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The South African Human Rights Commission apologised for not doing enough to intervene in the Life Esidimeni saga, before more than 100 psychiatric patients died while in the care of non-governmental organisations in Gauteng.
The commission admitted to making mistakes and acknowledged that in hindsight it could have done more to intervene, especially since complaints were laid with it before the transfer of patients.
“We did as a commission make mistakes here and there; there were blind spots, there were things that we could have done better,” said Bongani Majola, the newly appointed chairperson of the commission.
The commission appeared before Parliament’s justice and constitutional development committee to account for its role. Committee chairperson Mathole Motshekga said briefing was important because when the justice committee was interviewing candidates to serve as commissioners in the human rights commission it received objections to the consideration of some of the commissioners because it was alleged that they had been negligent in handling the situation at Esidimeni.
“We insisted that we cannot disqualify candidates on the basis of untested allegations. But during the interviews, it became very clear that in the commission, there was no collective responsibility. Each of the past commissioners who were interviewed, one would say ‘I don’t know ask so and so’ and the so and so would say ‘I don’t know’ and the other one would say ‘it was not my responsibility’ and we found that very disturbing’.”
Motshekga said they had expected that the commissioners would act as a collective and take collective responsibility.
Not only did commissioners not take “collective responsibility” but the full extent of the tragedy was not disclosed to MPs which, Motshekga said, suggested “a kind of a cover up” a situation that could not be tolerated from a Chapter Nine institution.
But the commissioners who appeared before Parliament were not there during the complaints process. They were appointed in December and only assumed office on January 3 2017. They said their presentation was based on the records they found in their office.
Former chairperson of the commission, Lourence Mushwana, did not attend the meeting although he was invited by the parliamentary committee.
Majola gave the committee assurance that in future it would be involved in securing proper redress for families of the deceased and in their healing process, but also to scrutinise the conditions of and human and constitutional rights of mentally ill patients in other provinces.
Majola outlined the role the commission’s played since receiving a complaint on March 15 2016 from an non-governmental organisation [Ubuntu Centre], which was concerned about the transfer of mentally-ill patients from Esidimeni Hospital to NGOs, saying this would violate their rights to dignity and many other rights.
The commission accepted and assessed the complaint to determine what to do and we found that it was necessary to investigate. The matter had been a subject of two urgent court interdicts in the South Gauteng division of the high court.
“We established through our investigation that an order had been sought to interdict the Gauteng department of health and Esidimeni from discharging the patients and sending them to the community centres.
“Coincidently on March 15, the date we received the first complaint, the court dismissed the application ... and thereby allowed the department to continue discharging of patients and placing them with the NGOs,” said Majola.
Hands were tied
“The interdict, having been rejected by the court, it was clear to us that the file should remain open and that we should then simply just monitor. There was not much else that we could do considering the powers that the commission has,” he said while explaining the commission’s failure to act.
Majola said the commission had informed its Gauteng office. This had led to speaking to the roleplayers who were involved in the litigation and during the talks. The Gauteng health department had indicated that there were no users [patients] who were missing.
“We were given assurance that everything was done, that the department had established a multi-disciplinary monitoring committee which was monitoring patients twice a week, every week,” he said.
He said when the commission did an inspection of one of the NGOs, they had found that it was abandoned.
“We wanted to know whether they had inspected the NGOs where they had placed these patients and whether they had taken any action where the level of care was not up to required standards. They were not direct, they simply said that they would have not hesitated to remove patients had an NGO not been up to standard,” he said.
Majola said the commission monitored the situation “through correspondence and liaising with the department, Section 27 and others” as it did not have the capacity to go out on its own to the NGOs to monitor what was happening.
He said the commission did not have the capacity in terms of human resources and the skills required and with all the assurances they were getting from the provincial health department, they did not have a reason to suspect that the rights of the patients would be violated to the extent that so many of them died.
Motshekga complimented the commission, saying that from the presentation it appears that they were “on top of the situation and did what was possible within their powers”.
MPs responses
Democratic Alliance MP Glynnis Breytenbach retorted, to the commission: “You were on top of nothing at all.”
She questioned why the commission didn’t act after receiving several complaints in March 2016 warning of “a pending disaster” nor when the first deaths were reported in the media or when they found an abandoned NGO.
“What expertise do you need to see that a person is dying?
“What did you do beyond listening to the Gauteng health department which was obviously feeding you its lies?”
Breytenbach’s questions raised a number of objections from Motshekga and other ANC MPs in the committee who warned that the families did not want the death to be politicised.
Economic Freedom Fighters MP Sam Matiase said the deaths of psychiatric patients at the hands of the state amounted to criminality and “conspired genocide”.
“It’s of genocidal proportions...” he said about the tragedy.
Matiase said trust had been broken between the commission and MPs, due to “the commission’s failure and negligence”
“The commission has shown scant regard for the complaints laid to it,” he said.
ANC MPs objected to the line of questioning by the opposition MPs, warning against “politicising the matter”.
Bongani Bongo [ANC] said it was clear that human rights had been violated and wanted to know about redress and assistance for bereaved families.
Bongo urged the commission to create awareness about the rights of mentally ill people and to also look into other provinces.
Another ANC MP Charlotte Pilane-Majake complimented the commission for the manner in which it was handling the matter, saying it showed leadership.
“You are brand new in office and you had to handle such a contentious issue.”
Pilane-Majake said the tragedy had led to an impression in the international community that South Africa was not a caring society.
“We are not an uncaring country. We have never been perfect. A mistake has happened, how do we correct the mistake without pointing fingers?” she said.
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