Justice for Esidimeni: DA calls for Judicial Commission of Inquiry

16 February 2017

Today we seek justice for the more than 100 South Africans - sons and daughters of this country - who died tragic and avoidable deaths at the hands of an uncaring, dysfunctional and unresponsive ANC government in Gauteng.

Less than one year ago, the Gauteng Health Department took a reckless decision to cancel its long-running contract with Life Healthcare Esidimeni  - which looked after over 2000 mentally ill patients – without securing adequate alternative care facilities for these individuals.

These helpless patients were then chaotically transferred to 27 NGOs – all operating without legal licenses – and many without the capacity and professional staff to handle the patients. Our Constitution, in Section 12(1)(e), gives everyone the inalienable right to not to be treated in a cruel, inhumane or degrading way. Regrettably, that is the apt description of how these patients were treated: cruel, inhumane and degrading.

This resulted in the tragic death of over 100 mentally ill patients due to a litany of judgment errors by the ANC government.

Sadly, it could have been avoided, which is what makes it even more heart-breaking. As far back as 2015, DA Gauteng Shadow MEC for Health, Jack Bloom MPL, warned the Gauteng Provincial Government that a crisis was looming, but he was ignored. Instead, the ANC government stood by its decision and swiftly cancelled the contract with Life Healthcare Esidimeni - discarding thousands of human beings – and putting into motion this calamity.

This will remain a stain on the conscience of government for a long time to come. As the Democratic Alliance (DA), we stand in solidarity with the family and loved ones of the deceased, and maintain that it is absolutely critical that these events are thoroughly investigated, so as to avoid a repeat of such an occurance.

I have therefore written to President Jacob Zuma, requesting that he establish a Judicial Commission of Inquiry in terms of section 84(2)(f) of the Constitution, to rigorously investigate what exactly transpired, how it was allowed to transpire, what national governments role was – and ought to have been, and to identify the shortcoming of the current system so as to avoid a catastrophe like this from occurring again. Moreover, the terms of reference of the Commission ought to be wide, so as to include an investigation into the treatment of mental health patients across the country.

Notwithstanding the Health Ombudsman's investigation and report released earlier this month, further investigation is required. The Health Ombudsman’s report did not go far and deep enough.

In fact, since the Health Ombudsman’s report was released, many developments have come to light that, which require a commission with a wide scope in order to cover every conceivable aspect in relation to the deaths that occurred. These include:

- The final figure of 94 deaths declared by the Ombudsman in his report is preliminary and inconclusive. Yesterday, the Health Ombudsman, Prof. Malegapuru Makgoba, informed the National Assembly’s Health Portfolio Committee that the number of deaths has increased to “above 100”. This number is set to increase;

- It now transpires that several NGOs began the process of obtaining a court interdict to stop the transfer of patients from Esidimeni in December 2015, but were persuaded to abandon this legal action by the Director-General of the National Health Department, Ms Malebona Matsoso. The D-G persuaded the NGOs to abandon their court action in exchange for a route that took them nowhere;

- The fact that the Gauteng Health Department underspent R24 454 000 of its mental healthcare in the 2015/16 financial year, while it saved money by not renewing the contract with Life Esidimeni;

- Cluster Manager for Non-Communicable Diseases in the National Health Department, Prof. Mervyn Freeman, apparently never briefed the Minister on the matter and a critical report was apparently never seen by him. We need to establish the reason for the profound failure of communication;

- The Ombudsman never got to the bottom of why former Health MEC Qedani did what she did – including whether there were any connections between her and the NGO directors. We must confirm the absence of any underhand dealings or corrupt practices; and

- According to email chains, Minister Motosoaledi knew about the plan to move patients as early as March 2016, and seemingly failed to intervene. He blames poor data and no surveillance in his own department, a self-inflicted wound;

- Many questions remain unanswered, and in the name justice for the deceased and their loved ones, we implore the President to establish such a Judicial Commission of Inquiry without delay.

The lives of those who died at the hands of government in this tragedy are of no less value than the victims of the Marikana Massacre. If Marikana warranted a Judicial Commission of Inquiry – which it rightly did - then Esidimeni does too.

Later this afternoon, the President is set to deliver his reply to the State of the Nation debate in Parliament. I call on the President to provide an indication to the country and to Parliament as to whether he will heed this call, or whether some lives matter less to his ANC government.

The Esidimeni tragedy will forever be remembered as the one of the most horrendous and systematic failures of government to protect the most vulnerable members in our society. A shameful violation of fundamental human rights by an uncaring and indifferent ANC government.

As the Democratic Alliance (DA), we cannot sit on our hands while the whole truth has yet to be exposed, and real justice has yet to be served. For this to happen, a Judicial Commission of Inquiry is very much required.

Issued by Mmusi Maimane, Leader of the Democratic Alliance, 17 February 2017