“Esidimeni” Complaint: SAHRC briefing

Meeting report

The Chairperson explained that the meeting was convened in light of the tragedy of Esidimeni, in an attempt to understand what happened and how this will be prevented in the future. The South African Human Rights Commission (SAHRC) is very important and people must be able to trust it. This is why the Committee had requested the Commission to appear before it and report back on what the Commission had done so that they can move forward and there can be closure. He thanked the Commission for its cooperation at such short notice and handed over to Prof Majola, the newly appointed chairperson of the Commission

“Esidimeni” Complaint: South African Human Rights Commission (SAHRC) briefing
Prof Bongani Majola, SAHRC Chairperson, introduced his delegation: Commissioner Andre Gaum; Deputy Chairperson, Commissioner Priscilla Jana and Chief Operations Officer Chantal Kisoon.

Prof Majola expressed sadness about the Esidimeni matter and noted that the SAHRC greatly regrets the loss of life resulting from the way in which the matter was handled. He noted that a lot was said about the matter in media and he was grateful for the opportunity to clarify the role played by the Commission.

Prof Majola explained the series of events relating to the matter. He said that the first complaint about the matter was received on the 15 March 2016 from the Ubuntu Centre which expressed concern that patients were being discharged from Esidimeni and taken to NGOs. The SAHRC assessed the complaint to determine what to do with it and found it was necessary to investigate. They got in touch with organisations such as Section 27. Their investigation revealed that the matter of the discharge had been the subject of two separate urgent court applications before the High Court and that an order had been sought to interdict the Department of Health from discharging those patients and sending them to the community centres.

It was uncovered that prior to receiving the complaint, parties to the dispute had entered into an agreement. The agreement was that the Gauteng Health Department would not discharge patients from Life Esidimeni and place them in other facilities pending the conclusion of the negotiation of an amicable solution between the parties. The negotiations ultimately fell through due to accusations that the Gauteng Department of Health did not honour its side and an application was filed to interdict them from moving the patients. That interdict was aimed at stopping the department from sending patients to NGO facilities.

The SAHRC received the complaint on 15 March which was the date the second application, an interdict by Section 27, was dismissed by the court thereby allowing the Gauteng Department of Health to continue discharging the mental health care users. After the court ruling, the Commission continued to monitor the situation which is all the Commission could do in those circumstances. As the matter unfolded the Commission requested information from the Department of Health regarding the patients and engaged with Section 27. In September 2016, it was reported that 36 mental health care users who had been transferred from Life Esidimeni had died. Again the Commission engaged with Section 27 and wrote to Gauteng Department of Health calling for details and information.

Due to information coming through the media, the Commission inspected one of the NGOs which patients had been moved to but found the Precious Angels NGO abandoned. By this time the Minister had already set up the Health Ombudsman so the Commission shared the information with the Ombudsman who was investigating the circumstance under which some patients had died. In light of the inspection of the Precious Angels NGO, the Commission requested information about the patients. The Gauteng Department of Health responded that the whereabouts of the patients were always known and they had everything under control.

In November the Commission sent a four page letter to the Gauteng Health MEC asking for details of the patients, where they were, how they were being treated and advised her that the Commission was communicating with the Health Ombudsman. On 2 December, it got a response from the Department of Health explaining where the patients were but with no direct response about whether or not DoH had inspected the NGO facilities and what action they had taken if they found the facility was not up to scratch.

Considering the powers of the Commission, it appeared that the only option left was to monitor what was happening and it did so via correspondence with the Department and the other organisations involved as explained above. The Commission did not have the capacity in terms of resources or skills to go to all the NGOs itself and monitor them. With all the assurances from the Gauteng DoH that the patients were okay and receiving good care, the Commission did not have reason to suspect that the rights of these patients were being violated. The Johannesburg office was under a lot of pressure and going through some difficulties as the provincial office manager was battling a terminal illness and passed away around the time the deaths were announced. A combination of factors made it difficult for the SAHRC to do more than it did.

Prof Majola concluded by explaining that on 10 February 2017, the Minister of Health requested that the Commission undertake an investigation into the systemic issues that lead to this tragedy. He said that the Commission is preparing to undertake this and setting in place the foundation for the investigation. The Commission will do its best to continue monitoring the Esidimeni situation but considering the resource constraints, it will be limited to random if any checks. Prof Majola then asked if he could rest the matter at this point and explained that he had another matter he wanted to present to the Committee.

Discussion
The Chairperson suggested that they leave the next matter until later and proceed with the matter at hand. He thanked Prof Majola for the briefing and said that he was very impressed by the fact that even though he is new to the Commission, he is assuming responsibility for the shortcomings of the Commission as if he had been present the entire time. He said that considering the presentation, it is clear that the SAHRC did do what they could and was on top of the matter.

The Chairperson explained that the Committee was aware that the SAHRC had been asked by the Minister of Health to undertake some work and that they support that work. He pointed out that some of the non-governmental organisations were not registered, that there are organisations that receive government money but are not registered and said that an audit of that is needed and they rely on the assistance of the SAHRC.

Ms G Breytenbach (DA) disagreed with the Chairperson when he said that the Commission was on top of the matter. She accused SAHRC of not being on top of it all and of trying to shift blame to the courts.

The Chairperson interjected, respectfully asking Ms Breytenbach not to make such accusatory statements as they might mislead the public.

Ms Breytenbach asked not to be interrupted again and told the Commission that they had been warned about the impending disaster numerous times by more than one person and on more than one occasion. She asked the Commission to elaborate on the engagement they say they had with stakeholders and to elaborate on their investigation of Precious Angels, the abandoned NGO. She asked the Commission what action they took after finding the NGO abandoned and why they did nothing more than write letters to the Department of Health. She asked whether they tested the veracity of the information they were given by the Department and why they did not investigate the other NGOs. She concluded by saying that everyone is responsible for this tragedy and that blame must be accepted and not shifted to the courts.

Mr N Matiase (EFF) said that the death of 94 people amounted to criminal conduct and that it is of genocidal proportions. He pointed out that the Commission has broken trust with the Committee and the public. The trust was broken because the Commission had showed scant regard for the complaints brought before it. In February 2016 families of psychiatric patients had protested the cancellation of the contract with Esidimeni. He wanted to know why that did not garner the attention of the Commission, why the Commission did not assist them, why the Commission did not do anything before the 15 March 2016 and why was it left up to NGOs like Section 27 to do the work of the Commission. He recommended that the Commission investigate criminal charges and that criminal charges be laid against those responsible for the loss of life. He recommended that the Commission undertake an awareness campaign to ensure a mistake like this never happens again.

The Chairperson implored the Committee to bear in mind that the current Commissioners only assumed office in January 2017 after the tragedy and that they should not be asked to put themselves in the shoes of their predecessors and speculate about why they made errors of judgment.

Ms M Mothapo (ANC) extended her sincere condolences to the families affected by the tragedy. She implored the new Commissioners to work together as a collective moving forward. She asked where the Commissioners who were not present were. She noted that she was impressed by the leadership shown by newly appointed Prof Majola by assuming responsibility for the mistakes of the Commission and asked him to elaborate on the complaint received on the 15 March 2016.

Mr B Bongo (ANC) congratulated the chair of the Commission on his appointment and reiterated Ms Mothapo’s point of the Commissioners needing to work together. He thanked Prof Majola for taking responsibility for the mistakes of the Commission and asked what the Commission was doing in terms of redress for the affected families and to create awareness to prevent a repeat of the tragedy. He noted that legislative intervention should be considered.

Ms C Pilane-Majake (ANC) congratulated the new Commissioners on their appointments and extended her condolences to the families of the victims. She said that finger pointing was not productive and that everyone must accept responsibility for what happened. She encouraged the Commission to look for ways to improve their organisation and make meaningful interventions. She pointed out that the Commission is not being asked to duplicate the work already being done by other organisations because that would be a waste of resources.

Mr M Maila (ANC) congratulated the chair of the Commission and the other Commissioners on their appointment. He emphasised the need for a healing process and asked that the process be facilitated or assisted by the Commission to ensure closure. He called on the Commission to ensure that the recommendations of the Health Ombuds are implemented.

Prof Majola thanked the Committee members for their comments and suggestions. He apologised for his decision to leave some of the Commissioners behind, saying that he understood this meeting to be a specific one on a specific topic so he was not aware that all the Commissioners were required to attend and therefore did not want to waste money flying them down due to the already dwindling resources of the Commission. However, if in future Parliament wanted all the Commissioners present, he would ensure that.

Prof Majola pointed out that he was not saying the Commission made no mistakes, he said he has spoken to his staff and they have all admitted there were things the Commission could have done better. He reiterated that resource constraints are a major obstacle so if other organisations are already handling something the Commission might choose to focus on something else. He explained that he did not intend to blame the courts but was merely pointing to the fact that in certain cases once a court has pronounced on something, the Commission can do very little.

On whether the Commission tested the information given by the Gauteng DoH, Prof Majola explained that there were certain things they could not test because they did not have the capacity to carry out inspections themselves. He said that the Commission had no reason to suspect it was being lied to. They inspected Precious Angels and by that time the Health Ombuds had been established so the Commission presented it with all its information for them to move forward with. He reiterated that work was done but that the Commission could have done better and he apologised for that.

Prof Majola admitted that the Commission did not do any litigation on the matter and was not sure why that was the case but pointed out that litigation is expensive and slow. He mentioned again the need for resources and asked for the support of the Committee in that regard. The Commission was committed to working collectively and thanked Mr Bongo for his recommendation to look into legislative means of tightening things up. He replied that the Commission was involved in monitoring the implementation on the Health Ombuds recommendations and the issue of redress and healing. He then handed over to his colleague.

Ms Chantal Kisoon, SAHRC Chief Operations Officer, noted that mental health care is a constitutional right and that whether or not that constitutional right is being respected must be looked at deeply for the root causes of this tragedy in order to learn from it.

Commissioner Andre Gaum responded to Ms Breytenbach and explained that it was important to note that the current Commissioners were trying to figure out what happened as they were not present during the matter. He explained that once the inspection of Precious Angels took place, the Commission wrote to the Department and the Health Department said the patients had been moved therefore the place was not abandoned and that the patients were being taken care of. He noted that the Commission has no binding powers and that should be reconsidered. In conclusion, he said that the Commissioners would be acting as a collective and that the Commission intended to be more visible at grassroots level.

Ms Breytenbach replied that it is clear the Department could not be trusted as they lied to everyone and therefore she was not interested in hearing about their replies. She wanted to know what the Commission did, specifically during the inspection of Precious Angels; she wanted to know what their findings were.

Mr Bongo raised a point of order telling the Chairperson that Ms Breytenbach's line of questioning was unfair because she was asking the new Commissioners specific questions which the old Commissioners would have the answers to.

Ms Breytenbach continued, saying that the Commission had many powers and that they should look at them and understand them in order to use them effectively next time.

Ms Pilane-Majake warned against encouraging the Commission to duplicate the work of other organisations because it is a waste of money. She explained that the Commission should look at the Health Ombuds report and see how they can improve things moving forward. She implored the Committee to hear the Commission’s call for funding and said that the Committee should assist them in this regard.

The Chairperson said that bearing in mind the Commission’s lack of resources, it cannot be expected to inspect every NGO, and instead, an audit of NGOs should be called for. He noted that the Chapter Nine institutions are meant to assist government but many often adopt an adversarial attitude in opposition to government which is not helpful. He said that giving Chapter Nine institutions binding powers would mean a lot of litigation regarding people opposing their orders. For funding, he suggested that the various Chapter Nine institutions share resources where possible and suggested a meeting between all the institutions.

The Chairperson suggested the Committee now move on to the next matter saying it has been agreed that a more dynamic relationship needs to be established with the Chapter Nine institutions in order to improve the way they work.

Prof Majola noted that one of the observations the new Commissioners have made is that the Commission needs to be more visible. To that end they proposed making a Commissioner visible and available in each province so that each province has someone responsible for it. There was the suggestion of having full-time and part-time Commissioners. He then asked the Committee for guidance or suggestions on the matter.

Ms Kisoon pointed out that everyone was on the same side and that they needed to work together and needed guidance from the Committee.

Commissioner Gaum said that it was important to hear the Committee’s opinion and reiterated the Commission’s wish to be more visible and hands on, working at a grassroots level.

Mr Bongo suggested that the Commission focus on organisational design and think carefully about the implementation of full-time and part-time positions.

Ms Pilane-Majake said that South Africans know their rights but not their responsibilities and it is resulting in a culture of entitlement and dependency which needs to be balanced out. She stressed the importance of building accountability mechanisms into the workings of the Commission.

The Chairperson questioned the practicability of provincial Commissioners saying he thought it would take them away from working as a collective. The SAHRC chairperson should be able to deploy Commissioners to where they are needed as they are needed. He used the City of Johannesburg as an example explaining that there are regional managers but the core staff are in one place and are deployed as needed. He said it was up to the Commission to choose an organisational design but that he felt a strong centre was important.

The Chairperson noted the need for Chapter Nine institutions to be of more assistance to government and said that a meeting would be set up with the forum of Chapter Nine institutions to see to that. He thanked the delegation for their briefing.

Meeting adjourned.