The Gauteng provincial government’s resistance to paying Constitutional damages to the families who lost their loved ones in the Life Esidimeni tragedy, may be tied to the fear of accepting greater responsibility.
This follows a 2015 Gauteng health department decision to place almost 1700 former Life Esidimeni mental health patients in the care of deadly NGOs. While 144 have since died, a further 12 remain missing.
“The Constitution is so detailed and comprehensive that [the state’s] liability will be increased, [if Constitutional damages are awarded]”, says Penelope Andrews, dean of the University of Cape Town’s (UCT) law faculty.
This week, Deputy Chief Justice Dikgang Moseneke, heard closing arguments in the Life Esidimeni arbitration. Family and state advocates reached a speedy agreement to ensure that the Gauteng provincial government pay families R20 000 each to cover the funeral costs of burying their loved ones and a further R180 000 in psychological damages. Public interest law organisation Section27 has welcomed the arrangement.
But families are also asking for R1.5 million in Constitutional damages, in addition to the R200 000 per patient, because that is the amount the state would have spent on patients had they not been placed with ill-equipped and often unlicensed NGOs.
The Life Esidimeni arbitration is the first time in South African history that Constitutional damages have been sought for the violation of mental health care patients’ rights, says Advocate Adila Hassim who is representing 63 families on behalf of Section27.
Listen: The search for Billy Maboe
People can claim Constitutional damages when a government official has violated their Constitutional rights such as the right to health, life or equality, according to Andrews.
To successfully claim for such damages, advocates must show that there is no alternative way to obtain redress for human right violations under common law, Andrews explains. “It requires the plaintiff to show something much more than negligence (by the state), for example, but almost reckless disregard.”
Andrews says that to win Constitutional damages, plaintiffs do not have to show physical harm but could instead argue that officials’ actions diminished their dignity.
Typically in medico-legal cases, damages for medical injuries such as psychological damages would be calculated on expected treatment costs put forth by experts. The fact that this type of evidence was not argued in arbitration may have signalled a certain willingness by the state to pay up for the mental anguish families have suffered.
But state advocates were quick to contest the R1.5 million for Constitutional damages sought by family legal representatives on Friday.
State advocate Tebogo Hutamo argued Life Esidimeni families were not entitled to make this claim because it was the rights of their loved ones — and not theirs — that suffered directly as a result of Gauteng health department’s decision to remove patients from Life Esidimeni care.
“Families should be compensated for trauma and shock but not for the trauma the deceased went through as a result of the implementation of the project”, Hutamo said.
Listen: The blame game in overdrive
Moseneke asked Hutamo if he was suggesting that the arbitration “ignore all the Constitutional breaches against the deceased and only consider that of the family members?”
Hutamo said yes and added that the provincial government could not afford to pay what could ultimately amount to more than R20-million to families.
“It’s a bit rich”, Moseneke pointed out, for the state to complain about finances. In January, Gauteng finance MEC Barbara Creecy testified that the health department had spent more than R90-million on private consultants even as it ended its long-standing contract with Life Esidimeni to save R250-million.
Moseneke holds the final say over how much families will receive and is expected to make his announcement in early March.
If they are successful in their claim for Constitutional damages, families plan to donate part of this money to help other state mental health patients. As part of this week’s deal, a memorial to the victims will also be built.
Meanwhile, Hassim says the arbitration’s biggest question remains a mystery: Why the Gauteng health department chose to remove patients from Life Esidimeni’s care.
“We stand here today without answers.”