Op-ed: What you didn’t see at the Esidimeni arbitration
The decision of Former Deputy Chief Justice Dikgang Moseneke in the Life Esidimeni arbitration is an important landmark following more than two years of resistance, negotiation, confrontation, heart break and horror, writes Section27 attorney.
For the claimants, Justice Moseneke ordered the payment of constitutional damages, as well as damages for psychological injury and funeral expenses; and counselling for claimants and three members of their families. Justice Moseneke’s award also reached further than the affected families. He awarded the development of a monument; reporting to the Health Ombud and the claimants on the implementation of the recovery plan for Gauteng Health every six months; reporting implicated health care professionals to the Health Professions Council of South Africa; and finally he ordered government to pay the legal costs of all claimants.
The Life Esidimeni arbitration attracted significant public attention. The 43 days of evidence and two days of legal argument were broadcast live. The country recoiled watching the callousness and arrogance of public officials, civil servants and non-governmental organisation (NGO) owners and the studied disregard to which they subjected mental health care users and their families. Viewers cried with family members describing the state of the bodies of loved ones, left to rot in malfunctioning mortuary facilities. Members of the public were enraged by the successive failures of multiple layers of the state to protect mental health users, from political officers, high level officials, the police, the provincial legislature, the Mental Health Review Board and others.
In attempting to stand back from the case (something that is difficult for us at Section27 to do having worked on it for two years), it strikes me that despite the unusually dedicated and sustained engagement by the public in the Life Esidimeni matter, there remain some important things that most people did not see.
The first notable characteristic of the Life Esidimeni disaster leading to the arbitration process is the solidarity that it inculcated in the families of the deceased.
Two years ago, when the Gauteng Department of Health first decided to terminate the contact with Life Esidimeni and the first murmurs of dissent among families began, many families did not know each other. Some may have spent time together at family days at Life Esidimeni and crossed paths when visiting relatives but they lived different lives, in different parts of the province, with varying personal circumstances.
The families also had very different levels of understanding of their rights and the rights of the mental health care users they called their mothers, sons, aunts and cousins. Some were used to being assertive: shop stewards, unions representatives, confident professionals. Others were less empowered: unemployed or badly paid, struggling to afford transport money to visit their loved ones, unaware of the diagnoses of their family members beyond the fact that they were mentally ill.
The decision to move mental health care users out of Life Esidimeni brought sparks of activism out of many families. And that activism brought solidarity. There was now a group of people, working together in an attempt to stop the mass discharges and, when that did not work, helping each other to find loved ones who had been scattered across the province. They marched and protested and prayed together. Where their loved ones died, there were others in the same situation to lean on. Through the legal process, the families drew together further. They became aware of their rights and astute in articulating the government’s breach of its obligations.
They saw each other, day after day at the arbitration and at meetings with the legal team. They supported each other. Some stayed with other bereaved families when transport ran late, arriving at the arbitration bleary eyed the next day.
The families became a strong, empowered, and united community of activists.
The second perhaps unseen aspect of the Life Esidimeni disaster is the work and persistence that went into the resistance. At Section27 alone, the disaster consumed two attorneys and a legal researcher for much of two years and involved countless other staff calling clients, offering support, and responding to media. Section27’s in-house counsel and external counsel were engaged throughout and represented families and organisational clients in two court cases, in 2015 and 2016, and in the arbitration.
Quite apart from the legal work, the Family Committee, a small group of dedicated family members, organised families and led protests. After the Ombud’s report, Family Committee members worked full time with the Department to relocate survivors. The families themselves, who have been accused of dumping their relatives at Life Esidimeni, fought determinedly for months to protect the interests of their loved ones. Many travelled around the country in search of people who were, in fact, dumped by the Department in unprepared NGOs.
The South African Depression and Anxiety Group (SADAG), the organisation to which families first turned when they heard about the plan to terminate the contract, worked tirelessly, attending fruitless meetings with the Department in which details were requested but not provided. SADAG staff members called NGOs daily in an attempt to find missing mental health care users.
The South African Federation for Mental Health knew from the first that the NGOs that it works with would not be able to absorb the mental health care users from Life Esidimeni. They raised the alarm in the press and litigated against the Department.
The South African Society of Psychiatrists (SASOP) played the vital role of representing health care workers standing up against what was predicted to cause “devastating health impact”. Health workers can be loath to speak up publically against officials, justifiably fearing reprisals, but SASOP stood firm. SASOP was an applicant in litigation against the Department twice and its former President, Dr Mvuyiso Talatala, gave important oral evidence in the arbitration.
Arbitration process a landmark
A court case or arbitration can seem from the outside like an event but in fact it is a landmark in a long process. In public interest matters, litigation or similar processes come only after the failure of attempts to solve problems in other ways, where affected people have been unheard in their protest, reasoning with power has been unsuccessful and no other option is available.
In the case of Life Esidimeni, the process leading up to litigation, and legal challenge itself, was repeated three times – culminating in litigation in December 2015, again in March 2016 and finally in October 2017 to February 2018 with the arbitration. It takes immense fortitude for stakeholders and litigants – in this case families, SADAG, SASOP and the Federation for Mental Health – to keep pushing for years in the face of a powerful but contemptuous opponent.
The Life Esidimeni arbitration has fostered solidarity and has honoured the persistence of people who would not accept that mental health care users should be subject to abhorrent treatment and discrimination. It revealed some of the worst in our health system and government, and also some of the best in that same health system, in civil society, in government and in our citizenry.
Sasha Stevenson is an attorney with Section27, which represented a number of the families at the arbitration