the National Department of Health and the Limpopo, Gauteng, Northern Cape, North West and Western Cape provincial health departments, and engage with civil society on the causes of stock-outs and potential solutions to improve the supply chain.
The department take urgent action to address those facilities in Fezile Dab Lejweleputswa District reporting ARV and TB stock-outs, where close to 42 percent (13/31) of facilities reported ARV/TB stock-outs.
The provincial department develop and implement a provincial action plan to resolve and prevent stock outs in the province, with clear timelines and an evaluation of these action plans and provision for emergencies, and focus on the worst hit districts.
The National Department of Health, in collaboration with the provincial Department of Health, establish and implement national minimum standards for supply chain management and the resolution of stock-outs.
The provincial Department of Health, in collaboration with the provincial Treasury, must adequately cost the provision of pharmaceuticals in the province. According to the provincial Department of Health, the unavailability of medicines in the provinces is due to “declining provincial allocation and increasing price of medication, including the increasing patient numbers”.
The department must, as a matter of urgency, address the current shortage of pharmacists in the province and ensure that it has the required funding to fill these positions in the province.
Finding 3: The provincial emergency medical services and patient transport systems are characterised by long waiting times, unreliability and indignity – all experienced in the most vulnerable and frightening moments of life for people who depend on these services; and, many of the oral testimonies spoke of people having to make out-of-pocket payments for transport to health facilities.
The Free State Department of Health, as a matter of urgency, must address the current shortage of ambulances in the province in order to meet the national norm of one ambulance per 10,000 population;
The department, with the support of provincial Treasury, should undertake a full costing of the provincial EMS programme;
The department must review its Planned Patient Transport programme to ensure that patients have access to transport to and from health facilities, to prevent unnecessary out-of-pocket payments. This will also help to strengthen service at the district level and ensure the referral system between facilities is accessible to patients, thereby effectively operationalising the primary healthcare approach;
The department must take the necessary steps to address the shortage in emergency medical personnel by filling all vacant posts.
The provincial Department of Health must cut red tape and bureaucracy – people are being shunted between one facility and the next unnecessarily because of processes that do not work, including a muddled patient referral process, poor planning for patient transport, and mismanagement of the deployment system for ambulances.
Finding 4: Healthcare facilities in the Free State are often in disrepair and equipment is frequently broken or unavailable.
In line with the recommendations made by the SAHRC in 2009, the department must ensure that there is adequate funding and personnel to properly maintain health facilities, including being fitted with the appropriate technology (medical equipment, ICT equipment, access to internet, etc.).
The department, in conjunction with the Department of Public Works, must strengthen the infrastructure unit (engineers, maintenance crew, quantity surveyors, quality control) to address backlog maintenance, routine maintenance and the building of new health facilities, and to prevent any unnecessary under-expenditure of the Health Infrastructure Grant.
Finding 5: Insufficient human resources and poor management of human resources prevent the fulfilment of the right of access to healthcare services.
The findings of the 2012 National Healthcare Facilities Baseline Audit (the ‘Audit’) corroborate the communities’ portrait of human resource shortages in the Free State. The Audit notes the ommission of national human resource norms as a major impediment to proper staffing and thereby the fulfilment of the right of access to healthcare services. The lack of national norms persists today.
At the provincial level, the Audit measured compliance with six ‘Priority Areas on Vital Measures’. Free State healthcare facilities were, on average, only 44 percent compliant with the priority area, measuring whether staff demonstrate a ‘positive and caring attitude’, and only 57 percent compliant with requirements related to ‘waiting times’.
The Free State Department of Health, as a matter of urgency, must address the numerous human resource issues, problems and challenges, including those related to staff shortages and the impact thereof on the provision of quality health services;
The department must address the Report of the Auditor General year ended 31 March 2013 and ensure that there is a human resource plan in place, that vacant posts are filled within 12 months and that an organisational structure be in place based on the department’s strategic plan;
The provincial Department of Health should carry out investigations into each allegation made in the verbal and written testimonies with regard to health personnel failures – including neglect and bad attitudes – and that, following this investigation, disciplinary action be taken where appropriate and compensation be paid out to victims of neglect or ill-treatment;
Leaders at the provincial Department of Health must pay attention to staff complaints – working conditions for nurses, doctors, paramedics and ambulance drivers are far from ideal. Senior officials must communicate with staff on the ground to understand the failings in the system and to rectify these with better planning, on-going training, support, and provide adequate facilities and supplies in the clinic and hospitals where they work;
Improved staff support systems should be put in place by the provincial Department of Health. Staff are aware of the constant projection of failure in the health system and are sensitive to the fact that, ultimately, healthcare workers themselves become victims to the system and are alienated from what they know to be proper professional conduct. Healthcare staff choose this vocation because they care about individuals. However, they are constantly susceptible to failure because they do not have the time, tools, or medicines to do their job properly. Support systems must urgently be put in place to deal with the systemic psychological and social malfunctioning of the entire system of healthcare in Free State. Stress, exhaustion, and burn out as a result of the malfunctioning system can manifest in the mistreatment of patients by staff. Wellness sessions and psychological evaluation relating to individual suitability to work in this sector should be established;
The National Department of Health must rapidly finalise and clarify its national community healthcare workers’ policy, and the provincial Department of Health must set in place a transparent plan to re-employ the Free State community healthcare workers under dignified and formalised working conditions.
Finding 6: Whistleblowing and candid engagement with the provincial department by healthcare personnel and/or the public is discouraged and at times met with severe intimidation.
The National Department of Health must ensure that safe mechanisms are in place within the provincial Department of Health for staff and patients to communicate their experiences of the healthcare system in the Free State;
That the provincial government must create a system whereby management teams regularly visit communities to see and hear the needs and concerns of citizens first-hand.
Finding 7: There is ineffective, unresponsive and unaccountable leadership, particularly from senior officials in the provincial department.
That the MEC for Health and other responsible individuals be held accountable for the failings in the healthcare system in Free State. It is essential that those in positions of power set higher standards of professionalism and respect for patients.
Finding 8: The provincial health department has a history of poor planning, budgeting, expenditure and oversight.
That the Free State Department of Health must communicate what the annual budget is per clinic and facility. This information should be displayed clearly at all facilities, to be monitored by those who use it;
The department must ensure that clinic committees and other structures understand that their responsibilities include monitoring the resources that ensure the proper running of health facilities, and that these structures are supported by the provincial department.
TESTIMONIES Interviews by Ufrieda Ho
Betty Mabuza, Welkom
Talking about the child she lost isn’t easy for Betty Mabuza. The 31-year-old says some days she manages to talk about the baby boy, who would have been her second child, without a tear falling. Most days, though, she crumples in a heap of heartache and despair.
‘Sometimes I am at the PEP Stores and I see all the baby clothes they have and I can’t help thinking about him,’ says Mabuza, breaking down. It’s only five months since the ordeal of losing her child. Mabuza gave testimony even though she knew it would stir up raw emotions; she wanted to be heard. She says she knows she should have been given better care and she knows that, had nurses and doctors done better, her boy would have had a fighting chance.
Mabuza arrived at the commission as part of the Welkom delegation giving testimony on day one. She’s a resident in Tshepong, near Odendaalsrus. Speaking through an interpreter, she said: ‘I fell pregnant last year and by February this year I had done my whole nine months. I was last at the Tshepong Clinic in February with pains but the sister told me she couldn’t transfer me to Bongani Hospital because my tummy was inconsistent – sometimes big and sometimes small. They just gave me medication and told me to go home.’
Days later though, she felt pains she couldn’t understand so she returned to the clinic, where she was made to wait before nurses told her her appointment dates were wrong and that she should walk to the hospital if she wanted help.
‘I started to walk home. On the way I did a call-back to my mother and, when she phoned, I said to her: “Mama I think I’m about to give birth, but I’m still walking.” I just had to walk and pray. I begged God,” she says. Tears roll down Mabuza’s cheeks. She made it home and got to the Bongani Hospital that morning. But there she would undergo more humiliation and maltreatment, she says.
‘When I got to the hospital, the sisters told me to sit and wait, and I waited for hours in pain. It was after 3 pm in the afternoon when they took me to a bed and they told me to sit upright. I was checked by more than 10 nurses and they all said they could feel nothing, and said there weren’t any problems and I should wait for the doctor,’ says Mabuza.
When the doctor arrived though, he had the most devastating news for her. ‘He looked at me and told me to just rest and sleep on the bed. Then he examined me and he looked me in the eyes and said angrily: “What does it mean if the baby’s heart is not beating?” I just kept quiet,’ she remembers.
Then the doctor said to her: ‘This child you are carrying has been dead since January.’ Repeating these words leaves Mabuza sobbing. It wasn’t the end. She was left in the room alone, even as labour had started. She says: ‘A nurse came in and just said, “Are you able to give birth on your own?” I knew I couldn’t but only later, when I looked down and the head of the baby was already coming out, did the nurses come to help me.
‘I pushed so hard I thought I was going to die. They showed me my baby. It was terrible, my child was rotten,’ says Mabuza, choking back tears.
Worse still, straight after this traumatic process, the nurses made her wait in the corridors, without counselling, a kind word, or bathing her. It was only when the nightshift nurses arrived on duty that she was bathed.
That day in hospital was months ago, but the sadness hasn’t left her. Her pain and trauma remain. She says: ‘I don’t eat a lot, I think about him a lot. I think that if my child could be dead inside of me for so long then I should die too.’
TESTIMONIES Interviews by Ufrieda Ho
Vele Gadebe, Harrismith
Vele Gadebe is a doting grandfather; he loves two-year-old Melokuhle. But much as he wishes all that’s wonderful in the world for her, he knows she will never have one of the most precious things: she’ll never know her mother, Thandeka.
Thandeka died when Melokuhle was just three months old. Gadebe will never forget the days leading up to his 22-year-old daughter’s death. It’s what’s brought him to the People’s Commission of Inquiry.
The Harrismith local’s testimony is of the callous attitude of nurses, ‘too busy to give his child oxygen’, ambulances that never arrive, bureaucracy, bullying, and no one with answers or willing to take responsibility.
It started after his daughter had a caesarean section. Thandeka started coughing badly and Gadebe ended up taking his daughter to the Thebe Hospital near their home. But doctors there only see patients between about 8 am and 1 pm, says Gadebe, despite the fact that people arrive hours earlier to queue and that there are still people in the queue after lunch hour.
‘The nurses just told me, “you can write your complaints in the book” when I complained,’ says Gadebe. He took his daughter to a private doctor, someone he identified as ‘Dr Lucky’. By this point Thandeka was weak, unable to walk or to lift herself from a prone position.
‘Dr Lucky told us to take her to the hospital and said we should call an ambulance, but the ambulance never came. In the end Dr Lucky took us there himself because he knew that she might die,’ says Gadebe.
He adds: ‘When we arrived at the hospital I asked for a wheelchair and some help to carry my daughter from the car. The nurse pointed to the wheelchair and told me I had to abide by her rules or leave the hospital.
‘When I asked her for something to help my daughter breathe, she said she was busy and I would have to wait – she was too busy to give oxygen for my child to breathe.’
Finally a doctor appeared. Gadebe complained to him and all he did was to give him a number for the hospital where he could lay a complaint. While the doctor saw to Thandeka, Gadebe tried to lay a complaint, and the supervising nurse who was had bullied Gadebe disappeared.
Moments later, though, the doctor reappeared. ‘He said, “Who is the father of this child?” and when I said it’s me, he told me he wanted to talk privately with me. My daughter had passed on. That is how it ended.’
Virginia is a small gold mining town in the Free State. This once-lively town has slowed down significantly, with only a few of the mines still operational. The streets are quiet, and the first petrol station heading into the township closed years ago. Many of the residents describe it as a ghost town.
However, there is another challenge facing this mining town, not obvious if you are simply passing through. In June 2013, Dr Benny Malakoane, the MEC for Health in the province, dismissed over 3 000 community healthcare workers (CHWs). In doing so, he severed the only dignified and, for many, lifesaving connection to the public health-care system for thousands of poor people. These are people who were reliant on CHWs to bring them their medication, bathe them and often make sure they had a meal. With the loss of the CHWs, families have lost loved ones, children have become orphans and hundreds of people have lost lives that could have been saved.
Tears come to Diekesteng Malunga’s eyes when she talks about all the people that have died since she was dismissed from her job.
Diekesteng, known to the community as “Mma Mokoena”, lives in Meloding Township, Zone 14. It is only 10 minutes away from the town of Virginia, but the dusty shack-lined streets make it seem a world away. Mma Mokoena had been a CHW for 15 years. She started volunteering her time to the sick and needy within her community long before she became known as a “community health-care worker”.
“When we started this thing, we noticed that there were a lot of people suffering in our community, because they were sick and had nobody to help them,” she says. During the early 90s there was very little understanding of HIV/AIDS and people who had the disease were treated as outcasts, and had no support system.
“These people were sick and their families wanted nothing to do with them,” she says. In light of this, Mma Mokoena and another group of women banded together and started going door-to-door to see if there were any sick people who needed assistance. That was in 2000 and Mma Mokeona has not missed a single day since. She has served the community of Zone 14 selflessly, earning her reputation as the community’s “go-to woman”. Many of the people that have showed up on her doorstep over the years have been referred to her by neighbours and other patients.
“Why must people die?”
Sabelo Motaung (not his real name) was in his final school year when his mother, Nthabiseng, suffered a stroke. His father had passed away when he was younger and it was left to him to take care of both his ill mother and his older brother, who is mentally unwell.
In the beginning, the neighbours were willing to help Sabelo by taking care of his mother while he was away at school. But as her health deteriorated and the situation got worse, people stopped coming to help. Sabelo struggled to balance his studies with caring for his mother. Overwhelmed, he went to the local clinic to ask for assistance.
“I told them my mother was sick and that I needed help, but they told me that they couldn’t do anything unless she came to the clinic herself,” he says.
The local clinics do not allow anybody else other than patients to collect their medication. CHWs were the only people who were allowed to collect their patients’ medication on their behalf and, when they were dismissed, many people stopped taking their medication because they were unable to make it to the clinic. Those who try often return home empty handed, having not made it to the front of the queue by the end of the day.
After being turned away from the clinic, Sabelo went home and did what he could for his mother, but on his own after the dismissal of CHWs there was not much he could do. His neighbours then insisted he call Mma Mokoena. Despite having lost her job, Mma Mokoena didn’t hesitate to help Sabelo. “I will never forget what I saw at that house,” says Mma Mokoena.
When she arrived at the house, she found Nthabiseng lying in a cockroach-infested bed, with bottles of various medication by her bedside table. Nthabiseng had soiled herself and someone had removed her underwear and wrapped her lower body in plastic in an attempt to prevent her from soiling her sheets even further. “The first thing I did was undress her so that I could wash her, and as I started to wash her I found maggots coming out of her lower body,” said Mma Mokoena.
Nthabiseng was taken to the hospital, but they sent her back home, saying there wasn’t anything more they could do for her. She died a few days later. “It hurts me that people have to die, when we are here to help people. Why must people die?” Although his mother did not live, Sabelo says that her last days were a relief to him.
“When Mma Mokoena came, she did everything for my mother, she treated her like a baby even though she was older than her,” he says. He believes that Mma Mokeona may have been able to save his mother’s life, if she had gotten to them sooner.
“I just wish that whoever employs her can give her her job back because she is doing such important work. For those of us who have no one, she is everything,” he says.
An opportunity for human contact
Mma Mokoena still attends to five of her most critical patients every day. One of these patients is Mpho Dihlopo. Mpho (51) has been ill since 2001. He was diagnosed with a heart disease and HIV. When his family heard that he had HIV they disowned him and left him to live alone in a two-roomed windowless house. Sick, alone and dying, in a desperate attempt to get help, Mpho got out of bed and crawled along the streets holding onto fences and anything that could support him. That is how he arrived at Mma Mokoena’s house.
“She let me in and I just said, ‘Mma Mokoena, I am suffering and I am hungry’,” he says.
Mma Mokoena did not ask him any questions. She went straight to the kitchen and began to cook for him. At the time, Mpho was very weak and had no appetite.
“She started feeding me soft porridge to drink, and she would make me eat so that I could get a little stronger,” he says. For the 14 years since that day, Mma Mokoena arrives at Mpho’s house every morning to check on him. For Mpho, these morning visits are more than just a check in, they are an opportunity for human contact. “It helps me so much when I just sit and chat to her, when I have someone to talk to even for a few minutes each day, my heart feels much lighter,” he says.
On days when Mpho feels a little bit stronger he is able to walk to Mma Mokoena’s house for his evening meal. He attributes what little strength he has to her care. “If it wasn’t for her, I wouldn’t be here.”
An invaluable asset
The battle is to get the CHWs reinstated. The issue is more than just ensuring the CHWs have money to put food on the table, it is about making sure that the public health-care system in South Africa works for those on the periphery. CHWs are an invaluable asset to the country’s health-care system. Other than providing support to people who are in the system, they also play an important role in identifying people who have fallen on the wayside, and those in rooms with no windows. They are able to track people who have defaulted on their treatment and ensure that they are monitored.
Zone 14 is just one example of a community that is suffering without the assistance of CHWs. All over the country, there are hundreds of patients who are losing hope of ever getting better, patients who are dying just because they cannot get their medication and are patients who are dying every day, betrayed by the very health-care system that promises them life.
“The doctor examined me and he looked me in the eyes and said angrily, ‘What does it mean if the baby’s heart is not beating?’ I just kept quiet,” she remembers. Then the doctor said to her, “This child you are carrying has been dead since January.”
hrough tears Betty Mabuza recounted the deeply painful experience of losing her baby at Bongani Hospital in February this year. With a quiet resolve she described what was clearly an absence of appropriate medical care. She described the indifference and even disdain shown to her by nurses and doctors, people she was relying on in a time of extreme vulnerability and need, to help her. The Free State public health-care system failed her. Sadly she isn’t alone.
The system failed more than 50 people who publicly testified at the People’s Commission of Inquiry held in Bloemfontein in July. It has failed the man who had “been four months without insulin, going on to a fifth month”, as the stock-outs of medicines ravage in the province. It has failed Amelia who watched helplessly as her grandson suffered dizziness, vomiting, and even his skin beginning to peel off, only to find the 7-year-old had been “given adult pills” instead of paediatric formulations.
It has failed the young man who told his mother, “Mama, don’t call an ambulance, I’m finished.”
Moreover it has failed the countless further people who provided written testimony to the commission, and the hundreds of others who attended community dialogues to share their grievances in May. It has failed health-care workers who according to one “have simply lost their work ethics because of the challenges they are facing”. It has failed community health-care workers who have lost jobs, income, and must now watch those they once cared for, suffer alone.
In the last few years, the Treatment Action Campaign (TAC) has received an ever-increasing number of reports of medicine stock-outs, absent emergency medical services, long waiting times at clinics, health-care worker negligence, broken equipment, and poor quality facilities, to mention a few. These reports point to a provincial health-care system that is failing the people it is meant to serve. It points to a health-care system that has collapsed. “According to Section 27 of the Constitution this is a gross violation of human rights,” states TAC General Secretary, Anele Yawa. “One wonders, how can you allow such to happen under the government of the people?”
The People’s Commission of Inquiry was held to investigate these reports and expose the truth of the situation in the Free State. The inquiry was presided over by an independent group of commissioners including Thembeka Gwagwa, Bishop Paul Verryn and Thokozile Madonko. Representatives from government, civil society, and the media came to hear the voices of people such as Betty and Amelia – people who rely on the public health-care system to survive.
It was not without disruption. Around 80 school children arrived on the first day in two buses in an apparent attempt to disturb proceedings. Not long after a man from the audience, identified as “Tebogo”, stood up to demand that the Free State Health Department be able to respond to each and every testimony. “TAC is not the biggest organisation in South Africa. You are not the Public Protector or the Human Rights Commission. You must give the government the right to answer,” he says. Despite explaining that the department had been extended the opportunity to respond at the end of each day, he continued, deliberately causing an ongoing disruption. During the commotion the entire Free State delegation left on account of “fearing their personal safety”. Despite these challenges and a few further phone calls from the crime and intelligence unit, the proceedings managed to continue, and the important testimonies were heard without any further problems.
Currently the commission is finalising a report that will outline their findings from the inquiry, as well as offer solutions to reverse the collapse of the health-care system. On 10 November the commission will host an open dialogue to address these issues effectively. An invitation will be extended to the Free State Department of Health, as well as many other stakeholders, to engage in this dialogue process and work together with the commission to turn the problems in the Free State around. “Health issues are political issues and they need political intervention. As activists we are not scared to speak truth to power. We know the struggle cry of ‘freedom or death, but victory is certain’,” says Anele Yawa.
Community healthcare workers are the backbone of South Africa’s health system. There is no doubt that this cadre of healthcare worker play a critical role in ensuring that people living with HIV and/or tuberculosis are diagnosed early, take their medication and access the health system when issues arise.
Their role is especially important in a province like the Free State, where medicine stock-outs, absent emergency medical services, long waiting times, staff shortages, and severe negligence warn of a collapsing healthcare system. Here it is especially important that community healthcare workers can continue to care for South Africa’s poorest and most vulnerable people. However under the leadership of Free State MEC of Health, Dr Benny Malakoane, 3 800 community healthcare workers lost their jobs in the first half of 2014. Instead of receiving the proper recognition and fair pay they deserve, they are now struggling to survive and the people they are meant to serve suffer without access to healthcare. In the next couple of pages we highlight the ongoing court case involving the #BopheloHouse94 as well the TAC’s ongoing efforts to improve healthcare services in the province.
In April 2014, the Free State Health Department MEC, Benny Malakoane, issued a four-sentence circular that, in effect, fired 3 800 people. The dismissed Community Health Workers, or CHWs, were the front line of primary healthcare, capable of bringing services to those who can’t reach health facilities – a cadre of workers upon whom the Free State’s poorest and most vulnerable depended. Yet, while their jobs were critical and gruelling, CHW pay was low, just over R1 000 per month for most and, in the Free State, they often went months at a time without being paid at all.
A group of CHWs organised to respond to their working condition, their sudden and unexplained dismissal, the MEC’s subsequent refusal to meet them and the general deterioration of the health system under the MEC’s watch. On a winter evening on 9 July 2014, about 130 women gathered at Bophelo House, the headquarters of the Free State Health Department. They intended to hold a vigil through the night until the MEC arrived at work the following morning, at which point they would once again request a meeting with him. The Public Order Police, the specialist police unit mandated to deal with crowd management, arrested the women in the early morning hours of 10 July for what they called an “illegal gathering”. More than 100 of the CHWs, many of them elderly, all of them unemployed, most of them poor and far from their homes, spent several days in jail, many without access to essential medication.
Over the intervening year, they were called to court on seven occasions, before the trial began on their sixth appearance—the trial would turn into a marathon, spanning a total of two grueling weeks. Each time they appeared in court, the CHWs travelled to Bloemfontein from all corners of the province, often hundreds of kilometers, leaving family responsibilities behind. They slept on church floors or benches in community halls and suffered conditions that one magistrate, after one of the CHWs fainted in a hot and crowded courtroom, called “inhumane and undignified”.
Eventually, the court moved the proceedings from the magistrate’s court to the high court – a room capable of accommodating all of the accused. From 6 to 10 July the trial finally got underway. The testimony from Public Order Police over those five days was shocking. They repeatedly explained how they routinely – as per a long-held institutional practice – make unlawful arrests, violate the rights to freedom of expression and demonstration, and use apartheid-era means of crowd control. In the course of their testimony, it became obvious that this case is about more than a disagreement between a few gogos and an MEC – it is about a serious threat to a right fundamental to a free society.
The Regulation of Gatherings Act:
The accused are charged with violating the Regulation of Gatherings Act, a 1993 law passed in the lead up to the 1994 elections marking the fall of apartheid. Today, the law remains the primary piece of legislation through which the right to assembly and protest, as provided in Section 17 of the Constitution, is managed. The law requires anyone who wants to hold a “gathering”, defined as a group of more than 15 people, to give notice to the police of their intent to do so. This requirement seems rather innocuous, even a good idea: it enables people to work with the police to ensure that demonstrators are protected and that people can exercise their rights safely. But in practice, across the country, police routinely use the law to prevent protest, stifle dissent and arrest those who speak out against power.
In the Free State, police have added their own interpretation to the way in which the legislation is abused. For context, one must understand what kind of conduct the law does and doesn’t criminalise: it is a crime to convene a gathering and fail to give notice to the police of such gathering; it is not a crime to attend a gathering for which no notice has been given.
In some very extreme circumstances police can prohibit a gathering from taking place. Gatherings can, for the most part, only be prohibited if the police receive “credible information under oath” of a threat that the gathering will result in “serious” disruption to traffic, injury, or “extensive damage to property” and the police will be unable to manage the threat. In contrast to an “un-notified gathering”, it is a crime to attend (or convene) a prohibited gathering.But, the understanding of this law by the police in the Free State seems to be that if there is a gathering of 15 or more people and the municipality has not been informed of and provided “authorisation” for that gathering, everyone at the gathering is guilty of a crime and should be arrested and charged with a crime carrying a sentence of up to one year imprisonment.
This amounts to a requirement, in essence, that people can only exercise their rights when given express permission to do so, a particularly frightening requirement in the context of the right to protest. This understanding of the law is eerily akin to apartheid’s infamous Internal Security Act and is diametrically opposed to the current state of the law under the Regulation of Gatherings Act. The police seem to be applying the law in this way across the province. Just recently, approximately 30 health activists in Reitz were arrested for similar reasons. It is abundantly clear that these arrests intend to stifle dissent and assembly, the precise rights the Gatherings Act is meant to manage and protect.
On 1 October 2015, Magistrate Z Thafheni convicted the Bophelo House 94 of attending a prohibited gathering. The Magistrate, in an impressive feat of contorted reasoning, found that failure to provide notice to police of a gathering renders the gathering “automatically prohibited”. On 2 October 2015, she sentenced the Bophelo House 94 to a fine of R600 or three months imprisonment, both suspended for three years provided that they do not violate section 12(1)(e) of the Gatherings Act. The Bophelo House 94 embraced the conviction as an opportunity to appeal to a superior court to clarify the law and ensure that police, prosecutors and magistrates across the province are no longer able to violate people’s right to protest in this way. The legal team is working on the appeal.