Life Esidimeni: Compensation paid, but justice delayed

Christine Nxumalo is stuck in a “blank space”. She devoted herself to the Life Esidimeni family committee for over two years, but after the arbitration came to a close in March, she struggles to focus in the morning.

“I wish I could say it's easy, but it's not,” she said. Nxumalo's sister Virginia Machpelah died after she was moved to the Precious Angels NGO. Machpelah's daughter died last year.

In June, the Gauteng government paid compensation to families involved in the Life Esidimeni arbitration and continues to process ongoing claims. It's providing counselling and is working on implementing retired Justice Dikgang Moseneke's other recommendations.

But families are continuing to adjust to life after they spent two years fighting to protect their loved ones, sat through the lengthy arbitration and, for many, had to face the reality that they'll never see their relatives again. They want the responsible officials to face justice.

In 2016, the Gauteng health department ignored advice from families and experts and moved 1,711 mental health care users out of Life Esidimeni and into NGOs or community care. In conditions described as torture, 144 patients died; 20 are still missing.

Inquiries by police and the Special Investigating Unit (SIU) are under way, but even after Moseneke's arbitration and an investigation by the health ombudsman, no one has been criminally charged.

“I want them to be arrested and go to jail,” said Elizabeth Phangela whose younger brother Christopher also died at Precious Angels.

Former health MEC Qedani Mahlangu, former department head Dr Barney Selebano and former mental health director Dr Makgabo Manamela were identified as the key leaders behind the deadly plan.

SAPS and the National Prosecuting Authority (NPA) are working together to investigate 144 dockets, including a broad range of charges. Gauteng Community Safety MEC Sizakele Nkosi-Malobane has said the NPA is looking at opening 45 inquests, where a court would attempt to determine causes of death, but not one has been finalised.

“Only five detectives are working on the (inquests), and the police say that no finalisation date can be given at this stage,” said the DA's Jack Bloom. He said the NPA was still waiting on clinical reports, blood alcohol reports, and toxicology reports.

“We are failed once again by police incompetence which is delaying accountability and punishment in court for all those implicated in the monstrous acts that lead to the deaths of so many helpless people,” said Bloom.

Nxumalo said families are in the dark after the NPA failed to update them on the investigations, as promised five months ago. Some families are yet to receive post-mortem reports.

NPA spokesperson Phindi Louw-Mjonodwane said the cases are many and complicated.

“The process will take long because it involves a lot of people – remember there are more than 100 dockets,” she explained. She wasn't aware of the NPA's commitment to update the families.

Gauteng government spokesperson Thabo Masebe said the province has been working with SAPS since the saga began unfolding. “I don't think it will help for any of us to put them under pressure, but we also expect that they understand the seriousness of this matter.”

Moseneke awarded all families affected by the Esidimeni disaster R1-million in constitutional damages, R180,000 in general damages and R20,000 for funeral expenses for families of patients who died. The Gauteng government paid R159-million in compensation in June.

Legal Aid South Africa said on Wednesday that all its 67 clients, relatives of patients who survived, have been paid. Section27, representing 63 families of patients who died, has said all their clients have been paid.

The total compensation figure could increase as families who weren't a part of the arbitration but can prove they were affected can still come forward. Nxumalo has been fielding calls from families looking to claim compensation. “It never stops. My phone is forever ringing,” she said.

Phangela's elderly mother received the compensation and said she would disperse it throughout the family and also buy a tombstone for Christopher.

Nxumalo felt pressure to spend the money wisely. “It's a scary thing... Hopefully, you don't make a mess. Hopefully, you don't do the wrong thing.” She said a number of families were experiencing distant relatives trying to claim a share of the money.

The DA's Bloom wants Mahlangu, Selebano and Manamela to be held personally liable for some of the compensation costs. The law allows for multiple people to be held accountable for the apportionment of damages and Bloom argued that the three officials have been proven to be responsible.

Both Nxumalo and Phangela supported the call. Legal Aid SA's chief legal executive Patrick Hundermark said: “Government must take advice on whether they can hold anyone liable for what they had to pay in terms of the award.”

Masebe said the government is complying with recommendations from the ombudsman and arbitration, but forcing its former officials to pay some of the costs would be equivalent to starting the processes afresh.

“We commit that we will do everything to comply with the award and fully implement the recommendations of the health ombudsman. Any new thing would just be bringing about challenges,” he said.

Implicated health officials have been reported to their professional bodies, which are expected to impose sanctions to prevent them from causing further damage.

Masebe said the government was still consulting stakeholders about erecting a monument, as ordered by Moseneke, to honour the 144 patients who died. A recovery plan to address the systemic failures in the provincial Department of Health is also in the works.

The department has made a number of key changes to avoid another disaster on the scale of Life Esidimeni, but its past failures continue to haunt the system.

In a parliamentary reply last week, the department said 20 patients who were moved from Life Esidimeni are still missing. It said they had not been found because some relatives' contact details were out of date or the facilities patients were sent to were slow in responding.

“The Esidimeni nightmare, which was caused by arrogance, cruelty and corruption, will not be over until every patient is accounted for and the perpetrators are punished in court,” said Bloom.

Nxumalo is trying to adjust as her Esidimeni work slows. She believes people still don't understand.

“It wasn't a thing that we lost. It was a person, someone we lived with and someone we loved.” DM