REPORT IN TERMS OF SECTION 182(1)(b) OF THE CONSTITUTION OF THE

REPUBLIC OF SOUTH AFRICA, 1996 AND SECTION 8(1) OF THE PUBLIC PROTECTOR ACT, 1994

REPORT No: 59 of 2022/23 ISBN No: 978-1-991244-11-6

INVESTIGATION INTO ALLEGATIONS OF MALADMINISTRATION AND IMPROPER CONDUCT BY OFFICIALS OF THE GAUTENG DEPARTMENT OF HEALTH, THE GAUTENG DEPARTMENT OF SOCIAL DEVELOPMENT, THE SOUTH AFRICAN POLICE SERVICE, THE CITY OF EKURHULENI METROPOLITAN MUNICIPALITY AND THE GAUTENG PROVINCIAL GOVERNMENT, IN THE MATTER OF MS MOLIEHI MARIA SITHOLE

LIST OF ACRONYMS

CHC	Community Health Centre
Complainant	Mr Teboho Edward Tsotetsi
Constitution	The Constitution of the Republic of South Africa, 1996
Chloorkop SAPS	Chloorkop Police Station
GDSD	Gauteng Department of Social Development
GDOH	Gauteng Department of Health
GPG	Gauteng Provincial Government
COE	The City of Ekurhuleni Metropolitan Municipality
CEO	Chief Executive Officer
Rabasotho SAPS	Rabasotho Police Station
Tembisa SAPS	Tembisa Police Station
Tembisa Hospital	Tembisa Provincial Tertiary Hospital
MHCA	Mental Health Care Act ,17 of 2002
Public Protector Act	Public Protector Act, 23 of 1994
The Public Protector	Public Protector of the Republic of South Africa
SAPS	South African Police Service
Steve Biko Hospital	Steve Biko Academic Hospital

1. INTRODUCTION

1.1. This is a closing report of the Public Protector issued in terms of section 182(1)(b) of the Constitution of the Republic of South Africa, 1996 (the Constitution), section 8(1) of the Public Protector Act, 1994 (the Public Protector Act) and Rule 40(b) of the Rules Relating to Investigations by the Public Protector and Matters Incidental thereto, 2018 as amended1 (the Public Protector Rules) as promulgated under section 7(11) of the Public Protector Act.

1.2. The report is submitted to the following recipients in terms of sections 8(1) and (3) of the Public Protector Act:

1.2.1 The Premier of the Gauteng Provincial Government, Mr Panyaza Lesufi;

1.2.2 The Head of Department for the Gauteng Department of Health, Dr Nomonde Nolutshungu;

1.2.3 The Head of Department for the Gauteng Department of Social Development, Ms Thembeni Mhlongo;

1.2.4 The City Manager for the City of Ekurhuleni Metropolitan Municipality, Dr Imogen Mashazi;

1.2.5 The Gauteng Provincial Commissioner for the South African Police Service, Major General Tommy Mthombeni; and

1.2.6 Mr Tebogo Edward Tsotetsi, and Ms Moliehi Maria Sithole (the Complainants).

1.3 The report relates to an investigation into allegations of maladministration and improper conduct by the Gauteng Department of Health (GDOH), the Gauteng Department of Social Development (GDSD), the South African Police Service (SAPS), the City of Ekurhuleni Metropolitan Municipality (CoE) and the Gauteng Provincial Government (GPG), in the matter of Ms Moliehi Maria Sithole (Ms Sithole).

2. THE COMPLAINT

2.1. The complaint was lodged with the Public Protector by Mr Tebogo Edward Tsotetsi (the Complainant) on 22 June 2021.

2.2. In essence, the Complainant alleged, inter alia, the following:

2.2.1. That on Monday 07 June 2021 his customary wife, Ms Moliehi Maria Sithole (Ms Sithole) sent him a text message informing him that she had given birth to ten babies (“decuplets”). He immediately informed one Mr Piet Rampedi (Mr Rampedi), the editor of the Pretoria News who published the story of the birth of their decuplets on 07 June 2021.

2.2.2. Ms Sithole telephonically contacted the Gauteng Department of Social Development (GDSD) on 07 June 2021 to report the birth of the decuplets and that she is still in hospital. As a result, the GDSD issued a media statement wherein they confirmed the birth of the decuplets.

2.2.3. He could not pay Ms Sithole a visit at the hospital since she told him that visitors were not allowed at the hospital due to Covid 19 restrictions and also that the babies were kept in incubators in the Intensive Care Unit (ICU) at the Steve Biko Academic Hospital (Steve Biko Hospital).

2.2.4. On or about 09 June 2021, he became aware of the media reports that the government of South Africa, through its various Departments including the Steve Biko Hospital Chief Executive Officer (CEO), Dr Mathabo Mathebula (Dr Mathebula) and a representative from the City of Ekurhuleni Metropolitan Municipality (CoE), announced on various public media platforms that they could not trace any records of Ms Sithole’s admission and actual delivery at any of its public and private hospitals in South Africa, and also that there was no record of ten babies being born at any hospital in the country.

2.2.5. On or about Thursday 10 June 2021, one Ms Lindiwe Khonjelwayo (Ms Khonjelwayo), an official from the office of the Mayor of the CoE visited his family home to inquire about the birth of the decuplets and the whereabouts of Ms Sithole. Members of his family told Ms Khonjelwayo that they did not have details of the hospital where Ms Sithole and the decuplets were admitted and that the Complainant had not been able to visit his wife and the decuplets due to Covid 19 restrictions. Ms Khonjelwayo then instructed members of his family to approach a local police station to report his wife as a missing person.

2.2.6. The Complainant’s biological daughter, Ms Lerato Tsotetsi then acted on the instructions of Ms Khonjelwayo and caused a missing person inquiry case to be opened at the Tembisa Police Station (Tembisa SAPS). He was advised that Ms Khonjelwayo from the Office of the Mayor acted improperly by instructing members of his family to report his wife as a missing person.

2.2.7. On the afternoon of 10 June 2021, Captain Selcke (Capt Selcke), from the Tembisa SAPS, contacted the Complainant telephonically requesting that he furnish the SAPS with his statement regarding the missing person inquiry as he was the last person to have been seen with Ms Sithole. On Saturday 12 June 2021, the Complainant submitted an affidavit to Capt Selcke. The Complainant then told Ms Sithole to present herself to the Tembisa SAPS to enable them to close the missing person inquiry case.

2.2.8. On 12 June 2021, Ms Mokgethwa Makate (Ms Makate), a Social Worker from the GDSD, consulted with Ms Sithole in the presence of one Ms Nomgqibelo Pauline Malinga (Ms Malinga) at latter’s house in Tembisa and in doing so she infringed Ms Sithole’s privacy and confidentiality.

2.2.9. Ms Makate removed her other children on Tuesday 15 June 2021 to an undisclosed place of safety. The GDSD also instructed the school principal of the school where Ms Sithole’s children attend school, not to communicate with her Attorney, Ms Refiloe Mokoena (Ms Mokoena), from Refiloe Mokoena Attorneys.

2.2.10. On Thursday 17 June 2021, he received a call from Ms Sithole informing him that she had been apprehended by the Chloorkop Police Officials in relation to the missing person inquiry.

2.2.11. In the evening of 17 June 2021, he was called by Ms Mokoena, who informed him that the GDSD had taken Ms Sithole to Tembisa Provincial Tertiary Hospital (Tembisa Hospital) for admission as an involuntary mental health care user and that she had instructed her to move an urgent court application for her release from Tembisa Hospital since she was admitted against her will.

2.2.12. That immediately after her admission, Tembisa Hospital denied him access to her. Ms Sithole was denied access to legal representation, in that Ms Mokoena was refused access to her as well. He was advised that Tembisa Hospital contravened the provisions of the Mental Health Care Act2.

2.2.13. He was advised that the process followed for the admission of Ms Sithole at the Tembisa mental care institution was not in compliance with the provisions of the Mental Health Care Act.

2.2.14. On 23 June 2021, the Gauteng Provincial Government (GPG) issued a media statement saying that a medical examination carried out at Tembisa Hospital had found that Ms Sithole had not given birth and has not been pregnant ‘in recent times’. These findings came after Ms Sithole was taken in for observation at Tembisa Hospital. He was advised that the actions of Tembisa Hospital and the doctors who examined Ms Sithole and informed the GPG and the public of their findings contravened the provisions of the Mental Health Care Act.

2.2.15. Ms Makate gave false and incomplete information in sections A, C, E and F of the Mental Health Care Act (MHCA) 04 form during the admission of Ms Sithole as an involuntary mental health care user at Tembisa Hospital.

2.3 On 26 July 2021, the Public Protector received a supplementary complaint from Ms Sithole written in “Sesotho” and translated to English. In her complaint Ms Sithole alleged, inter alia, the following:

2.3.1 That in week 29 of her pregnancy she was admitted at Steve Biko Hospital where she was examined by Dr Ocadinngwa who discovered that she is pregnant with 10 babies. She also visited Netcare Sunninghill, Carstenhof and Mediclinic Medforum Hospitals during her pregnancy for maternity check-ups. Ms Sithole alleged that she gave birth on 07 June 2021 at around 07h00 at Steve Biko Hospital in the presence of Dr Ocadinngwa and other doctors. She only learnt from the nurses that she gave birth to 10 babies, 7 boys and 3 girls but she did not see the babies to date as she passed out during delivery.

2.3.2 On Thursday 17 June 2021 at approximately 06h00 she was apprehended by the Chloorkop Police Officials at her sister’s place in relation to the missing person inquiry opened at the Tembisa SAPS. Upon arrival at Chloorkop Police Station (Chloorkop SAPS), a meeting was held between herself, Ms Mokoena, officials from the GDSD and the Police Officials from both the Chloorkop and Tembisa SAPS. After the meeting she was taken to the Tembisa Hospital for admission as an involuntary mental health care user by the GDSD and the Police Officials.

2.3.3 Upon arrival at Tembisa Hospital she was examined by different doctors and admitted for a period of 14 days, before being transferred to the Weskoppies Psychiatric Hospital for admission as an involuntary mental health care user.

2.3.4 Ms Sithole further alleged that Ms Makate was her Social Worker for a period of 2 to 3 days in 2018 and therefore, she does not know her well. Ms Makate removed her six years old twins to an undisclosed place of safety without her knowledge and consent.

3. POWERS AND JURISDICTION OF THE PUBLIC PROTECTOR

3.1 The investigation was conducted in terms of section 182(1) of the Constitution of the Republic of South Africa, 1996 (the Constitution) which gives the Public Protector the powers to investigate alleged or suspected improper or prejudicial conduct in state affairs, to report on that conduct and to take appropriate remedial action; and in terms of section 6(4) of the Public Protector Act 23 of 1994 (Public Protector Act), which regulates the manner in which the powers conferred by section 182 of the Constitution may be exercised in respect of government at any level.

3.2 The GDOH, GDSD, CoE, SAPS and GPG are the organs of state and their conduct amounts to conduct in state affairs, and as a result, the Public Protector is satisfied that the complaint falls within her competency to conduct an investigation as envisaged in section 182(1)(a) of the Constitution and sections 6(4) of the Act.

4 ISSUES IDENTIFIED FOR INVESTIGATION

4.1 Based on the analysis of the complaint and the allegations contained therein the following issues were identified and investigated:

4.1.1. Whether Tembisa Hospital records confirm that Ms Sithole gave birth to decuplets at Steve Biko Hospital and was refused access to her babies by hospital officials and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and section 6(4)(a)(i) of the Public Protector Act;

4.1.2. Whether the officials of Tembisa Hospital acted improperly in the involuntary admission of Ms Sithole for medical observation and divulged her medical information to the Gauteng Provincial Government (GPG) without her consent, and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and maladministration in terms of section 6(4)(a)(i) of the Public Protector Act.

4.1.3. Whether Gauteng Department of Social Development (GDSD) acted improperly in the removal of Ms Sithole’s twin children for placement at a place of safety and in interviewing her in the presence of her friend, Ms Malinga, and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and maladministration in terms of section 6(4)(a)(i) of the Public Protector Act.

4.1.4. Whether Ms Lindiwe Khonjelwayo of City of Ekurhuleni Metropolitan Municipality (CoE) improperly instructed members of the Complainant’s family to report Ms Sithole missing to the SAPS in order to facilitate her involuntary hospital admission, and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and maladministration in terms of section 6(4)(a)(i) of the Public Protector Act.

4.1.5. Whether the South African Police Services (SAPS) unlawfully arrested and detained Ms Sithole in relation to a missing person inquiry and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and maladministration in terms of section 6(4)(a)(i) of the Public Protector Act.

4.1.6. Whether the Gauteng Provincial Government (GPG) unlawfully divulged Ms Sithole’s medical information to the media and to the public without her knowledge and consent and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and section 6(4)(a)(i) of the Public Protector Act.

4.2 The Public Protector has concluded the investigation and based on the information and evidence obtained during the course thereof, the Public Protector is now in a position to make findings.

5 THE INVESTIGATION

5.1 Methodology

5.1.1 The investigation was conducted in terms of section 182 of the Constitution read with sections 6 and 7 of the Public Protector Act.

5.2 Approach to the investigation

5.2.1 The approach to the investigation included the exchange of documents, analysis of the relevant documents and consideration and application of the relevant laws, regulatory framework and prescripts.

5.2.2 The investigation was approached using an enquiry process that seeks to determine:

(a) What happened?

(b) What should have happened?

(c) Is there a discrepancy between what happened and what should have happened and does that deviation amount to maladministration, abuse of power or other improper conduct?

(d) In the event of a violation, what would it take to remedy the wrong occasioned by the said improper conduct and maladministration?

5.2.3 The question regarding what happened is resolved through a factual enquiry relying on the evidence provided by the parties and independently sourced during the investigation. In this particular case, the factual enquiry principally focused on whether Ms Sithole gave birth to decuplets at Steve Biko Hospital and was refused access to her babies and if so, whether the subsequent conduct of the hospital officials and relevant state institutions involved in handling the matter constitutes improper conduct or a violation of the Constitution and the applicable legal prescripts.

5.2.4 The enquiry regarding what should have happened, focuses on the law or rules that regulate the standards that should have been met by the aforementioned state institutions, namely GDOH, GDSD,SAPS, CoE and GPG to prevent the violation of the Constitution and/or the applicable legal prescripts.

5.2.5 The enquiry regarding the remedy or remedial action seeks to explore options for redressing the consequences of improper conduct and maladministration; what it would take to remedy the wrong or, where appropriate, to place the Complainant as close as possible to where he would have been, but for the improper conduct or maladministration.

5.3 The investigation process

5.3.1 The approach to the investigation included an exchange of documentation between the Public Protector and the GDOH, GDSD, SAPS, CoE and the GPG.

5.3.2 All relevant documents and correspondence were obtained and analysed and relevant laws, policies and related prescripts were considered and applied throughout the investigation.

5.4 Key sources of Information

5.4.1. Documents and email correspondence

5.4.1.1 Complaint affidavit from the Complainant dated 14 July 2021;

5.4.1.2 Undated complaint affidavit from Ms Sithole;

5.4.1.3 Request of information letter dated 04 August 2021 from the Investigation Team addressed to the HoD of GDSD, Ms Mhlongo;

5.4.1.4 Request of information letter dated 04 August 2021 from the Investigation Team addressed to the Acting Gauteng Provincial Commissioner of SAPS, Maj Gen Mthombeni;

5.4.1.5 Request of information letter dated 04 August 2021 from the Investigation Team addressed to the City Manager of Ekurhuleni; Dr Mashazi;

5.4.1.6 Request of information letter dated 04 August 2021from the Investigation Team addressed to the Acting HoD of GDoH, Dr Zungu;

5.4.1.7 A response letter dated 25 August 2021 from the Acting HoD of GDoH, Dr Zungu;

5.4.1.8 A Subpoena Notice dated 16 November 2021 from the Investigation Team addressed to the Acting HoD of GDoH, Dr Zungu;

5.4.1.9 A response letter dated 30 November 2021 from the Acting HoD of GDoH, Dr Zungu;

5.4.1.10 An affidavit dated 09 November 2021 from the GDoH Social Worker Manager, Ms Hlekulani Lauretta Sono;

5.4.1.11 Copy of a report dated 30 November 2021 from the Acting Chief Director: Municipality Health Services Mr Simon Choma addressed to Dr Zungu with the subject matter report on Ms Sithole’s medical examination at Esangweni;

5.4.1.12 Further information email dated 17 December 2021 from the Complainant;

5.4.1.13 Copies of the Steve Biko Hospital Nominal Admission Register and Medico Report dated 04 and 07 June 2021 respectively;

5.4.1.14 Copy of the Tembisa Hospital Medical Report for Ms Sithole dated 18 June 2021;

5.4.1.15 A response letter dated 05 January 2021 from the Netcare Sunninghill Hospital General Manager: Mr Rodney Naicker;

5.4.1.16 A response email dated 10 January 2021 from Legal Advisor of Mediclinic Southern Africa: Elviara Coetzee;

5.4.1.17 A response letter dated 13 December 2021 from Mr Rodney Naicker of Sunninghill Hospital;

5.4.1.18 An affidavit dated 07 January 2022 from the Assistant Manager: Nursing at Steve Biko Hospital, Mr Thabang Letsebe;

5.4.1.19 An email response dated 13 December 2021 from the Regional Manager: Pick ‘n Pay, Woodmead, Mr Scott Paterson;

5.4.1.20 An email response dated 09 February 2021 from Midrand Clinic addressed to the Health Practitioner: Pick ‘n Pay: Sister Joyce Mtule;

5.4.1.21 Copy of a medical certificate dated 03 February 2021 from Dr Unben Pillay and Associates submitted by Ms Sithole to Pick ‘n Pay;

5.4.1.22 A response letter dated 24 August 2021 from the Chief Executive Officer of Tembisa Hospital: Dr Mthunzi;

5.4.1.23 Copies of form 1 to 11 dated 18 June 2021 with regard to the admission of Ms Sithole at Tembisa Hospital as an involuntary mental health care user;

5.4.1.24 An affidavit dated 15 August 2021 from the Head of Unit: Psychiatry (GDoH), Prof Kalaivani Naidu;

5.4.1.25 Copy of the Medical report dated 18 June 2021on Ms Sithole from Prof Naidu;

5.4.1.26 A response letter dated 17 September 2021 from Ms Phumla Nkosi the Regional Director of the GDSD: Ekurhuleni Municipality;

5.4.1.27 An affidavit dated 19 October 2022 from Ms Makate;

5.4.1.28 A supplementary affidavit dated 19 October 2022 from Ms Makate;

5.4.1.29 Copy of Ms Sithole’s social work report dated 04 December 2017 compiled and signed by Ms Makate;

5.4.1.30 Copy of the Children’s Court Order in terms of section 155(8) of the Children’s Act dated 16 September 2021;

5.4.1.31 An email response dated 31 August 2021 from Ms Khonjelwayo;

5.4.1.32 Copy of the SAPS 545 Report dated 09 September 2021 in terms of National Instruction with Complaint Reference Number: 145/08/2021 from Lieutenant Colonel R Pillay of the SAPS Provincial Inspectorate: Gauteng Complaints Investigation;

5.4.1.33 A sworn affidavit deposed by Ms Mofokeng;

5.4.1.34 A response letter dated 13 August 2022 from the Acting Director General in the Office of the Premier, Mr Mduduzi Mbada;

5.4.1.35 Copy of the undated Media Statement issued by the GPG with subject matter: “Statement of the Gauteng Government on the so-called “Decuplets”; and

5.4.1.36 Notice in terms of Rule 41(1) of the Public Protector Rules, as amended, served on the Complainants dated 13 December 2022.

5.4.2. Legislation and other prescripts

5.4.2.1 The Constitution of the Republic of South Africa, 1996;

5.4.2.2 The Public Protector Act, 23 of 1994;

5.4.2.3 The National Health Act, 61 of 2004;

5.4.2.4 The Mental Health Care Act, 17 of 2002; and

5.4.2.5 The National Department of Health Guidelines for Maternity Care in South Africa, 2015.

5.4.3 Notice issued in terms of Rule 41(1) of the Rules

5.4.3.1 On 13 December 2022, a Notice in terms of Rule 41(1) of the Rules Relating to Investigations by the Public Protector and Matters Incidental Thereto, 2018 (the Public Protector Rules) as amended, was issued to the Complainants to provide them with an opportunity to make representations in connection with the intended closure of the complaint. The Complainants did not provide a responses to the Notice by 26 December 2022.

6. THE DETERMINATION OF ISSUES IN RELATION TO THE EVIDENCE OBTAINED AND CONCLUSIONS MADE WITH REGARD TO THE APPLICABLE LAWS AND PRESCRIPTS

6.1. Whether Tembisa Hospital records confirm that Ms Sithole gave birth to decuplets at Steve Biko Hospital and was refused access to her babies by hospital officials and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and section 6(4)(a)(ii) of the Public Protector Act

Common cause issues

6.1.1. There are no issues that are common cause.

Issue in dispute

6.1.2. The issue for the Public Protector’s determination is whether Ms Sithole gave birth to decuplets at Steve Biko Hospital and was refused access to her babies by the hospital officials.

Complainant’s version

6.1.3. The Complainant submitted that on Monday, 07 June 2021, Ms Sithole sent him a text message informing him that she had given birth to decuplets. He immediately informed Mr Rampedi, at Pretoria News who published a story of the birth.

6.1.4. Ms Sithole telephonically contacted the GDSD on 07 June 2021, to report the birth of the decuplets and that she is still in hospital. As a result, the GDSD issued a media statement wherein they confirmed the birth of the decuplets.

6.1.5. The Complainant could not visit Ms Sithole at the hospital as she told him that visitors were not allowed at the hospital due to Covid 19 restrictions and also that the babies were kept in incubators in the Intensive Care Unit (ICU).

6.1.6. The Complainant further submitted that on or about 09 June 2021, he became aware of the media reports that the government of South Africa, through its various Departments including the Steve Biko Hospital CEO, Dr Mathebula and a representative from the CoE, announced on various public media platforms that they could not trace any records of Ms Sithole’s admission and actual delivery at any of its public and private hospitals in South Africa.

6.1.7. Ms Sithole submitted that in week 29 of her pregnancy, she was admitted at Steve Biko Hospital where she was examined by Dr Ocadinngwa who discovered that she is pregnant with decuplets. She also visited Netcare Sunninghill, Carstenhof and Mediclinic Medforum Hospitals during her pregnancy for maternity check-ups. Ms Sithole alleged that she gave birth on 07 June 2021 at around 07h00 at Steve Biko Hospital in the presence of Dr Ocadinngwa and other doctors. She only learnt from the nurses that she gave birth to the (10) babies, seven (7) boys and three (3) girls, but she did not see the babies to date as she lost consciousness during delivery. Submission by Dr Sibongile Zungu: Acting HOD, Gauteng Department of Health

6.1.8. An allegations letter dated 04 August 2021, was sent to the Acting Head of Department of the GDoH: Dr Sibongile Zungu (Dr Zungu), requesting that she provide a comprehensive response and relevant supporting documentation to the allegations as raised by the Complainant.

6.1.9. On 27 August 2021, the Public Protector received the response letter dated 25 August 2021 from Dr Zungu, wherein she indicated, among others, that the facts and the legal issues that the Public Protector has been requested to investigate are a subject of pending litigation before the Johannesburg High Court, under case number 2021/31557.

6.1.10. Subsequent to the above response by Dr Zungu, on 20 September 2021, the Public Protector Investigation Team (Investigation Team), made an inquiry with the Registrar of the Johannesburg High Court, regarding the status of the case. The Registrar of the High Court advised that the application was struck off the roll on 09 July 2021, for lack of urgency and non-compliance with the Practice Directives. It was also found that no further action was made by the applicant in the matter namely, Ms Mokoena. Upon further enquiry, Ms Mokoena informed the Public Protector Investigation Team that the application before the High Court will not be re- enrolled, considering that Ms Sithole has been discharged from the Weskoppies Psychiatric Hospital.

6.1.11. A subpoena notice dated 16 November 2021 was sent to Dr Zungu by the Public Protector to provide a response into the allegations raised by the Complainant and to furnish relevant supporting documents to expedite the investigation.

6.1.12. A response dated 30 November 2021 and supporting documents was submitted by Dr Zungu and she stated the following:

6.1.12.1 That, Steve Biko Hospital does not have a file for admission and medical reports of Ms Sithole registered under file number 0103402995.23;

6.1.12.2 That, there is no Dr Ocadinngwa employed at Steve Biko Hospital and that in the absence of their surnames, the hospital is unable to confirm whether persons referred to as, Sister Precious, Sister Zodwa, Sister Dineo and Sister Dorcas are employed at Steve Biko Hospital4;

6.1.12.3 That, there is neither a clinic card nor scans for maternity which records a pregnancy, as there was never such a visit to the Steve Biko Hospital by Ms Sithole. She asserted that clinic appointment card would be in the possession of the patient and not with the hospital. The only records/information available at the Steve Biko Hospital is that of Ms Sithole’s twins, who were born during 2014;

6.1.12.4 That, Mr Thabang Letsebe is an Assistant Manager: Nursing Services at Steve Biko Hospital and not Steve Biko Hospital Mother’s Lodge Facilities; and

6.1.12.5 Furthermore, that in relation to the CCTV camera footage, the footage is kept for up to twenty-five (25) days and is therefore no longer available.

Submission by Mr Thabang Letsebe: Assistant Nursing Manager, Steve Biko Hospital

6.1.13. Dr Zungu, in her response to the Public Protector further submitted the affidavit of Mr Thabang Letsebe (Mr Thabang Letsebe), dated 07 January 2022.

6.1.14. Mr Thabang Letsebe provided an account of his interactions with Ms Sithole as follows:

“I was on duty at the Patients Care Office on the night of 13 June 2021. At 18h55, Professional Nurse Sebopela from ward 8.8B (Neonatal ward) phoned the office and reported that the security officer brought a woman Ms Gosiame Sithole who claims to be the mother to Tembisa 10 (decuplets). According to Sr Sebopela the woman says she is looking for the babies.

I asked Sr Sebopela to bring her to patients care office. On arrival in patients care office I interviewed her and she said she delivered at Louis Pasteur Hospital on the 7/6/2021, discharged on 10/06/2021, but babies were left at Louis Pasteur Hospital. According to Ms Gosiame Sithole they told her at Louis Pasteur Hospital that they are going to transfer the babies to Steve Biko Hospital.

She (Mrs Gosiame Sithole) alleges to have lodged at our Mother Lodgers’ facility from Thursday (10/06/2021) and only started to ask about the babies on Saturday night (18/06/2021). I called Louis Pasteur maternity and after checking, the nurse I spoke to said they knew nothing about the decuplets. I called her husband, Mr Tebogo Tsotetsi, phone rang unanswered, called her sister, Ms Ditshegoane, she confirmed that Mrs Gosiame is her younger sister and she is too secretive as they only learned through the media that she gave birth to decuplets. Ms Ditshegoane then arranged an UBER to fetch her home as Gosiame asked her to do so. She left about 20h40.

I followed her up to check is she is home and the sister confirmed. I advised Gosiame to come back on Monday 15/6/2021 to see the social worker as she alleged to be having social problems. She will report at Patient Care Office.

In the morning of Monday 15/6/2021 I called her to remind her to come back to the hospital to see the social worker. She agreed to come but never pitched.”(sic)

Submission by Mr Simon Choma: Acting Chief Director – Municipality Health Services (Esangweni Community Health Centre)

6.1.15. During a consultation meeting between the Investigation Team and Ms Sithole on 11 November 2021, Ms Sithole indicated that she had been attending her maternity check-ups at Esangweni Community Health Centre (CHC).

6.1.16. The Investigation Team is in possession of a report dated 30 November 2021 from the Acting Chief Director: Municipality Health Services Mr Simon Choma (Mr Choma), addressed to Dr Zungu with the subject matter: Report on Ms Sithole’s medical examination at Esangweni. The report confirmed that they had no record of Ms Sithole having attended maternity check-ups at their facility.

Further records received from Steve Biko Hospital

6.1.17. The Investigation Team is in possession of the Steve Biko Hospital Nominal Admission Register dated 04 June 2021 to 11 June 2021, which reflects that Ms Sithole was not admitted at the hospital during the period she alleges to have given birth.

6.1.18. Upon perusal of the Medico Report of Steve Biko Hospital dated 07 June 2021 to 10 June 2021, the Investigation Team noted that the details of Ms Sithole did not appear on the list of patients admitted by the hospital during that period.

6.1.19. Ms Sithole alleged that she recalls standing at the gate of ward 8.3B and finally leaving with two security guards to sleep at the lodge on Thursday. The Investigation Team was provided with a list of lodgers at Steve Biko Hospital by Dr Zungu dated 07 June 2021 to 10 June 2021, which did not reflect the details of Ms Sithole as a patient in that facility.

6.1.20. The Investigation Team is in possession of the Tembisa Hospital Clinical Obstetrician and Gynaecology Report of Ms Sithole dated 18 June 2021, wherein it was stated that, based on the clinical assessment and investigations by the hospital, the alleged recent pregnancy of Ms Sithole could not be confirmed. (Own emphasis)

Submission by Ms Nomgqibelo Pauline Malinga: Lifelong family friend to Ms Sithole

6.1.21. The Investigation Team interviewed Ms Pauline Malinga (Ms Malinga), in order to obtain her version of the events to establish the veracity of the allegations made by the Complainant and Ms Sithole.

6.1.22. In an affidavit dated 17 December 2021, Ms Malinga confirmed that on 07 June 2021, Ms Sithole called to inform her of the birth of her decuplets, three girls and seven boys at “Mediclinic Medforum” in Pretoria. She further stated that:

6.1.22.1 On 09 June 2021, her mother went to Mediclinic Medforum to check on Ms Sithole and to her surprise, the hospital told her that they did not have record of her.

6.1.23. On 10 June 2021, she went together with the social worker, Ms Makate to Mediclinic Medforum and again they were advised that the hospital had no record of Ms Sithole being at the hospital.

Submission by Mr Rodney Naicker: General Manager Netcare Sunninghill Hospital

6.1.24. On 10 December 2021, the Investigation Team wrote to Netcare Sunninghill Hospital in order to verify assertions made by Ms Sithole that she had attended maternity check-ups at the hospital during the course of her pregnancy.

6.1.25. According to the response letter dated 05 January 2021, submitted to the Public Protector by Mr Rodney Naicker (Mr Naicker), the General Manager at Netcare Sunninghill Hospital, he indicated that there is no record of Ms Moliehi Sithole in the hospital’s database. He further stated that, as a result of no record of admission as a patient, there is no patient record for the aforesaid individual.

6.1.26. In a subsequent letter from the Public Protector to Mr Naicker, the investigation Team enquired whether the doctors alleged to have attended to Ms Sithole worked at the Hospital. Mr Naicker responded through a letter dated 13 December 2021, stating that Dr Sebanyoni and Dr Roberto, do not practice at Netcare Sunninghill Hospital.

Submission by Ms Elvira Coetzee: Legal Advisor for Mediclinic Southern Africa

6.1.27. The Investigation Team consulted Mediclinic Southern Africa to verify whether Ms Sithole had ever been admitted to the facility as asserted by the Complainant and if she had at any point during the course of her alleged pregnancy attended medical check-ups at the facility.

6.1.28. In a response email dated 10 January 2021 from Ms Coetzee, she indicated that they had contacted Ms Sithole who advised them that her complaint was against Steve Biko Hospital. She further confirmed that they did not have record of Ms Sithole’s admission at the facility. She submitted that the doctors alleged to have treated Ms Sithole did not have any admission and/or treating privileges at their facility.

Submission by Ms Sithole’s former employer: Mr Scott Paterson, Regional Manager: Pick n Pay

6.1.29. During a consultation meeting between the Investigation Team and Ms Sithole on 11 November 2021, she indicated that she was employed by Pick ‘n Pay Woodmead. On 10 December 20201, the Investigation Team wrote to Pick n Pay in order to establish whether she was indeed employed at Pick n Pay, and if they had knowledge of her pregnancy.

6.1.30. On 13 December 2021, the Public Protector received an email from Pick n Pay Regional Manager: Mr Scott Paterson, wherein he confirmed that Ms Sithole was an employee of Pick n Pay, Woodmead, but had subsequently been dismissed for absconding.

6.1.31. Mr Paterson also stated that he was not under the belief that Ms Sithole was indeed pregnant as her stomach grew too fast from one week to the next and the medical certificates submitted gave him doubts. He submitted that the document that Ms Sithole brought had dates from her previous pregnancy where she had triplets and according to his recollection, the medical certificate she submitted had been altered and a number eight (08) was inserted in the amount of babies that she was expecting to deliver. According to Mr Paterson, a doctor would have known that octuplets is eight babies only, instead of writing number eight on the medical certificate.

6.1.32. The Public Protector is in possession of an email dated 09 February 2021 from Midrand Clinic addressed to the Health Practitioner Pick n Pay: Sister Joyce Mtule, indicating that the medical certificate submitted by Ms Sithole was fraudulent, as the patient did not have a file at the practice and was not seen on the date indicated on the medical certificate. Sister Joyce further stated that, the stationery and stamp were also not that of the practice. The Public Protector was placed in possession of the above mentioned medical certificate dated 03 February 2021.

Application of relevant law and prescripts

The Constitution of the Republic of South Africa, 1996

6.1.33. Section 195 of the Constitution provides that —

“(1) Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:

a) A high standard of professional ethics must be promoted and maintained.”

National Department of Health Guidelines for Maternity Care in South Africa

6.1.34. Chapter 17 of the Guidelines for Maternity Care, dated 20155 provides amongst others that—

6.1.35. The above guideline provides that the mother and her baby should not be separated unless one of them requires special medical attention. In this instance, it is clear that Ms Sithole could not have been separated from her decuplets or denied access to them as the evidence obtained reflects that she was never admitted at Steve Biko Hospital. The medical records further state that Ms Sithole was not pregnant in recent times.

Conclusion

6.1.36. Based on the medical evidence in possession of the Public Protector namely; the Clinical Obstetrician and Gynaecology Report from Tembisa Hospital, it has been determined that Ms Sithole was neither pregnant nor did she deliver decuplets as alleged.

6.1.37. Furthermore, the following inconsistencies in her version have been observed:

6.1.37.1 She was never admitted at Steve Biko Hospital for delivery of decuplets during 2021 as alleged, but only in 2014 for the delivery of her twins;

6.1.37.2 The details of Ms Sithole do not appear on the Nominal Admission Register and the Medico Report of Steve Biko Hospital;

6.1.37.3 It is not clear precisely where Ms Sithole further alleged that she gave birth to decuplets at Steve Biko Hospital, Sunninghill Hospital and Mediclinic Medforum Hospital, which was disputed by all facilities.

6.1.38 The Investigation Team could not find evidence to show that the Steve Biko Hospital violated any aspect of section 195(1)(a) of the Constitution with respect to Ms Sithole being treated in an unprofessional or unethical manner. The hospitals in which Ms Sithole alleged to have received pre-natal care or where she claims to have delivered the babies have confirmed that according to their records, she was not admitted at any of their facilities.

6.2 Whether the officials of Tembisa Hospital acted improperly in the involuntary admission of Ms Sithole for medical observation and divulged her medical information to the Gauteng Provincial Government (GPG) without her consent, and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and maladministration in terms of section 6(4)(a)(i) of the Public Protector Act

Common cause issues

6.2.1 Tembisa Hospital is a health care facility designated by the Mental Health Care, to carry out 72 hours observation of a patient presenting with signs and symptoms suggestive of a mental disorder.

6.2.2 Ms Sithole was admitted at Tembisa Hospital on 17 June 2021.

Issue in dispute

6.2.3 The issue for the Public Protector’s determination is whether the officials of Tembisa Hospital acted improperly in the involuntary admission of Ms Sithole for medical observation and divulged her medical information to the GPG without her consent.

Complainant’s version

6.2.4 The Complainant indicated that Ms Sithole was admitted to Tembisa Hospital against her will, as an involuntary mental health care user and was denied access to her legal representative. He stated that, in doing so, Tembisa Hospital contravened the provisions of the Mental Health Care Act.

6.2.5 The Complainant further asserted that on 23 June 2021, the GPG issued a media statement disclosing Ms Sithole’s confidential medical information as obtained from Tembisa Hospital.

Submission by Dr A Mthunzi: Chief Executive Officer, Tembisa Hospital

6.2.6 An allegations letter dated 04 August 2021, was sent to the Chief Executive Officer: Tembisa Hospital, Dr A Mthunzi (Dr Mthunzi), requesting him to provide a comprehensive response and relevant supporting documentation to the allegations raised by the Complainant.

6.2.7 A response letter dated 24 August 2021, from Dr Mthunzi was submitted to the Public Protector wherein he stated as follows:

“The TPTH Clinical Manager: Dr Mbeleki received a call on 17 June 2021 from someone who introduced herself as Chief Director of Social Development: Ms Tebello Mkhonto. Ms Mkhonto advised him that she was with the social workers, police and the mother of the ten (10) babies and she said that the social workers report that the mother is paranoid and requested for admission.

At the same time, a missed call was observed by Dr Mbeleki from Dr Catherine Sibeko (Director of Mental Health Service: Ekurhuleni). Dr Mbeleki escalated the request to other clinical managers who were on duty, Dr Mathabathe and Dr Mabotja. And also contacted the psychiatrist Dr Naidu to inform her to prepare for the possible admission.

Ms Tebello Mkhonto contacted Dr Mathabathe and Dr Mabotja, to request for authorisation number and admission approval letter from the CEO of the TPTH, however the two clinicians referred her to the GDoH, Kwara Kekana and Philane Mhlungu (officials in the MEC’s office). The CEO of TPTH did not give telephonic approval for admission as we are a public institution and we do not offer any approval or authorisations for admission. Therefore, there was no maladministration and improper conduct with regards to the application of the mental health care user at Tembisa Provincial Tertiary Hospital. Ms Sithole was assessed in ward 14 to protect the patients’ privacy and dignity as this was a story of public interest. Form 1 was completed by Dr Zwane (17/06/2021) and Dr Mathabathe signed as the Head of the establishment. Form 4 was completed (17/06/2021) by the social worker (Ms Makate assisted by Sr Tumelo Parks) from social development, as the social worker reported being unable to contact the next of kin. The social worker has known Ms Sithole from 2016 and had contact with her in the preceding 7 days. The social worker reported symptoms that warranted assessment for further treatment and rehabilitation. Form 5 was completed by T I Khethe (17/06/2021) and Dr Zwane (17/06/2021) countersigned by Prof Naidu. Form 6 was completed by Dr Tenia (17/06/2021). Form 7 was completed by Mr Letsoalo (17/06/2021). Form 8 was completed by Dr Mathabathe (20/06/2021). Form 11 was completed by Dr Mbeleki (28/06/2021). Therefore there was no maladministration and improper conduct in terms of the application.

TPTH did not receive any admission letter however the application form for admission from the social worker in the GDSD was received. Form 4 was correctly completed as the social worker falls under the definition of a healthcare provider in terms of the Mental Health Care Act.

TPTH and the doctors who examined Ms Sithole did not communicate with the media. The hospital received a request from the MEC’s office and Gauteng Health legal directorate to submit a medical report. Therefore, TPTH acted in accordance with the request from the Gauteng Department of Health and there was no maladministration and improper conduct.

TPTH is not aware of any request to visit or consult from Ms Sithole’s legal representative. A letter of demand requesting information with regards to involuntary admission of Ms Sithole was received on the 02nd July 2021 from Refiloe Mokoena Attorneys. This letter of demand did not include a request for a visit or consultation”. (Own emphasis)

Submission by Prof Kalaivani Naidu, Head of Psychiatry Unit, Tembisa Hospital

6.2.8 The Public Protector is in possession of an affidavit dated 15 August 2021 from the Head of Unit: Psychiatry (GDoH), Prof Kalaivani Naidu (Prof Naidu), wherein he stated that as a psychiatrist, he did not perform any examinations or investigations on Ms Sithole to confirm or exclude her pregnancy or delivery, further that, he did not divulge any of her information to third parties.

6.2.9 Prof. Naidu stated, amongst others, that he noted the findings of the obstetrician that there is no evidence of a recent pregnancy. Furthermore, that there were reasonable grounds which warranted Ms Sithole’s involuntary admission to Tembisa Hospital for observation.

Submission by Dr Bongani Spencer Strike Nkosi: Head of Department: Obstetric and Gynaecology

6.2.10 In an affidavit dated 10 August 2021, in the possession of the Public Protector, Dr Nkosi who treated Ms Sithole during her admission at Tembisa Hospital, confirmed that he did the clinical examination and his findings were within the limit of his profession and conduct as a specialist Obstetrician and Gynaecologist.

6.2.11 Furthermore, he did not disclose Ms Sithole’s medical information to third parties.

Medical Report from Dr H S Bosman and Prof N Khamker, Gauteng Department of health

6.2.12 The Public Protector is in possession of a medical report on Ms Sithole dated 05 August 2021 from the Registrar: Psychiatry at GDoH, Dr H S Bosman and the Consultant: Psychiatrist at GDoH, Prof N Khamker, implying that there were reasonable grounds for Ms Sithole’s involuntary admission to Tembisa Hospital for observation.

Application of relevant law and prescripts

Mental Health Care Act 17 of 2002

6.2.13 Section 33 of the Mental Health Care Act provides that—

“(1)(a) An application for involuntary care, treatment and rehabilitation services may only be made by the spouse, next of kin, partner, associate, parent or guardian of a mental health care user, but where the —

(i) …;

(ii) spouse, next of kin, partner, associate, parent or guardian of the user is unwilling, incapable or is not available to make such application, the application may be made by a health care provider.

(b) The applicants referred to in paragraph (a) must have seen the mental health care user within seven days before making the application.

(2) Such application must be made in the prescribed manner, and must-

(a) set out the relationship of the applicant to the mental health care user;

(b) if the applicant is a health care provider, state-

(i) the reasons why the application is made by him or her; and

(ii) …;

(c) set out grounds on which the applicant believes that care, treatment and rehabilitation are required; and

(d) state the date, time and place where the user was last seen by the applicant within seven days before making the application.

(3) …;

(4)(a) on receipt of the application, the head of the establishment concerned must cause the mental health care user to be examined by two mental health care practitioners.

(b) …

(5) On completion of the examination the mental health care practitioners must submit to the head of the health establishment their written findings on whether the—

(a) circumstances referred to in section 32(a) and (b) are applicable; and

(b) mental health care user must receive involuntary care, treatment and rehabilitation services.

(6) (a)...;

(b) That mental health care practitioner must, on completion of such examination submit a written report on the aspects referred to in subsection (5).

(7) The head of the health establishment may only approve the application if the application findings of two of the mental health care practitioners referred to in subsection (4) or (6) concur that conditions for involuntary care, treatment and rehabilitation exist.

(8)...

(9) If the head of the health establishment approves involuntary care, treatment and rehabilitation services, he or she must-

(a) within 48 hours cause the mental health care user to be admitted to that health establishment.” (Own emphasis)

6.2.14 In this instance, the application for involuntary care, treatment and rehabilitation services was made by a mental health care practitioner6 (social worker), Ms Makate, who stated the reasons for making the application, as a healthcare practitioner, after she had observed symptoms from Ms Sithole that warranted assessment for further treatment and rehabilitation.

6.2.15 Ms Makate further stated that at the time of Ms Sithole’s admission for observation, she did not know any of her family members. Ms Makate indicated in paragraph C of Form 04 that she last saw the user on 17 June 2021 at Tembisa Hospital, which was within the seven days of the application as required by section 33(1)(b)the Mental Health Care Act.

6.2.16 Factual evidence in possession of the Public Protector revealed that Ms Sithole was examined by Prof Naidu and Prof N Khamker during her admission at Tembisa Hospital from 18 June 2021 until 21 June 2021, as required by section 33(4)(a).

6.2.17 Both medical specialists reports concurred that there were reasonable grounds for Ms Sithole’s involuntary admission to Tembisa Hospital for observation.

Conclusion

6.2.18 It is concluded, taking into account the Complainant’s version, Ms Sithole’s statement to the Public Protector, medical reports and the applicable law, that there is no evidence to support the contention that the doctors disclosed Ms Sithole medical information to the public. Furthermore, Ms Sithole’s involuntary admission may have been warranted, considering the circumstances of the matter in its totality.

6.2.19 The Investigation Team is in possession of Ms Sithole’s social work report dated 04 December 2017, compiled and signed by Ms Makate indicating that Ms Sithole has been a client of the GDSD since 2017, contrary to what was submitted by the Complainant.

6.3 Whether the Gauteng Department of Social Development (GDSD) acted improperly in the removal of Ms Sithole’s twin children for placement at a place of safety and in interviewing her in the presence of her friend, Ms Malinga, and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and maladministration in terms of section 6(4)(a)(i) of the Public Protector Act

Common cause issues

6.3.1 The GDSD derives its core mandate from Section 27(1) of the Constitution which provides for the right of access to appropriate social assistance to those unable to support themselves and their dependents.

6.3.2 On 16 June 2021, Ms Makate, the GDSD social worker removed the children from their residence to a place of safety.

6.3.3 It is further confirmed that on 13 June 2021, Ms Sithole held a meeting with Ms Makate at Ms Malinga’s house.

Issue in dispute

6.3.4 The issue for the Public Protector’s determination is whether the Gauteng Department of Social Development (GDSD) acted improperly in the removal of Ms Sithole’s twin children for placement at a place of safety and in interviewing her in the presence of her friend, Ms Malinga.

Complainant’s version

6.3.5 The Complainant alleged that on 12 June 2021, Ms Makate consulted with Ms Sithole in the presence of one Ms Malinga at the latter’s house in Tembisa and in doing so, Ms Makate infringed Ms Sithole’s right to privacy. He further stated that on 15 June 2021, Ms Makate removed Ms Sithole’s children to an undisclosed place of safety. According to the Complainant, the GDSD also instructed the principal of the school where Ms Sithole’s children attend not to communicate with her attorney, Ms Mokoena.

6.3.6 He indicated that on the evening of 17 June 2021, he was called by Ms Mokoena and informed that the GDSD had taken Ms Sithole to Tembisa Hospital for admission as an involuntary mental health care user and that Ms Sithole had instructed Ms Mokoena to move an urgent court application for her release from Tembisa Hospital since she was admitted against her will.

6.3.7 The Complainant further submitted that Ms Makate gave false and incomplete information in sections A, C, E and F of the MHCA 04 form during the admission of Ms Sithole as an involuntary mental health care user at Tembisa Hospital.

Submission by Ms Thembeni Mhlongo: Head of Department, Gauteng Department of Social Development

6.3.8 An allegations letter dated 04 August 2021 was forwarded to the Head of Department of the GDSD: Ms Thembeni Mhlongo (Ms Mhlongo) to provide a comprehensive response and relevant supporting documentation to the allegations as raised by the Complainant.

6.3.9 On 07 December 2021, the Public Protector received a response letter dated 17 September 2021 from Ms Phumla Nkosi (Ms Nkosi), the Regional Director of the GDSD: Municipality, wherein she provided an account of the information she was able to gather pertaining to the matter from the Social Worker, Ms Makate. She submitted inter alia that in December 2017, Ms Sithole visited the GDSD, Tembisa local office. She was at the time heavily pregnant requesting the assistance of a social worker. She was assisted by social worker Ms Makate who was on in-take duty at the time.

6.3.10 On 09 June 2021, Ms Sithole contacted Ms Makate expressing concerns about the wellbeing of the twins and requested that Ms Makate should come see her in hospital.

6.3.11 On 13 June 2021, Ms Sithole called Ms Makate and asked to meet her at Ms Malinga’s house at Umfuyaneni. During the visit she asked Ms Makate to go and check her twins at their residence. Ms Makate went and checked on the twins then reported back to Ms Sithole.

6.3.12 On 16 June 2021, Ms Makate removed the children from their residence following a phone and WhatsApp conversation with their mother Ms Sithole wherein she further expressed concerns regarding the twins. Ms Makate placed the twins at Igugulethu place of safety.

6.3.13 During Ms Sithole’s admission at Tembisa Hospital, Ms Makate was asked by the admitting sister if any family members were available to come and complete the MHCA 04 form, Ms Makate informed the admitting team that Ms Sithole has no family in Gauteng Province, accordingly, she had to complete the MHCA 04 form on behalf of Ms Sithole so that the hospital can have the required details.

6.3.14 The latest intervention by Ms Makate was the reuniting of the twins with their mother upon her release from the hospital.

Submission by Ms Nomgqibelo Pauline Malinga: Lifelong family friend to Ms Sithole

6.3.15 In an affidavit dated 17 December 2021, Ms Malinga alluded, amongst others, that on 12 June 2021 Ms Sithole came to her house and asked her to call Ms Makate to come and assist her with her twin children and to take them to a place of safety. Ms Makate then came to her house as requested. Upon her arrival Ms Sithole asked her (Ms Malinga) to be part of their consultation and did not say that she is uncomfortable with her presence at any given time during the meeting.

6.3.16 Ms Makate went to Mr Tsotetsi’s house as per Ms Sithole’s request and she came back and told Ms Sithole that the children are not looking good and that they needed her as the mother. Ms Sithole then asked Ms Makate to take them away from Mr Tsotetsi’s house to a place of safety.

Submission by Ms Mokgethwa Makate, Social Worker from the GDSD

6.3.17 On 24 October 2022, the Public Protector received an affidavit dated 19 October 2022 from Ms Makate, wherein she stated, amongst others, that she had consent from Ms Sithole to remove her twins to a place of safety.

6.3.18 Furthermore, on 16 June 2021, she reported the matter to the Department‘s team assigned for the Tembisa 10 case and the SAPS team working on the missing persons case of Ms Sithole. A decision was taken that for the well- being and safety of the children, it is better if they are placed at a place of safety until their biological mother is back to care for them. On the same day, she removed the children from their residence and placed them at Igugulethu place of safety with a Form 36. The Form 36 was approved by the Magistrate at Tembisa Children’s Court on 18 June 2021.

6.3.19 Ms Makate further stated that Ms Sithole, who has sole custody of the children, was reunited with her twins on 16 September 2021 through the Tembisa Children’s court in the presence of the Magistrate.

6.3.20 The Investigation Team is further in possession of the Children’s Court Order in terms of section 155(8) of the Children’s Act7, dated 16 September 2021, wherein the court ordered that Ms Sithole’s twins must be discharged from Igugulethu place of safety and be returned to the care of their biological Mother.

6.3.21 The Public Protector received a supplementary affidavit dated 19 October 2022 from Ms Makate, wherein she contended that she did not instruct Mr Ramokgopa not to communicate with Ms Sithole’s attorney.

Application of relevant law and prescripts

The Constitution of the Republic of South Africa, 1996

6.3.22 Section 27(1)(c) of the Constitution provides that everyone has a right to have access to social security, including, if they are unable to support themselves and their dependents, appropriate social assistance.

6.3.23 Section 28(1)(c) and (d) of the Constitution provides, amongst others, that every child has the right to basic nutrition, shelter, basic health care services and social services and to be protected from maltreatment, neglect, abuse or degradation.

6.3.24 The Department of Social Development derives its core mandate from the Constitution. Schedule 4 of the Constitution further identifies welfare services as one of the functional areas of concurrent national and provincial legislative competence.

6.3.25 Factual evidence reveals that the GDSD removed Ms Sithole’s children with her knowledge after she had made a request for their removal Ms Makate subsequently obtained approval from the Tembisa Children’s Court, as Ms Sithole was worried that her children were not receiving appropriate care and protection from the Tsotetsi’s family, which she alleged did not treat her and the children well during their stay with them.

6.3.26 Section 14(d) of the Constitution provides everyone has the right to privacy, particularly not to have the privacy of their communications infringed.

6.3.27 Further evidence in the form of an affidavit from Ms Malinga revealed that Ms Sithole did not raise any objection to being interviewed in the presence of a family friend and that she asked Ms Malinga to be part of the interview with the GDSD. Accordingly, it cannot be said that Ms Sithole’s rights to privacy were infringed through the interviewing process.

Conclusion

6.3.28 It can be concluded that there was no impropriety that could be established in the conduct of the GDSD in the removal of Ms Sithole’s children to a place of safety, and that Ms Makate was required to complete the forms for Ms Sithole’s admission.

6.4 Whether Ms Lindiwe Khonjelwayo of City of Ekurhuleni Metropolitan Municipality (CoE) improperly instructed members of the Complainant’s family to report Ms Sithole missing to the SAPS in order to facilitate her involuntary hospital admission, and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and maladministration in terms of section 6(4)(a)(i) of the Public Protector Act

Common cause issue

6.4.1 Ms Khonjelwayo visited the residence of Ms Sithole to enquire about the birth of the decuplets following media reports.

Issue in dispute

6.4.2 The issue for determination is whether Ms Khonjelwayo improperly instructed members of the Complainant’s family to report Ms Sithole missing to the SAPS, in order to have her admitted as an involuntary patient at a mental institution.

Complainant’s version

6.4.3 The Complainant submitted that Ms Khonjelwayo visited his home in order to enquire about the birth of the decuplets. The Complainant further stated that Ms Khonjelwayo instructed members of his family to approach a local police station and report Ms Sithole missing, when his family stated that they did not know the whereabouts of Ms Sithole.

6.4.4 According to the Complainant, this was to enable members of the SAPS to apprehend her and hand her over to the GDSD for the purposes of having her admitted as an involuntary patient at a mental institution. The Complainant’s daughter, Ms Lerato Tsotetsi, acting on the instructions of Ms Khonjelwayo opened a missing person’s case.

Submission by Ms Lindiwe Khonjelwayo: Gender Focal Specialist, City of Ekurhuleni Municipality

6.4.5 An allegations letter dated 04 August 2021, was sent to the City Manager of CoE, Dr Imogen Mashazi (Dr Mashazi), to provide a comprehensive response and relevant supporting documentation to the allegations raised by the Complainant.

6.4.6 The Public Protector received an email response dated on 01 September 2021 from Ms Khonjelwayo, wherein she stated, inter alia, that:

6.4.6.1 On 09 June 2021, she visited the family at the address that was confirmed by Mr Tsotetsi telephonically and met with his family members, who confirmed the existence of the decuplets;

6.4.6.2 On 10 June 2021, she received a message from Ms Tsotetsi indicating that Ms Sithole is missing. She called Ms Tsotetsi who explained that they were unable to get hold of Ms Sithole on the phone and at the Medforum Mediclinic hospital. She further submitted that once they are certain that Ms Sithole is missing they can go and report a case at the local police station.

Application of relevant law and prescripts

6.4.7 Section 205(3) of the Constitution provides that the objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.

6.4.8 In this case, Ms Khonjelwayo advised the Tsotetsi‘s family to report the matter to the SAPS as the relevant authority vested with the powers to protect and secure the general public, which was appropriate in the circumstances as Ms Sithole’s family was uncertain of her whereabouts and safety.

Conclusion

6.4.9 Based on the evidence traversed above, it can be concluded that Ms Khonjelwayo acted on the information received from Ms Tsotetsi that Ms Sithole could not be found. In addition, there is no evidence that Ms Khonjelwayo instructed members of the Complainant’s family to report her missing for the purposes of having her admitted as an involuntary patient at a mental institution.

6.5 Whether the South African Police Services (SAPS) unlawfully arrested and detained Ms Sithole in relation to a missing person inquiry, and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and maladministration in terms of section 6(4)(a)(i) of the Public Protector Act

Common cause issue

6.5.1 A missing person inquiry case was opened at Tembisa SAPS under CAS 145/08/2021, after Ms Sithole was reported missing by the Complainant’s daughter, Ms Tsotetsi.

Issue in dispute

6.5.2 The issue for the Public Protector’s determination is whether members of the SAPS unlawfully arrested and detained Ms Sithole in response to the missing person inquiry.

Complainant’s version

6.5.3 The Complainant submitted that on 17 June 2021, he received a call from Ms Sithole informing him that she had been apprehended by the Chloorkop Police Officials in relation to the missing person inquiry. In a further undated statement submitted by Ms Sithole, she indicated that following her arrest, she met with officials of the GDSD and the Chloorkop and Tembisa SAPS, where after she was taken to Tembisa Hospital for involuntary admission.

Submission by Major General Tommy Mthombeni: Acting Gauteng Provincial Commissioner for SAPS

6.5.4 An allegations letter dated 04 August 2021, was sent to the Acting Gauteng Provincial Commissioner of the SAPS: Major General Tommy Mthombeni (Maj Gen Mthombeni), to provide a comprehensive response and relevant supporting documentation to the allegations as raised by the Complainant.

6.5.5 On 27 September 2021, the Public Protector received an SAPS 545 Report in terms of National Instruction8 dated 09 September 2021, with Complaint Reference Number: 145/08/2021 from Lieutenant Colonel R Pillay (Lt Pillay) of the SAPS Provincial Inspectorate: Gauteng Complaints Investigation. Lt Pillay’s report states the following:

6.5.5.1. That the Complainant was interviewed by Captain N.G Rikhotso (Capt Rikhotso) at his place of residence on 09 September 2021 at 11h00. It is further stated that Ms Sithole was never arrested, but only taken by SAPS members to close the missing person file that was opened;

6.5.5.2. Capt Rikhotso stated that on 09 September 2021 at about 09h17, he contacted the Complainant but her phone was on voice mail. At about 10h45, he and Captain Murukhu visited the Complainant’s residence.

6.5.5.3. Capt Rikhotso further stated that upon arrival at the Complainant’s residence, they found the Complainant and asked him to give them a copy of the rights of arrested persons document so that they could determine who the arresting officer was and also asked him where Ms Sithole was detained and for how many days.

6.5.5.4. Capt Rikhotso stated that the Complainant failed to produce the rights of the arrested persons document and advised that he did not know where Ms Sithole was arrested. The Complainant confirmed that Ms Sithole did not spend a night at either police cells or a police station.

Submission by Ms Ditshewane Ellen Mofokeng: a friend of Ms Sithole

6.5.6 On 15 December 2021, the Investigation Team interviewed Ms Mofokeng regarding her knowledge of the events surrounding Ms Sithole’s alleged arrest. Ms Mofokeng submitted an affidavit on the same day wherein she alluded, amongst other things, of being aware that Ms Sithole had been reported as a missing person. Ms Mofokeng stated that she and her husband suggested to Ms Sithole that they make Captain Motsai, their neighbour, aware that she is not a missing person and that she was at Ms Mofokeng’s residence, since 12 June 2021, a suggestion that Ms Sithole agreed to.

6.5.7 According to Ms Mofokeng, they then informed Captain Motsai that Ms Sithole was at their place of residence and therefore not missing.

6.5.8 On the morning of 17 June 2021, Captain Motsai visited the Mofokeng residence and advised that he would be taking Ms Sithole with him to Chloorkop SAPS regarding the missing person inquiry. Ms Mofokeng then accompanied both Captain Motsai and Ms Sithole to the Chloorkop SAPS.

Application of relevant law and prescripts

The Constitution of the Republic of South Africa, 1996

6.5.9 Section 205(3) of the Constitution provides amongst other things that the objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.

6.5.10 In this instance, the police took Ms Sithole to Chloorkop SAPS for closure of the missing person inquiry after being made aware by Ms Mofokeng that Ms Sithole is not missing.

6.5.11 Section 21(1) of the Constitution provides that everyone has the right to freedom of movement. In this instance, evidence in the form of witness statements by Ms Mofokeng and Capt Rikhotso suggests that Ms Sithole was not arrested but rather was taken to the police station, with her permission, in order to bring closure to the missing person’s enquiry opened by Ms Tsotetsi.

Conclusion

6.5.12 Based on factual evidence discussed above, it can be concluded that members of the SAPS, did not arrest or detain Ms Sithole in relation to a missing person’s inquiry.

6.6 Whether the Gauteng Provincial Government (GPG) unlawfully divulged Ms Sithole’s medical information to the media and to the public without her knowledge and consent, and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and section 6(4)(a)(ii) of the Public Protector Act

Common cause issue

6.6.1 On 17 June 2021, Ms Sithole was admitted at Tembisa Hospital as an involuntary mental health care user where psychiatric and medical examinations were conducted.

Issue in dispute

6.6.2 The issue for the Public Protectors determination is whether the GPG unlawfully communicated the findings of Ms Sithole’s medical examinations to the media and to the public without her consent.

Complainant’s version

6.6.3 The Complainant submitted that the GPG unlawfully communicated the findings of Ms Sithole’s medical examinations carried out at Tembisa Hospital to the media and to the public through its spokesperson, Mr Thabo Masebe, without Ms Sithole’s consent.

6.6.4 The Complainant further alleged that, on 23 June 2021, the GPG issued a media statement saying that the medical examination carried out at Tembisa Hospital had found that Ms Sithole had not given birth and was not pregnant “in recent times”.

Submission by Mr Mdudu Mbada: Acting Director General in the Office of the Premier, Gauteng

6.6.5 An allegations letter dated 20 July 2022, was sent to Mr Unathi Mphendu (Mr Mphendu), the Director: Integrity Management in the Office of the Premier: Gauteng to provide a comprehensive response and supporting documentation to the allegations as raised by the Complainant.

6.6.6 On 15 August 2022, the Public Protector received a response letter dated 13 August 2022, from the Acting Director General in the Office of the Premier, Mr Mduduzi Mbada (Mr Mbada), wherein he states as follows:

6.6.7 That in 2021, a myriad media articles were published by Independent Media and the Pretoria News about Ms Sithole having given birth to decuplets at the Steve Biko Hospital. The Independent Media and the Pretoria News stated this as a fact and not allegations;

6.6.8 That to this end, the GPG conducted an internal investigation to test the veracity of these media articles most of which were continuously misleading and confusing the public about the GPG, the Gauteng Department of Health and Health Facilities within the Province. These publications were, inter alia, alleging that Ms Sithole gave birth at Steve Biko Hospital. He contended that Steve Biko Hospital did not publicize the birth of the decuplets. The media articles reported that Ms Sithole’s children subsequently disappeared;

6.6.9 That, these perpetual media articles created negative perceptions to the general public about the Gauteng Health facilities and the GPG;

6.6.10 That, subsequent to the publication of more articles which were continuing to exacerbate the matter, the GPG decided to set the record straight and to provide the public with facts about the issue of the decuplets. He submitted that in fact, the GPG was expected to respond to the alleged birth in its facilities due to the ongoing accusations that the GPG had something to hide. Furthermore, that this was also in the public interest as the facilities that were put into disrepute are used by the general public;

6.6.11 That, internal investigations were conducted regarding the validity of the allegations. The outcome of the investigations established that Ms Sithole was never pregnant. It was only then that the decision was taken to prepare a media statement to alleviate possible doubts, fear and misconception by the general public about visiting Health Facilities and about GPG;

6.6.12 That the above media statement was, therefore, intended to communicate three things to all the media articles published by the Independent News and Pretoria News. Firstly, to refute the media articles as false and unsubstantiated. Secondly, to communicate facts regarding this matter. Thirdly, to communicate the GPG’s commitment to continue to give medical, psychological and social support to Ms Sithole.

Conclusion

6.6.13 Based on the media claims against the Department of Health / Steve Biko Hospital and the subsequent outcome of the internal investigations (Clinical Obstetrician and Gynaecology Report from Tembisa Hospital) by the GPG regarding this matter, the GPG released a statement to the media with the objective of refuting the unsubstantiated media reports since the matter had attracted a lot of public interest both domestically and internationally. The Investigation Team is in possession of the undated media statement issued by the GPG with subject matter: “Statement of the Gauteng Government on the so-called “Decuplets” submitted by the Complainant and the GPG with its response to the allegations.

6.6.14 Therefore, it was reasonable for the GPG to protect the reputation of the Department of Health and health facilities (Steve Biko Hospital) against the potential reputational threat posed by media articles published by the Independent Media, the Pretoria News and other media platforms.

Application of relevant law and prescripts

National Health Act 61 of 2004

6.6.15 In terms of Section 14 of the National Health Act —

“(1) All information concerning a user, including information relating to his or her health status, treatment or stay in a health establishment, is confidential.

(2) Subject to section 15, no person may disclose any information contemplated in subsection 1, unless—

(a) ;

(b) ; or

(c) non-disclosure of the information represents a serious threat to public health”.

6.6.16 In this instance, the GPG disclosed the health status and stay of Ms Sithole at Tembisa Hospital as the non-disclosure thereof would have represented a threat to public interest in public health services.

Conclusion

6.6.17 Based on the above evidence, it can be concluded that the GPG conducted itself in compliance with the provisions the National Health Act, which deals with the confidentiality of the information concerning a user, including information relating to her health status, treatment or stay in a health establishment.

7. FINDINGS

Having regard to the evidence, the regulatory framework determining the standard that the GDoH, GDSD, SAPS, CoE and the GPG should have complied with and the impact thereof on good administration, the Public Protector is likely to make the following findings:

7.1. Whether Tembisa Hospital records confirm that Ms Sithole gave birth to decuplets at Steve Biko Hospital and was refused access to her babies by hospital officials and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and section 6(4)(a)(ii) of the Public Protector Act

7.1.1. The allegation that Ms Sithole gave birth to decuplets on 07 June 2021 at Steve Biko Hospital and that she was refused access to her babies, is unsubstantiated.

7.1.2. Evidence at the disposal of the Public Protector, namely; the Clinical Obstetrician and Gynaecology Report from Tembisa Hospital indicates that Ms Sithole did not give birth and was not pregnant in recent times.

7.1.3. Further evidence in the form of the Nominal Admission Register and the Medico Report of Steve Biko Hospital revealed that Ms Sithole was never admitted at Steve Biko Hospital during 2021. The Steve Biko Hospital only has Ms Sithole’s medical records of 2014 during the delivery of her twins.

7.1.4. Evidence in the form of statements made by Ms Sithole illustrate several factual contradictions regarding where Ms Sithole allegedly gave birth to the decuplets as she mentioned that the delivery of her children occurred at Steve Biko, Sunninghill and Mediclinic Medforum Hospitals. All the hospitals denied that she was admitted at their facilities during this period.

7.1.5. According to Mr Thabang Letsebe, Assistant Nursing Manager at Steve Biko Hospital, Ms Sithole allegedly informed him that she delivered the children at Louis Pasteur Hospital.

7.1.6. The conduct of the Steve Biko Hospital was, therefore, not in contravention of Section 27(1)(a) of the Constitution and Chapter 17 of the Guidelines for Maternity Care in South Africa.

7.1.7. Accordingly, the conduct of the Steve Biko Hospital and its officials in the circumstances does not constitute improper conduct as envisaged in section 182(1) of the Constitution and maladministration as envisaged in section 6(4)(a)(i) of the Public Protector Act.

7.2. Whether the officials of Tembisa Hospital acted improperly in the involuntary admission of Ms Sithole for medical observation and divulged her medical information to the Gauteng Provincial Government (GPG) without her consent, and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and maladministration in terms of section 6(4)(a)(i) of the Public Protector Act

7.2.1. The allegation that the officials of Tembisa Hospital acted improperly in the involuntary admission of Ms Sithole for medical observation and divulged her medical information to the GPG without her consent, is unsubstantiated.

7.2.2. Evidence in possession of the Public Protector, namely, the statements from Dr Mthunzi and Ms Makate, indicate that Ms Sithole was admitted at Tembisa Hospital as an involuntary mental healthcare user through the application of the mental healthcare practitioner. Ms Makate and the Head of the establishment caused her to be examined by two mental health care practitioners, who submitted their written findings to the head of the health establishment.

7.2.3. The medical report from Dr H S Bosman and Prof Khamker implies that the Head of the Tembisa Hospital approved the application for assisted or involuntary care, treatment and rehabilitation, upon receipt of the written report of the two mental health care practitioners, which concurred that the conditions for involuntary care, treatment and rehabilitation existed in terms of section 33 of the Mental Health Care Act.

7.2.4. The Public Protector is in possession of Form 1 to 11 with regard to the admission of Ms Sithole at Tembisa Hospital, as an involuntary mental health care user.

7.2.5. Affidavits submitted by Prof Naidu and Dr Nkosi confirmed that they did not communicate the findings of her medical examinations with the media through the spokesperson of the GPG, as alleged by the Complainant.

7.2.6. Instead, evidence indicates that Tembisa Hospital received a request from the MEC’s office and Gauteng Health legal directorate to submit a medical report, which was communicated to the media and the public by the GPG through a media statement, however, without providing in depth detail.

7.2.7. The conduct of the officials in the employ of Tembisa Hospital was, therefore, not in contravention of Section 33 of the Mental Health Care Act, in as far as the disclosure of Ms Sithole’s admission information is concerned.

7.2.8. Accordingly, the conduct of the officials in the employ of Tembisa Hospital, in the circumstances does not constitute improper conduct as envisaged in section 182(1) of the Constitution and maladministration as envisaged in section 6(4)(a)(i) of the Public Protector Act.

7.3. Whether Gauteng Department of Social Development (GDSD) acted improperly in the removal of Ms Sithole’s twin children for placement at a place of safety and in interviewing her in the presence of her friend, Ms Malinga, and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and maladministration in terms of section 6(4)(a)(i) of the Public Protector Act

7.3.1. The allegations that GDSD acted improperly in the removal of Ms Sithole’s twin children for placement at a place of safety and in interviewing her in the presence of her friend, is unsubstantiated.

7.3.2. Evidence in the form of affidavits from Ms Malinga and Ms Makate, indicate that the GDSD removed Ms Sithole’s children with her knowledge and request, which was approved by the Tembisa Children’s Court.

7.3.3. The statement provided by Ms Malinga indicate that Ms Sithole did not raise any objection of being interviewed in her presence and that Ms Sithole asked her to be part of the interview with the GDSD.

7.3.4. Therefore, the conduct of the officials in the employ of the GDSD was not in contravention of sections 27(1)(c) and 28(1)(c) and (d) of the Constitution.

7.3.5. Accordingly, the conduct of the officials in the employ of the GDSD in the circumstances does not constitute improper conduct as envisaged in section 182(1) of the Constitution and maladministration as envisaged in section 6(4)(a)(i) of the Public Protector Act.

7.4. Whether Ms Lindiwe Khonjelwayo of City of Ekurhuleni Metropolitan Municipality (CoE) improperly instructed members of the Complainant’s family to report Ms Sithole missing to the SAPS in order to facilitate her involuntary hospital admission, and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and maladministration in terms of section 6(4)(a)(i) of the Public Protector Act

7.4.1. The allegation that Ms Khonjelwayo improperly instructed members of the Complainant’s family to report Ms Sithole missing to the SAPS in order to facilitate her involuntary hospital admission, is unsubstantiated.

7.4.2. No evidence could be established to indicate that Ms Khonjelwayo instructed members of the Complainant’s family to approach a local police station and report Ms Sithole as a missing person, in order to have her apprehended and handed over to the GDSD and for the purposes of having her admitted as an involuntary patient at a mental institution, as alleged by the Complainant.

7.4.3. Evidence in the form of a statement received from Ms Khonjelwayo reveals that she acted on the information received from Ms Tsotetsi, that Ms Sithole was nowhere to be found and advised her to approach the SAPS for intervention upon confirming that Ms Sithole was indeed missing.

7.4.4. The conduct of Ms Khonjelwayo was, therefore, not in contravention of any legal prescripts.

7.4.5. Accordingly, the conduct of Ms Khonjelwayo in the circumstances does not constitute improper conduct as envisaged in section 182(1) of the Constitution and maladministration as envisaged in section 6(4)(a)(i) of the Public Protector Act.

7.5. Whether the South African Police Services (SAPS) unlawfully arrested and detained Ms Sithole in relation to a missing person inquiry, and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and maladministration in terms of section 6(4)(a)(i) of the Public Protector Act

7.5.1. The allegation that the SAPS unlawfully arrested and detained Ms Sithole in relation to a missing person inquiry, is unsubstantiated.

7.5.2. No evidence could be found indicating that members of the SAPS unlawfully arrested and detained Ms Sithole in relation to a missing person inquiry or handed her over to the GDSD for the purposes of having her admitted as an involuntary patient at a mental institution. Further, it was the sworn submission of Ms Mofokeng and Capt Rikhotso that Ms Sithole was only escorted to the Chloorkop SAPS for purposes of bringing closure to the missing person’s inquiry.

7.5.3. The conduct of the SAPS and its officials was therefore not in contravention of sections 205 and section 21(1) of the Constitution in the matter of Ms Sithole as she was never arrested or detained.

7.5.4. Accordingly, the conduct of the SAPS and its officials in the circumstances does not constitute improper conduct as envisaged in section 182(1) of the Constitution and maladministration as envisaged in section 6(4)(a)(i) of the Public Protector Act.

7.6. Whether the Gauteng Provincial Government (GPG) unlawfully divulged Ms Sithole’s medical information to the media and to the public without her knowledge and consent, and if so, whether such conduct constitutes improper conduct in terms of section 182(1) of the Constitution and section 6(4)(a)(ii) of the Public Protector Act

7.6.1. The allegation that GPG unlawfully divulged Ms Sithole’s medical information to the media and to the public without her knowledge and consent, is unsubstantiated.

7.6.2. Evidence in the form of the statement received from Mr Mbada revealed that the GPG complied with the provisions the section 14 of the National Health Act, in dealing with the confidential information of Ms Sithole as a health user, including information relating to her health status, treatment or her stay at Tembisa Hospital.

7.6.3. The conduct of the GPG was, therefore, not in contravention of section 14 of the National Health Act, which regulates confidentiality regarding all information concerning a user, including information relating to his or her health status, treatment or stay in a health establishment.

7.6.4. Accordingly, the conduct of the GPG in the circumstances does not constitute improper conduct as envisaged in section 182(1) of the Constitution and maladministration as envisaged in section 6(4)(a)(i) of the Public Protector Act.

8. CONCLUSION

8.1 The Public Protector considers this matter finalised and cannot take it further. Should any party wish to challenge this decision, they are at liberty to explore legal remedies at their disposal.

ADV KHOLEKA GCALEKA ACTING PUBLIC PROTECTOR

OF THE REPUBLIC OF SOUTH AFRICA DATE: 30 DECEMBER 2022

Assisted by: Ms Maselaelo Manyathela Provincial Representative: Gauteng

Footnotes:

¹ Published under Government notice No 945, Government Gazette 41903 of 14 September 2018 and Amended in Government Notice No 1047, Government Gazette 43758 dated 2 October 2020.

² Act No 17 of 2002

³ Reference number provided to the Public Protector by Ms Sithole.

⁴ Names provided to the Public Protector by Ms Sithole.

⁵ National Department of Health, Republic of South Africa- fourth edition- 2015.

⁶ Section 1 of the Mental Health Care Act, defines a “mental health care practitioner” as a psychiatrist or registered medical practitioner or a nurse, occupational therapist, psychologist or social worker who has been trained to provide prescribed mental health care, treatment and rehabilitation services.

⁷ Act 38 of 2005.

⁸ National Instruction 6 of 2017.