Former deputy chief justice Dikgang Moseneke. Picture: ALAISTER RUSSELL
Former deputy chief justice Dikgang Moseneke. Picture: ALAISTER RUSSELL

Retired deputy chief justice Dikgang Moseneke lashed out at former top officials of the Gauteng health department on Monday, saying that those entrusted with the lives of vulnerable patients had skirted their responsibilities, resulting in the deaths of at least 144 psychiatric patients.

Moseneke, who was presenting the outcome of an arbitration hearing he had chaired, said the tragedy was a "harrowing account" of death, torture and abuse.

He then read out the names of the victims. Altogether 44 patients are still unaccounted for and have been described as missing persons.

The state has conceded that the deaths were unnatural.

Moseneke ordered the government to pay each claimant R1.2m within the next three months. The money must be paid in a lump sum and includes R20,000 for funeral costs, R180,000 for damages under common law, while R1m was granted for the constitutional damages suffered by the claimants.

However, Moseneke left the door open to possible claimants who did not form part of the arbitration process. Claimants to be compensated total 135.

Moseneke said the government had breached several constitutional rights in how the patients were treated, such as their right to access to healthcare, food and water, along with the right not to be tortured and the right to be protected from cruel and inhumane treatment.

He said the reason given by former Gauteng health MEC Qedani Mahlangu, former health department head Barney Selebano and former Gauteng director of mental health Makgabo Manamela for the cancelling of the contract with private healthcare provider Life Esidimeni was "untrue". All three said it was due to budgetary constraints. Moseneke said Gauteng finance MEC Barbara Creecy had said this was not the case and that no critical services had to be stopped.

He said the three officials had tried to escape accountability for a plan that resulted in the mass displacement of patients.

However, Moseneke said Mahlangu was at the helm of the process and was "the ultimate leader and commander of the project". He said she had failed to explain how she allowed so many patients to be placed at risk "for no good reason", and that she had been aware of the full risks of the project.

"She ignored and indeed brushed aside the warnings on many levels that death might ensue, and death did ensue," Moseneke said. He said her plea of ignorance — that she was lied to about the facts of the project — was untrue and was "a response of convenience".

"Her overall conduct in relation to the marathon project was irrational, was inexplicable, highly reckless and led to the deaths of at least 144 mental healthcare users and 1,480 survivors of the torture at NGOs [nongovernmental organisations]," Moseneke said.

Mahlangu’s claim that she could not reasonably have foreseen that death might occur or that the patients might be subjected to torture "was untenable and cannot be believed".

"She acted with impunity, thinking that she could get away with it because the users of the mental healthcare and their families were vulnerable and poorly resourced," Moseneke said. However, he declined to order that criminal charges be laid. The police had been given a full record of the proceedings and should do their work as the law required, he said.

Gauteng Premier David Makhura said Moseneke’s report would be implemented without any reservation. He said no amount of money could compensate for loss of life.

He said criminal investigations were under way.

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Former deputy chief justice Dikgang Moseneke announced his judgment on the Life Esidimeni victims on Monday March 19 2018, awarding the families R1.2-million each.

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