At the top: Former Gauteng health MEC Qedani Mahlangu gave testimony at the Life Esidimeni arbitration hearings in January. A year before, she resigned after the deaths of 143 mentally ill patients. Picture: THULANI MBELE
At the top: Former Gauteng health MEC Qedani Mahlangu gave testimony at the Life Esidimeni arbitration hearings in January. A year before, she resigned after the deaths of 143 mentally ill patients. Picture: THULANI MBELE

Now that the dust has settled after the Life Esidimeni arbitration, will it recede into the past as a tragic moment in history whose dead will be memorialised, but not much more will live on? If so, then not only would the dead not have been properly honoured by making things right, but SA can also be sure that a wrong of similar magnitude will recur.

This is because, despite protestations, the Life Esidimeni story is not exceptional. It is an inevitable consequence of a system of public governance that is broken, a public service that does not serve.

We may not know the real motive behind the manner in which patients and families were treated, but we can say why it was permitted.

There were several governance fault lines that contributed to the culture of government that made the catastrophic outcome possible.

The first is the disregard for section 195 of the Constitution, which details the basic principles of public administration. This section sits far from the provisions of the Bill of Rights yet it is central to the assertion of rights by the public.

There is an invisible thread between the rule of law, the Bill of Rights and section 195. When officials ignore the section 195 duties that rest on them it is the first step towards the crumbling of public governance that lets in the possibility of the events like those in Life Esidimeni.

Conditions … permitted one bad decision to follow another, with its … disastrous outcome

If efforts to be heard by public officials are futile, it is only the fortunate few who can afford access to legal services who have the opportunity to press ahead with their claims to protect fundamental rights and hope that the courts will force accountability from the administration. There are limits to the effectiveness of court-ordered accountability.

In public administration, accountability needs to come from convention: officials being expected to perform their duties and routinely doing so.

The disregard for the values of accountability, responsiveness and transparency was so complete in the case of Life Esidimeni that not even the courts could make a difference.

The second fault line is adherence to a notion of "collective responsibility".

The officials involved in decision making and implementation were eager to eschew individual responsibility in favour of collective responsibility.

The former health MEC, Qedani Mahlangu, testified that a "government decision is never an individual decision" and to say that it was hers would be misleading. This view was rife throughout the testimony of senior officials.

The political concept of collective responsibility, an incident of democratic centralism, has no place in the administration of a government department. It has seeped into the administration through its political roots as if it were a laudable tenet of governance. Its effect is that everyone, and no one, is responsible.

It also explains why the principles in section 195 are not taken very seriously as constitutional duties.

In a state bureaucracy there is a necessary hierarchy. This requires that the person at the top is ultimately responsible for decisions, but it does not mean that officials who are lower down the ladder are absolved from responsibility.

As in Marikana, there are those who pulled the trigger, those who ordered them to do so and those who could have stopped them but did not. All are responsible but in different ways and to varying degrees, calling for different responses.

The third fault line is the defence of "obeying orders". At the same time as officials claimed collective responsibility they wished to hold on to an obsolete defence of following orders, a stance that is itself a defensive form of mental splitting (a concept which mental health experts are better placed to explain).

The health ombud, Malegapuru Makgoba, noted there was a culture of fear in the Gauteng health department.

Officials thought that they were the servants of their bosses and had to take instructions. This kind of attitude was pervasive throughout the staff, but the closer people were to the top, the more fearful they were.

Those who had the temerity to question the plan to move patients were dealt with swiftly. The department’s chief director for planning, Levy Mosenogi, also the project manager for Life Esidimeni, experienced Mahlangu’s hard edge when he raised concern about the plan.

Her response to Mosenogi was simply: "Do you work for Life Esidimeni?"

Within this authoritarian system (which, interestingly, also runs counter to the claim of collective responsibility) the conditions were created that permitted one bad decision to follow another, with its inevitable disastrous outcome.

The fourth fault line is the lack of controls. Throughout the history of decision making that led to the disaster, decisions were either taken by people who were not mandated to take decisions or decisions were simply not taken at critical points. Crucial information was lost in the system.

For example, Gauteng Premier David Makhura disclosed that he was not aware of the communications sent to his office by Section 27, except he knew that there was a process being spearheaded by the director-general in the office of the health MEC.

He was not aware that a notice to oppose had been filed in his name in the 2015 litigation. Amazingly, the private attorney representing the government parties opposed the litigation on the premier’s behalf without a mandate from him.

In the same vein, the record is replete with examples of letters being written to the premier, the MEC and the national health minister that never reached them — letters officials testified they would have acted on had they reached them.

What makes Life Esidimeni extraordinary is the death toll, the repeated cries for help, the vulnerability of the victims and the cruel disregard for human suffering. But the system dysfunction that allowed it to happen is ever present and threatens a repeat performance.

Maybe the Life Esidimeni story will be the turning point, where the government brings change to the culture and system of administration so that it becomes an enabling environment for the fulfilment of constitutional values rather than its neglect.

The rise of President Cyril Ramaphosa promises a "new dawn". The system failure that contributed to the Life Esidimeni disaster is the same that has contributed to state capture. It created a fertile environment for the worms of wrongdoing.

Perhaps Ramaphosa will lead a process to use the lessons from Life Esidimeni to turn the state bureaucracy into an institution that we can be proud to represent us and proud to work for.

Hassim is co-founder of Section27 and member of the Thulamela Group of Advocates at the Johannesburg Bar