On Monday, to the delight of families, former Deputy Chief Justice Dikgang Moseneke delivered his final compensation judgement in Johannesburg, a result of over 40 days of testimony during the arbitration hearings. It included the amount of R200 000 previously agreed to by the state, but also an additional amount of R1 million in constitutional damages which government had argued against.
The 125 claimants – some related to those who died and some whose loved ones survived the “torture” endured during and after the move to unlawfully licenced and ill-equipped non-governmental organisations (NGOs) – will receive a uniform amount to be paid within three months of Monday’s announcement.
“This is a watershed moment in South African law. It is a watershed moment for the constitution. It is a watershed moment for justice,” said Mark Heywood from Section27 which represented the majority of the affected families.
Lucas Mogwerane, whose younger brother was one of the first of the 144 fatalities, told Health-e News that “after two years of strain, this is one of the happiest days of my life”.
“This has given me some closure but this is only the half-way point; it is an absolute must that the perpetrators of this horror are brought to justice,” he said.
Moseneke only read part of his almost 100-page judgement, lambasting government officials for the “pervasive”, “egregious”, “torturous” and “murderous” violation of the victims and survivors’ constitutional rights.
He said the testimonies of former Health MEC Qedani Mahlangu, former HOD Dr Barney Selebano and former director of mental health Dr Makgabo Manamela, the “architects” of the project, were “improbable” and “blatantly untrue”.
All three shifted responsibility for the decision to terminate the long-standing contract with Life Esidimeni and continue with the project, that saw 1711 patients moved hurriedly and en-masse, despite reports that people were dying.
He said the evidence proved that cost-saving, a direction from the Auditor General about long-standing contracts or pursuing deinstitutionalisation of mental health weren’t valid reasons for the move, as cited by these officials.
“Besides being untruthful, the reasons given on which this decision was based are irrational and a blatant breach of the law and constitution. What then was the real reason?” he asked.
While visibly elated by the award, many families echoed Moseneke’s question and said they will only find real closure once the implicated officials are held to account.
“I am really happy [the arbitration process] has come to an end but I am hoping they are criminally prosecuted,” said Marie Colitz, who lost her husband at one of the most deadly NGOs, Mosego Home. “I see my husband’s face every day – it’s like a video in my head but I will not get closure until there is justice against all those involved for how they treated Frederick. That’s what we’ve been fighting for from the beginning.”
Moseneke, who donated his earnings from presiding over the arbitration to the education of young lawyers, said that justice doesn’t end with the compensation award and issued a stern call for police to “do their work”.
“We still don’t know the reasons why this was done. This redress is great but it’s not the end. It has vindicated us and given us an opportunity to reload because criminal charges are what we ultimately want,” said Christine Nxumalo, who lost her sister during the tragedy.
Said Heywood: “It is clear from Moseneke’s judgement that government officials acted unlawfully. If I were commissioner of police I would be sending my police officers to arrest them and begin the process of pressing criminal charges in one form or another. Regardless, this judgement is of unique importance not only to South Africa, but the for the world: recognising the health rights of the most vulnerable in society, in this case the mentally ill.”
An edited version of this story was published by IOL.co.za