Minister of Health on Forced Sterilisation of Women living with HIV/AIDS in South Africa

Meeting report

Introductory comments

Chairperson Dhlomo welcomed Members to the Joint Portfolio Committee virtual meeting, and said that the Minister, Dr Zweli Mkhize, and the National Department of Health (NDOH) would brief the Committees. The Chairperson of the Portfolio Committee on Women, Youth and Persons with Disabilities, Ms Ndaba, would take over to introduce and indicate the presence of Members of her Committee before inviting the Minister to brief the Committees. He said that it was very interesting that Chairperson Ndaba had more information on the topic that the Committees were going to discuss because her Committee had been briefed by the Commission for Gender Equality (CGE) on this matter. Her opening remarks would be inclusive of this and would be useful to the Members of the Committees. 

Chairperson Ndaba said this meeting had been arranged because of the report that was tabled by the CGE to her Committee. Their discussions had also been reported in the media. She asked Chairperson Dhlomo if the CGE had tried to present the report to the Health Committee. She handed over to the Minister.   

Minister’s summary of CGE report 

The Minister expressed his appreciation at being able to share the progress report on this matter. The Department had been receiving questions and requests from Members of the Portfolio Committee to deal with the issue of forced sterilisation, including queries from the media. 

He provided a brief summary of this issue. The NDOH had had a discussion with the CGE when it released a statement. It had invited the CGE to a meeting earlier in the year, where it had shown the Department the report it had compiled. At the time, the report had been a bit difficult to comprehend, so the Department had asked for further information from the CGE. Unfortunately, COVID-19 had emerged and in the process the Department ended up not having much communication with the CGE. When it did, the Department was able to get more clarity on the matter, and had taken it seriously. 

The Minister explained that it was important to mention that there was no policy in the Department that would allow any woman to be forcefully sterilised for any reason. The issue of sterilisation was governed by law, and therefore it had to be based on consent, signed and witnessed, and it must be done before the operation was conducted. Only under a few extreme situations of life-saving emergency interventions would a woman end up with the capacity to procreate being terminated by the surgical intervention.. The Department was concerned about this matter, although it had noticed that efforts to try and investigate it had not produced any concrete evidence. 

Although there have been several complaints reported, the Department was not privy to the affidavits of those individuals, and in some instances not all of the individuals involved were identified. The CGE had done some investigative work with some officials in the Department, and there had been debates about whether there was adequate cooperation. The Minister explained that when he looked at the matter after this, he got a sense that this was a difficult investigation. This was firstly because the allegations or complaints referred to events many years ago, for which records were not available and many of the individuals who would have been in the service at that time may either have retired, passed away, or maybe could not even remember much about what would have happened. The Department had taken the matter up and gone into all the records in the Department, and had interviewed all the people who could have been involved at the time. This had come to more or less the same end -- that the records were not easy to find because of the time lapse. 

The Department had decided to take an approach that said it would take forward the recommendation of the CGE, which the Director-General (DG) would walk through to indicate what the Department had done. It had taken all the steps that were recommended by the CGE and in this process, it had set up an additional process to be able to further analyse whatever information was available. The Minister said that he was very grateful that the CGE was now willing to share some of the affidavits which had just come in over the past few days, so the Department would still be doing work on the issue. 

The presentation by the DG would indicate how the Department had dealt with the recommendations. It had dealt with almost all of the recommendations from the CGE, and had taken further steps which it believed would be important in defending the human rights of all individuals, especially women, to ensure that all of those steps were taken. This would indicate what it would be doing going forward. He asked the DG to make the presentation, which would be followed by the Minister’s comments and opened up for further clarification and questions from Members. 

NDOH on implementation of CGE recommendations 

Dr Sandile Buthelezi, DG, NDOH, said that the Minister had covered the background, where there had been some complaints of alleged forced and/or coerced sterilisation in two provinces. The CGE went through an investigation process, which was later found to have been jointly done with the Department. A draft report was shared with the NDOH prior to the production of the final report, which was released in February. However, there were no inputs from the Department, despite several follow-ups from the CGE. When the report was released in February, the Minister, the Deputy Minister, and the Ministry officials were seeing the report for the first time. The Department was doing some work to correct this issue. After receiving the report, the Minister met with the CGE and appointed two advocates in March to provide an opinion on the matter. With the disruption of COVID-19, the matter of getting the opinion was not finalised. 

The Minister wrote to the CGE in August to request more information on the matter, and to synthesise and process the recommendations. During the same period, after obtaining the names of the 18 complainants whose complaints had been investigated by the CGE, the Minister wrote to all the affected hospitals’ chief executive officers (CEOs) to make available all hospital records and patients’ files to his office so that this could be followed up. 

Of those 18 complainants: nine patient files were located. Three of the patient’s names were found in the hospital admission register, with no files, while six of the complainants could not be located through the hospital admission register and/or patient files about the victims. To follow up on this, a renowned professor, Prof Sebitloane, who was a Head of Department, was asked to do an independent assessment of the available records to interrogate the files, review the medical history, and check whether the consent forms had been signed and where it was signed, to interrogate if it was medically reasonable and justified for those patients to be sterilised. This included identifying the clinicians and healthcare workers that were involved in the procedure. 

To ensure completeness on this matter, the Minister wrote to the CGE to request the affidavits deposed by the complainants, to assist him in understanding the nature and details of each complaint. This was important, as not all the patient files were obtained. The CGE had provided the affidavits, even though the Department had received only 14 of those that were reported to be there. These affidavits had been received in November, and the task team was reviewing them to get a deeper understanding, as part of taking the matter forward. 

The first two of the CGE’s recommendations were looking at the two statutory councils that were responsible and were tasked with managing the conduct of health professionals – the Health Professions Council of South Africa (HPCSA) and the South African Nursing Council (SANC). The Minister wrote to these two statutory councils to establish if they had seen the report and to check the progress they had made. In the CGE’s recent press release, it mentioned that it had interacted with these two statutory councils on the matter. 

The third recommendation was looking at the provisions of the Sterilisation Act, allowing the Department to ensure that it checked if it was relevant. The NDOH had to report to the CGE within three months of receipt of this report as to what concrete steps it would take in order to ensure the eradication of the harmful practice of forced sterilisation. 

Dr Buthelezi moved to recommendation six, and explained that he would come back to the fourth and fifth recommendations. The sixth recommendation asked the Department to look at the consent forms to check whether they were in line with the guidelines provided by International Federation of Gynaecology and Obstetrics, and standardised for all sterilisation procedures. It requested that the NDOH should print consent forms in all official languages, and the explanation around the procedure, particularly its irreversible nature, should be given in the patient’s language of choice. This must be executed and attested to. He added that in his recent meeting with the CGE, it had requested the Department to consider the translation of these forms into Braille. 

The seventh recommendation was that the Department must make it an operational policy requirement that where a patient agreed to sterilization, they must be given a “cooling off” period in order to fully appreciate the risks and consequences of the sterilisation procedure.

The next recommendation was the standard timeframes which should be put in place on when the discussion around sterilisation should take place. Patients could not be informed about this process minutes before going to theatre. Patients must also be informed that they were at liberty to change their minds at any time before the procedure took place.

On the implementation progress of recommendations three, six, seven and eight, a legal opinion had been obtained, advising on the appropriateness of the Sterilisation Act and the provisions on consent. Both the National Health and the Sterilisation Act highlight the importance of consent prior to a procedure being performed. The Department had reviewed the consent forms, and experts had approved them. Translation of the forms into different languages was currently in process with the Pan South African Language Board (PanSALB) and would be standardised across the country. These forms were now ready after being translated, and the Department would take it further from here.

A standard operating procedure to be followed by all health care workers (HCWs) in public health facilities for sterilisation procedures was being developed. This was supposed to have been presented yesterday to the National Health Council. It was already there, but the Department had to clear a few issues before then. However, it had shared all these documents with the CGE and informed it that this was still a work in progress. Once they were signed off, they would be the final documents in place. The Department had shared the documents that were already there, because the CGE had requested to see that it was dealing with the matter.

According to recommendations four and five, the Department, upon receipt of this report, must facilitate dialogue between itself and the complainants to find ways of providing redress to the complainants. The CGE would present this report as part of its petition to the South African Law Reform Commission (SALRC) for amendments to legislation that ensured consent was properly obtained -- such as counselling prior to consent, the timing of obtaining consent, and the compulsory information that must be provided. The Minister was finalising the appointment of a team consisting of an obstetrician, a psychologist, a social worker and a religious leader, which would start with the engagements and would offer emotional and spiritual counselling to the complainants, and would establish what further remedy was required within the ambit of the law on the redress process.  

Recommendation nine requested the Department to ensure that its filing systems, both manual and electronic, were standardised for ease of coordination. Feedback to the latter must be provided within three months from date of this report. 

On the progress, this was a broader approach to the amendment and the digitalisation of the health patient records, which was part of the National Health Insurance (NHI). This work was being done, and there was some progress, as indicated in the annual report. It was a process of ensuring that it integrated hospital patient information systems so that a patient’s history and any signed consent forms could be kept in the system and easily retrieved by authorised health workers who had access to the system, and who were treating the patient at any public health facility. This was an ongoing project that had been targeted for implementation in the current Medium Term Strategic Framework (MTSF) period. 

Dr Buthelezi said that on 12 November, the team, led by himself, had met with the Chairperson of the CGE. The CGE was briefed and both entities had agreed on a way forward. The DG said that there were now extra complaints that had come in, and the CGE wanted to work with the Department to investigate these additional complaints that had since surfaced. 

Minister Mkhize explained that this presentation indicated the state of the Department’s implementation of the CGE’s recommendations, which had also been shared with the CGE. The Department had indicated that it would continue to process the issue and that Professor Sebitloane, who was managing the analysis, would continuously assess the extent to which concrete evidence could be found to support the allegations, and in the process, channel it accordingly. 

He commented that as government, the Department would be at the forefront of ensuring that if there was any breach of human rights, there was redress, and that the policies were monitored properly so that any conduct that was outside the provisions of the policy was curbed. The Department would continue its engagement, but the real challenge with this case had been the search for information and the availability of records that were very old, including more detailed information that could allow the Department to reconstruct some of those situations. 

The Minister observed that it was important to share the progress at this point, and handed back to the Chairperson for further guidance on the matter.   

Chairperson Ndaba said she had one question for the Department before handing over to the Members to ask questions -- what was the role of the Ombudsman, given the finding that had emerged from CGE’s report?

Minister Mkhize thanked Chairperson Ndaba for her question, and replied that he should have mentioned this issue. He explained that the Ombudsman would become relevant only when the Department had something concrete that indicated that there was any form of transgression that would need to be investigated. The Department would refer the matters at this level where necessary. He said that if any of the complainants filed directly to the Ombudsman on the same issue, it would still mean that the Department would have to analyse it and give as much of that information to the Ombudsman. The role of the Ombudsman was once any of these complaints were analysed and the Department felt that there was a need for the Ombudsman to go further into a matter, based on its analysis or by this team, then this was when it became quite relevant at that point. 

Chairperson Ndaba thanked the Minister for his response, and gave the Members an opportunity to ask questions. 

Discussion

Ms H Ismail (DA) said that the presentation indicated that not all patients’ files were easily available, which showed that there was no clear indication of the number of women who were affected and violated throughout the country. Had the NDOH asked each and every hospital? This would give the Committees a clear understanding of how many women were sterilised at each hospital in that timeframe, and those that were HIV positive. She commented that there were many women who had suffered but had not come forward, and some who had come forward at a later stage. 

On the issue of the doctors and nurses who were implicated and who may have already lapsed practice, she asked if the Department knew exactly how many were implicated. Did the Department have any contact with them or were they still in practice? What had the Department done to address this issue with them? 

Had anything been done by the Department to reach out to those patients whose affidavit files had already been received so that they could receive some psychological support to assist them throughout their life going forward? How was the Department going to address the allegations of patients’ files disappearing and ensuring that this did not happen again? What consequence management had been put in place by the Department to ensure that it did not face the same predicament again?

She commented that good recommendations had been set out, and asked if there were any time lines for all the recommendations and for their implementation. She also wanted to know how many new affidavits were handed over to the task team, and if the oversight committee could receive quarterly reports on this matter. 

Ms E Wilson (DA) had two major concerns. Firstly, the fact that anybody had been sterilised without their permission was “the most unholy breach of any human rights.” This was a decision that a person was entitled to make by themselves, and the fact that anybody even thought that they could sterilise a person without permission was incomprehensible. It was shocking that this had happened. 

She was also concerned that there were no details or files available for these patients. She noted the Minister’s and the DG’s response, that some of these were old and that the files could not be traced, but argued that this was not acceptable. She said it showed what “an unholy mess” the Department, the hospitals and the clinics were in, and had been in for a long time, as files could not even be found. She had done oversight in hospitals where she had found “boxes of files stacked in toilets.” She proposed that the Department should start with the very basics and sort out the mess in its systems

She said that the women who had been treated like this and were unable to have children again, regardless of whether they wanted to or not, needed to have some degree of compensation. Those involved needed to be held account, even if they had retired. She agreed that the Committee must have a regular report on this so that it knew exactly what was being done about it and who was being held accountable. She described the situation as “horrific,” and on the same level as gender-based violence, and said “it was unacceptable, a breach of human rights, and something must be done about this urgently.” 

Chairperson Ndaba asked Ms Wilson to provide the names of the specific hospitals and clinics where she had discovered files kept in toilets so that the Department could deal with this immediately. 

Ms Wilson responded that it was a very long list, and agreed to provide the details to Chairperson Ndaba.

Mr P van Staden (FF+) commented that this was a very serious matter, and said that what was happening with the women in this country was a huge violation of human rights. This was the worst case of a violation of human rights in South Africa that he had ever encountered in his life. It was very disturbing to learn that such things were still happening in the democratic South Africa of today in the hospitals and clinics. He presumed that the Department had conducted its own investigation into this matter and if so, he asked when and how far this investigation was. Would it be taken further so that the law enforcement authorities could do what needed to be done so that justice could be served, and the necessary arrests could be made to the people who had committed these violations? He also requested that the Committees get an updated monthly or quarterly report on these ongoing investigations. 

Ms S Gwarube (DA) said that there had been a strained relationship between the CGE and the Department over this matter, and that at some point the CGE had criticised the Department for not cooperating. She asked the Minister how this had this been remedied. These two entities were working together on this investigation, and it was important that they were on the same page. 

The location of the complainants and the returns on locating these people was dismal. The fact that only three out of 48 complainants could be located was an indictment of the Department’s e-filing system, which was not something that was new. This was a policy and a strategy that the Department had had for a couple of years now. The fact that people’s medical files could not be located pointed to a crisis. What was going to be important, in addition to the CGE’s recommendations and the Department’s implementation of some of them, was for the Department to take this matter further. She proposed that the Department should ask women who had been victims of this “gross violation of their human rights” to come forward to give evidence to this effect. She argued that it was not enough to simply deal with the complaints that were in existence, and that this process must be opened up. This was something that had been happening in the country for a very long time, and if the Department was serious about stamping it out in its facilities, and about ensuring that those people received the reconciliation and the compensation that they deserved, it would open up this process. 

The Minister’s clarification on the involvement of the Health Ombudsman suggested that it was not involved at this level of the investigation yet, though this could be escalated to the Ombudsman. She contended that the reconciliation process that the Department was seeking to rollout was hardly adequate for the crime that had been committed. An interface with the Department and support from religious leaders was not what some of these patients would need -- some would need to be compensated and must be given an assurance that their complaints would be escalated to the various channels, even if it meant that they were able to sue for medical-legal costs. This could not be settled as a separate matter, because this was a gross violation of human rights and the Department must be open to accepting the blame for this and for some of what had happened.

Dr S Thembekwayo (EFF) said that old lost records, inhumane and degrading treatment, emotionally unforgettable scars, and the socially and economically affected lives of the poor black women, should be taken into consideration. This also included accountability on the part of the perpetrators, inclusive of the compensation of those affected. She noted that the Minister had said that according to the policy, no one would be allowed to undergo a forceful operation without their consent being witnessed and given a chance to sign for it. The Minister had not explained the issue of “lifesaving emergency,” because this would be an escape clause for doctors to claim that they were saving lives during an emergency. Was the process of witnessing and signing not important or considered for “a lifesaving emergency?” 

The DG’s report had referred to only 18 complainants, while the documented cases reported by the CGE were 48, so where were the other 30? The Committees were in possession of the list of the 48, which had its own affidavits that indicated where the operations were done, by whom and when. She said that the Committees were not interested in knowing if the doctors had died or had relocated, as they were interested in the accountability of these doctors.

Ms A Gela (ANC) asked the Minister if a person could be sterilised without signing the proper document or being consulted on whether they wanted to be sterilised or not. She said that in public facilities, if patients wanted to be sterilised, they were asked several times if they had considered what they wanted to do. She also noted concern on the issue of 48 complaints, but that only 18 were received. 

She was happy that the Minister was appointing a team that would address this matter so that the Committees could get reports and be updated on what was happening about sterilisation.

She explained that in her own experience about getting this procedure, she had been asked several times if she had considered and understood what she wanted to do. Because of her personal experience, she did not agree with the issue that people were forced to do the sterilisation without being considered. She noted that the updated report would indicate what was happening in the public facilities. 

Mr T Munyai (ANC) referred to the first slide of the presentation, which had stated that the Department acknowledged that it had briefed Advocates T Ngcukaitobi and Y Peer. He said that he had a report from the SABC news that showed Adv Ngcukaitobi parading with Adv Dali Mpofu as the representative of the women that had been sterilized, and asked if this presented a conflict of interest. If this was so, he proposed that the Department report the advocate to the Judicial Commission because this was unethical, and it was a conflict of interest. 

Dr Thembekwayo called a point of order, arguing that this had nothing to do with what Dali Mpofu was doing, and asked Mr Munyai to withdraw his statement. 

Chairperson Ndaba allowed Mr Munyai to continue.

Mr Munyai explained that if Adv Ngcukaitobi was briefed by the Department, and was parading himself and trying to represent the sterilised people, this constituted a conflict of interest and that the Department, through its legal team, must report him to the Judicial Commission because this was not allowed in law. 

He said the CGE’s report was poorly written, as it did not have the names of the people, and had many weaknesses. He proposed that the Committees engage with the CGE on this matter, because the report was poor and had several gaps. He commented that there were some organisations that were mobilising people and trying to bring them as complainants before the Department, but this was an issue that had to be discussed on another day. 

Mr Munyai claimed that some of the political parties were trying to parade as human rights activists, and that some of the organisations were suppressive their links to the apartheid regime, forgetting that it was the ANC government that had fought for human rights.  

He said that there could not be regular reporting on this matter, as if the Department was reopening a commission. This issue would be processed, and when the Committee needed a report, it should be informed, but to have a report as if the Committee was opening a commission should not be allowed. It was not the policy of the Department to sterilise people without their consent. 

On the issue of medical records, he said a Member at a previous Portfolio Committee meeting had raised the digitalisation programme of the Department, and this was a recommendation of the Department as a way to deal with these issues. He did not think that the Committee could blame the Department for its inheritance of a paper-based system.

Mr van Staden called a point of order, and clarified that the Committee was not blaming the Department for these issues. He explained that he had asked if the NDOH was investigating these matters. 

Mr Munyai responded that he had not been referring to Mr van Staden’s comment, so he did not understand why he was raising this issue. 

Chairperson Ndaba asked Mr Munyai to wrap up his questions.

Mr Munyai responded that the Committees should endorse the recommendations of the Department, and said it was doing its best to act in the interests of the people, as outlined by the CGE. The Department must engage the CGE further, because the report was incomplete due to the gaps that had been observed. 

Ms F Masiko (ANC) raised a longstanding concern as a Member of the Portfolio Committee for Women which was that on repeated occasions, the CGE had raised the matter that it was struggling to meet with the Department. She was pleased to learn that despite the late submission of the report to the Department, progress had been made on the implementation of the recommendations that had emerged from the findings. 

Everything could not be left to the Department, as it also needs assistance from the CGE. She said that some of these issues really did not fall within its mandate, and this was the issue of how widespread this practice in the country was. She noted Ms Ismail’s concern on how many women had really been affected. There was concern over the new cases that were emerging. The problem was that there was no clear indication on the number of cases. In addressing this, there would be sporadic cases emerging across the country, because the report was currently covering only two provinces, Gauteng and KwaZulu-Natal (KZN). It was important for the CGE to take the Committees into its confidence on what approach was going to be used in dealing with the new cases that were coming up, or whether the investigation would now be rolled out throughout the provinces. 

The CGE had reported that it had engaged the regulating bodies, which were the HPCSA and the SANC, on its medical staff who had breached their duty of care. Ms Masiko said that these bodies had not responded to the reports that the CGE had forwarded to them, and asked if the Department had held any bilateral talks with these regulating bodies on these reports. 

How would the two oversight Committees on Health and Women plan to receive the progress reports from the Department and the CGE? It was important for these Committees to add those timelines to perform its oversight duties. It was important for the Committees to endorse the recommendations of the Department and the status of the implementation of the recommendations. 

Ms Masiko said some of the recommendations were long-term and others were short-term. A short-term recommendation that she was happy with and would like to see implemented with urgency, was the issue of addressing the review of the consent forms in all official languages. It was reported that in most cases these women had signed their consent, but the issue was that some of them did not understand what they had been signing for. While the Committees were progressing with dealing with the report, it was important for the Department to start reviewing some of the issues that had proved to be a problem, as reported in the findings. This meant ensuring that all the consent forms were written in all the official languages so that women could both interpret and agree to something that they fully understood.    

Ms P Sonti (EFF) raised questions and concerns in her home language.  

Ms N Sharif (DA) reminded the Members that the CGE was a Chapter 9 institution, and given a mandate by the Constitution to investigate and report on violations of women’s rights, and this was exactly what it had been doing. For Members to try and minimise and poke holes in the report of the CGE could not be accepted. It was the CGE’s job and its mandate to address and report to Parliament on the gross violations of women’s rights. Women’s rights were human rights, so this was not only about the women involved, as every single person had a responsibility to deal with this matter. She asked Minister why it had taken so long for the Department to cooperate with the CGE. It was not as if the NDOH had learned about this report only in March when it was released, as this investigation had been happening and ongoing since 2017. 

She said the CGE report and the investigation provided the evidence. She and Chairperson Ndaba had gone through the report in March 2020, and the CGE had come to report to the Committee on Women and provided the evidence on what had been happening. The Minister had agreed this morning in his address that the Department had been given the affidavits, so the fact that they needed to prove that it was happening was long gone. It was happening. The question now was what should be done. How could they ensure that these women were assisted? How do they ensure that this would never happen again in any of the hospitals? 

Lost files were a massive problem, and she was not surprised that the Department had such inadequate record-keeping. How would it ensure that this did not happen again? What technological advancements were being used for assistance? She said that it was 2020, and that surely the Department must be able to use the “cloud” or technological advancements to ensure that there was an effective public service. It could not be that medical staff were writing on paper and filing it in toilets. This was madness. She noted her frustration on this matter. 

Ms Sharif asserted that consent was the main source of the problem. When adequate consent was not provided, these issues happened. The process of signing these consent forms was problematic. Civilians often could not understand what these consent forms were saying. There was always a rush when these forms needed to be signed, and there was no explanation on what these women were signing. These women often found out what they had signed for after they came out of surgery because they did not understand what they were signing. Had the Department interrogated and scrutinised the provisions of the Sterilisation Act, as well as the consent forms? Had it checked and analysed these consent forms and seen where some of the gaps were? 

She echoed Ms Masiko’s question on whether these consent forms would be available in all official languages. What interventions had the Department put in place to allow for a cooling-off period so that women could take their time to understand the consent forms, and to balance what the risks of having and/or not having the sterilization were? Was this happening? If not, why was it not happening?  

In the nine months since the report had been released in March 2020, what had the Department done to train doctors and nurses to ensure that this did not happen again?

The Minister told the meeting that he had to present a corona virus update report with the DG to the National Corona Virus Council in a few minutes. He requested that the DG was released to stand in on his behalf. This would allow the Minister to continue to address the Members’ questions and concerns on the CGE report.  

Ms M Hlengwa (IFP) commented that this matter had angered women. The Committees had to deal with a way forward together. The issue of 48 complaints and 18 received represented a huge gap, and advocacy must be done on this matter. She said it was the Committee’s duty to go out and do advocacy and provide thorough education. Some years ago, there was family planning that everyone had to go through. When this family planning was discussed, the medical practitioners would ask whether there was an agreement. On the current matter, there was no agreement, nor advocacy and education. This showed a lack of accountability and a lack of leadership, so the Committee, representing the people, must assist the Department and the CGE to come together and perform this advocacy.   

Ms T Mgweba (ANC) referred to two issues. The first concern was that all the recommendations by the CGE had been presented. How many of these recommendations had been implemented by the Department? She expected the Department to clear up any doubts that it was not attending to this matter. Were there immediate and long-term measures that had been put in place by the Department to protect these vulnerable women? 

She supported and endorsed the presentation by the Department with the recommendations from the CGE, and proposed that both Committees give the Department an opportunity to do a proper investigation without doubting its work. She supported Mr Munyai’s statement on engaging the CGE for further discussions, and proposed that the Committees invite the CGE to appear before both Portfolio Committees at the next meeting for further discussions. She concluded that she was comfortable with the Department’s presentation, and that the Members must give it the benefit of the doubt to deal with this matter urgently. The responsibility of both Portfolio Committees was to monitor and evaluate the Department’s responsibility to deal with this matter once and for all. 

Chairperson Dhlomo said that he had communicated with the Minister yesterday. The Minister was now in the Eastern Cape, and he expected Members to ask fewer questions to give him an opportunity to provide an update of what was happening in the Eastern Cape. Members had asked questions whose answers were embedded in the report. He said that a week ago, the Department had provided a report on its annual performance in which there was a clear indication of what the Department had done on electronic records. With electronic records, there had to be a start somewhere. The records were kept in boxes by those running the system in the past. He said that some Members did not believe that the Department had computers in all clinics, and that all records were now being done electronically. This was a start to removing those boxes. 

This report pointed to issues that did not just happen yesterday or last year -- these were issues that had happened a long time ago, from what was gathered from the report. The Committees must not be forgetful that there was work in progress on electronic data from the Department into the system. 

He noted a sense of comfort from the report that had been raised by the Minister, that it was not the policy of the Department to sterilise without consent. Those who were working in this area needed to be reminded that they did not need to be retrained, but that it was part of the policy. It was expected that the Department would adhere to the recommendations. Among other things, these indicate that Prof Sebitloane was working on the matter, supporting the Department and getting all the records cleared up. He cautioned Members from treating it as if it was a fait accompli on the numbers and what had happened. That was what the CGE had found, and this report had been tabled to the Department which was tasked to get the information and find out what was happening, before the Committee could make conclusions. Members’ recommendations for quarterly reports would be of great assistance on where it was going before it could make conclusions on what had really happened. 

Chairperson Ndaba reminded Members that the CGE was constituted by other commissioners, including doctors, but these individuals were not the ones who examined the patients. The Committee on Women had received a report from the CGE and raised concerns on the gaps in this report, and questioned the CGE on the issue of the Ombudsman. She noted that all the Members still did not know if the women were forcefully sterilised or not. The Department had been invited to this meeting to give the Committees a report on what it had done after receiving the report from the CGE. It was adhering to some of the recommendations by the CGE. She explained that what was critical to this Committee was that two provinces were mentioned in the report, yet it did not know who had commissioned the report and which doctors had examined the patients and confirmed that certain individuals were sterilized. What was the way forward that the Department needed to take?  

She said the Committee on Women had made a recommendation that the Department must investigate all provinces to find out if the same incidents had happened. It had also proposed that it obtain a full and detailed report from the Department on the patients to which the report had referred. She noted that the report had no names attached to it when the CGE had presented it to the Committee on Women. The Committee wanted the Department to cooperate with the CGE so that as a country, gross violations of human rights in any form could be curbed. The Department had to provide a full and detailed report, regardless of whether the people involved had died or were no longer there, so that the Committees could get the truth and get to the bottom of this matter. There was no government policy that gave any individual, whether a nursing personnel or a doctor, the right to operate on anybody without that patient’s consent. 

It was important to get to the bottom of this matter, and for the Department to inform the Committees whether it had obtained consent forms from patients. From her experience as a nurse, there was no way that a patient could undergo a major operation without a nurse explaining the whole procedure to the patient. Patients were also given an opportunity to go back home and think, as Ms Gela had pointed out. The patients could go home and consider the consequences when sterilisation was done. The current situation indicated that something unethical was happening in the health facilities, which was what had led the Committee to receiving this report. 

The Committee supported the recommendations that the Department had made on the investigations, and the printing of consent forms in all languages so that communities could understand when a nurse or a doctor was explaining a procedure to a patient as to why it was important for the patient to undergo that operation. If there was an element of some health professionals who had done this illegally without the patient’s consent, then further steps must be taken by the Department. Everybody had to account for his or her actions, together with the issue that was raised by Mr Munyai on advocates or lawyers or attorneys. Any professional person involved in any unethical behaviour must account for his or her actions.   

Chairperson Ndaba said these cases would be dealt with holistically. The Committee would invite the women who were said to have been forcefully sterilised by the Department, and conduct interviews. They would not examine the patients, because it was not within the Committee’s scope of practice. The Department would assist the Committee to confirm these cases, because statements could not be accepted without being questioned. The Department would have to investigate further and check whether all these women were sterilised, so that they knew what they were dealing with. The Committee could not simply take on this issue at the top without dealing with the details. It had to go deeper so that when the Department tabled a report, it knew the exact number of women, as some Members had indicated 48 while others had said 18 or 13. In some of the reports on the records of the Department, it had been indicated that the consent forms were there. The Committees could not deal with this issue in piecemeal. It was important to get the correct facts so that the medical personnel that had committed these violations could be charged and held accountable. 

Minister’s response 

Minister Mkhize thanked the Chairpersons and Members for their questions and comments. He said that neither the Portfolio Committee as public representatives or as citizens, nor the Department as part of government, would support any situation where anybody’s bodies were violated by sterilisation without their consent. It was important to draw this line so that the Committee did not deal with this matter as though there was any effort from the Department’s side to “wish this matter away,” or to try and prevent any information from being shared publicly. It was not useful if the Department and the Committees were going to deal with this matter based on suggesting that they were doubting each other’s bona fides as they dealt with it. 

He agreed with the Chairperson Ndaba’s comments, and commented that their experiences with these kinds of procedures were the same, and the expectations for everyone else were the same: that nobody’s body should be violated without consent. If there was any intervention to an individual, their consent was presumed, based on either a verbal request for intervention or a signed consent if the operation had implications on the person’s body and the working of their body, and also that it might have something to do with their rights. The issue of women who would get sterilised without any consent was not part of the government policy, and if it did happen, it did need to be investigated. This matter was being discussed, based on a set of complaints that came from the CGE.

The Department agreed that if there was anyone who would have been found to have done this without proper consent, action would have to be taken on them as a transgression and unethical conduct. It also agreed that the fact that there was an allegation did not necessarily mean that in fact the situation had happened. Among the people that there had been allegations about, the records had indicated that there were some with no consent but there was no record of any operation of that nature that had been done. This meant that the Department could not regard everything as alleged as though it was true, and therefore a process was in place. 

The explanation regarding people that might have been alive or retired should not be distorted. The Minister explained that when he raised this, he had said that “there were challenges in getting the records and unfortunately the Department cannot go by interviewing the individuals because those who could have been there at the time were no longer with the Department.” He clarified that this did not mean that there could not be an investigation because someone had retired. This should not be distorted -- the issue was trying to get the records. One of the ways was to go to the records of the institution and if not, to then try and find out from people who would have been part of that institution at the time, to see if they could recall. The Minister said that this was the basis on which the Department had raised the issue of staff who had retired or passed away, and it was not because the Department was saying that it could not act on it, so this should not be distorted. 

On the issue of the cooperation between the CGE and the Department, the Minister explained that there was a historical issue involved, and that this matter had been dragging for a while. He had tried to find out why there had been issues regarding cooperation. The issue had actually arisen from the fact that the CGE did not have adequate information which would assist the Department to get all the records. That was where the issue of poor cooperation had emerged. The Department had gone into that and indicated that action would be taken if anyone was found to have been uncooperative. The Department would continue to ensure that no one failed to cooperate. The problem of cooperation had been because of the way that the processes prior to this report had been conducted, and there had been a lot of misunderstandings. One was that the CGE report did not have names. This issue had been raised because the report was very difficult to understand as it was being tabled. Members would understand what he was referring to if this report had been read by them. 

Minister Mkhize said it was important to separate the issues of methodology from the real issue which all Members were concerned about, which was the abuse of human rights. To the extent that the abuse of human rights was alleged, the Committees and the Department needed to stand together to find out what had happened, even if there were issues of procedural inaccuracy or weaknesses in reports and so forth, to ensure that they did not deviate from focusing on this matter. The Department had tried to bridge this gap so that between itself and the CGE, it could do as much as possible to cooperate with one another in this process. He clarified that he had been the one to invite the CGE to present on the report, and this was when the dialogue between the Department and the CGE had started. In this process, it had moved to a point where the Department had requested names and details and so forth, but the CGE had again been unable to provide this. At some point last week, the Department had a Director-Generals meeting with the CGE to compare notes and to update it on the progress of its implementation of the things that had been raised in the recommendations. As expected, the Department had actually complied with what would have been expected, which was the implementation of the recommendations and to update the CGE on its progress on the matter.     

Responding to Chairperson Dhlomo’s comment on the patients’ electronic records, he said his was a huge task. The Committees must understand that this would not be a short-term process to get it fixed, because there were no records that were electronic in all the hospitals. When those files got lost, it was a historical issue that the Department was now trying to correct. The Department was trying to put up a whole electronic data system which covered from patients’ administrative registration records on the one side, looking at how it could also contain electronic clinical records, as well as the management of the health systems electronically. The Minister said that just yesterday, the Department was introducing a final policy that would ensure that every provincial government, whatever system that it employed, must be interoperable with the mainframe in all of the other provinces so that it standardised a lot of these areas which were going to take the Department forward. He explained that issues of e-filing would take a while, but there was work to be done going forward. There was also a different amount of work going backwards, where the Department had to try and digitise all the records from the past. 

Going forward there was also the issue of lost records. The Minister commented that Members should not be surprised, as this had been the system all along, and it had to correct it going forward. At some point, the Department would have to have this system corrected and then it would be able to indicate the amount of time it would take to retrieve all the information. 

He echoed Chairperson Dhlomo’s comment that there was no policy of government to sterilise women without consent. It was important to note that not all who had claimed to have been sterilised had actually been sterilised. It did need to be investigated as indicated, but these allegations also had to be taken seriously.

Ms Mgweba’s question about protecting vulnerable women was an important point, as the Department was all about protecting women’s rights and human rights, and it should not lose focus on this. He agreed with all the Members’ concerns on this aspect. He also agreed that the Department must be given the opportunity to complete this investigation. It may require frequent reports that might not take the Department very far. There should be substantive progress that was able to bring the Department back to give the Committee a decent report. 

On the issues raised by Ms Hlengwa, he said the CGE and the Department had now come together, and they were now able to work together on this matter. The CGE could do investigations only if it was working with the Department, because this was where all the expertise lay. There should not be a reason for too much of divergence, because there must be one line. He agreed with her statement that issues of accountability and leadership must be considered. 

Dealing with the rest of the questions, the Minister said that the nature of the report did not provide enough information to be able to even identify any individual who could have been culpable or liable for any action. Even though it had asked the HPCSA and the SANC to investigate the matter, the flaw was that these institutions could investigate a particular individual who was a member of the Council based on unethical conduct when the name and the action was reported. In the CGE report, there was no such detail, and therefore the Department had had a discussion with the HPCSA and the SANC, which noted that it received the report, and indicated that because there was a lot of information that was still needed, it would be useful for these entities to keep sharing any information that it had. 

On the question of which doctors were implicated, the Minister responded that nobody knew because the CGE report did not have this information, and the available records that the Department currently had did not really show any clear line of culpability. He added that this was very important in dealing with this matter. 

The patients’ files were not available, and the Department was reconstructing them where it could. The affidavits from the patients were not available to the Department. He explained that the Department had received the affidavits only two to three days ago, after the Chairperson of the CGE had written to the Department to indicate that it had the authority to provide access to the affidavits. All that information was necessary to investigate this issue, but it was not available at the time. Part of the debate between the CGE and the Department had been about this issue, which was why it had been dragging on. The other reason was the fact that the records were very difficult to obtain. This had been raised several times and explained when reporting on the progress of the Department’s e-filing system. 

A clear indication of the actual number of women that had been sterilised would be known only after a proper investigation had been done. In this case, the Department was working on the number of women who had raised complaints. Those who had raised complaints were the ones that the Department was investigating. The Minister said he was not sure of the implications of going to every province when the Department was already struggling with the ones where it had some kind of lead information, and it would be problematic to go to others when it did not even have any allegations. This was something that the Department would have to look at and assess how it could deal with it. 

On the issue of the recommendations from the CGE, the Department had acted on all of them. Some were at different levels, while others were in progress. It would be working with the CGE to ensure that it was satisfied with the Department’s progress and implementation.  

The possibility that anybody could have gone ahead and done the sterilisations without consent was unthinkable. But if it had happened, the Department needed to investigate it. He agreed with all those who felt that the matter did need urgent attention. The investigation could be seen in various ways. An investigation had been done by the CGE, but he thought that “it was inadequate”. What the Department was doing would move it forward, but it may also not be adequate because it would depend on how many records it was able to find, but it would continue with it. 

At the time when the CGE had raised the 38 complaints, all that it could bring with concrete information was the 18. It was expected that the Department could fill up the gaps from the affidavits. If there were new affidavits, the numbers of 38 or 48 may not be the final answer. The Department must work on this with the understanding that it would find out what had happened. It was important to avoid the sweeping statements that all women had experienced this issue, because this had to be based on the available information so that the Department could investigate. 

The issue of the Ombudsperson was part of the process, but it was not at the forefront. The Department had indicated that there was going to be a need for it to go through a number of people. If people did not need religious counselling, this was not a problem. It would have psychologists as well. The Department had been asked to work on engagement and counselling, and it had provided what it believed was best.

On the question of what lifesaving emergencies were, the Minister said that there was no sterilisation that could be undertaken based on an emergency intervention. However, certain emergency interventions could result in sterilisation. He explained that there were only two instances that he could think of, but that this did not mean that this was all. The first was an ectopic pregnancy, where there was already a damaged fallopian tube on the one side. In the intervention, saving someone from an ectopic pregnancy meant that the medical practitioner must tie up and ligate the one tube where the pregnancy was. When the person emerged from the operation, they would not know that they may not be able to fall pregnant after that, but it would be explained that the one tube was already damaged, and the other was an ectopic pregnancy, and therefore that meant that the person would not get another pregnancy through the normal channel. 

The second one was a situation where there was a uterine rupture where, in the process of delivery, the only process of stopping the bleeding or repairing the damage was to remove the uterus, but this could not wait until the person woke up because they would have lost their life. He clarified that these were not sterilisations, but rather interventions that would result in someone not being able to conceive. 

The Department was looking at the cases from a clinical understanding of whether it made sense that this was done or not, and not that there was a clear record that a person was forcefully sterilised. It had to assess whether it could even infer. This matter therefore could not be understood as a simple case or exercise. 

Women would be asked to be given time to talk about sterilisation. There were very few cases when women had to get an emergency consent form signed for this. This was generally not common, and this was how Members would be able to understand this. 

On the issue of the advocates, the Minister said that he would try to establish what had happened, and then the Department would follow it up. 

Referring to the CGE’s report and the apparent gaps, he said his was not a criticism, but rather being factual about it. The Department had worked together with the CGE so that it could close these gaps. At this point, there was good cooperation between these entities, especially since the Department had obtained the information that it had requested, and it was now able to take the matter forward. He said that the DG had informed him that the CGE was asking for other specialists to work with it on taking other investigations further. The Department would discuss this with the CGE, so there should not be a sense that there were any further tensions between these bodies. 

This investigation was not simple. At this point, there was no clear indication of who had done what. Even to confirm that the sterilisation did take place may not be easy in some instances. Investigations must be done at this level, even if there were allegations, which might not be simple. The Department had started to indicate what procedures would have to be done to confirm if this had happened or not. It also carried a risk to anaesthetise those people, and the question was whether the individual did want to go through a risk of anaesthesia for this matter to be confirmed or not. This was another issue.

There was also the matter of having to work out between the patient and the nurses or the professionals on the signed consent forms. The Department agreed with the CGE on going back and assessing the procedures, the language and explanations, and tightening up at that level. The Department had informed Prof Sebitloane that once it had done the report, this must be discussed with the Society of Gynaecologists and Obstetricians so that it widened the policy approach and closed the gaps as it went forward. It could close the gaps without having to find someone culpable in any way. If anyone was wrongfully operated on, the Department would ensure that those who were responsible took responsibility, and it would take the process through, as it would be justifiable. 

The Minister concluded his address and handed over to the Chairpersons. 

Chairperson Ndaba thanked the Minister, and took follow-up questions.

Follow-up questions 

Mr van Staden agreed with the Minister that if no consent forms were signed, or no opportunity given to the patient to go and think about such a matter, then it was done without permission and the patient’s human rights were violated. It was disturbing to hear that this was really happening in the hospitals and clinics. This needed to stop, investigations had to take place, and justice must take its course. He completely agreed with Chairperson Ndaba’s recommendations. This was a serious challenge that the Department was looking to tackle, but if it was tackled with a good heart and effectively, these matters could be stopped in the hospitals and clinics. 

Ms Sharif responded to the inadequacies that the Minister had pointed out in the CGE report. She asked if he believed that this was actually happening, or was he suggesting that the report did not give enough evidence to prove that this was happening.

Ms Gwarube commented that her concern was separate to that of the Committee on Women. On the crisis that was unfolding in the Eastern Cape, what had the Minister found in the Eastern Cape with the rising cases of COVID-19 and the apparent collapse of the system, particularly in the Nelson Mandela Bay area?

Mr Munyai said that the Minister’s responses had cleared up all the perceived allegations, because everything had to be scientifically proven. He said some of the Members would have come to a pre-conclusion as to what had happened, that some human rights had been violated, even before issues were properly clarified, and whether consent had been given or not. The Minister’s response had been helpful on this. He appreciated this response, because it gave the Committees clarity, rather than a lot of noise that sought to reach a conclusion before a specific matter had been fully investigated. 

Minister’s response 

The Minister said Mr Van Staden had raised an important point about accepting bona fides and good faith as the Department dealt with this matter. There could not be fighting about whether it was right or wrong for people to be sterilised without their permission. There was no question about this. It could not happen. Everyone was aware of the human rights enshrined in the Constitution, so this could not happen. It was important not to create an impression that amongst Members, some might not want to establish the truth on this matter. 

Responding to Ms Sharif, he said the allegations were strong enough to be investigated, and it should no longer be a matter of whether one believed it happened or not. It was important for the Department to find out what the truth was, and why the women were complaining that they had been violated. If these women said that had been, they needed to investigate until they could prove that it was not so. If that was the case, then everything else did not matter. He said that it must be assumed that there was merit in an allegation, even if there was no proof. However, if an investigation was carried out and no evidence was found, then this was different. They needed to move on the basis that whether one believed it or not it no longer mattered. What mattered was that the women were saying they were abused, and because they were saying so, their duty was to investigate what happened. 

In this case, it was no explanation for anyone to say that they had sterilised someone because they were HIV positive. There was no such policy. People must explain where they got this reasoning from if they were using this argument. He added that it was important to approach this matter sensitively, because it was possible that a misunderstanding could arise. It was possible that somebody could have done this, but this would be established with evidence. 

He agreed with Mr Munyai’s comment, and proposed that the Department work with scientific proof so that it knew what it was talking about. If the Department was given this opportunity, he was quite comfortable that it would get as much information as there was available when it worked together with the CGE. The understanding at this point was that both entities must get to the bottom of this matter. He raised two issues that had to be addressed. The first one was whether on could find conclusive evidence that there had been forced consent. If this was not found, this was where the clinic assessment came in of whether in a normal clinical practice, a sterilisation would be done under such circumstances. The issue would then be taken up at this level. He commented that this was the good faith involved in investigating this matter.

Regarding the Covid-19 situation in the Eastern Cape, he said the issue was very important, but there was no time to address it. All the provinces had their own peaks at different times. The Free State and the Northern Cape had their peaks last, so their numbers were still up. Most of the other provinces, including the Eastern Cape, were already showing much lower numbers. The country had moved from a level of 13 000 positive cases per day during the peak, and it had gone down to around 1 000 cases. Those numbers had started increasing, and this was mainly coming from the Eastern Cape and the Western Cape. The Eastern Cape was now responsible for between 50 and 55 percent of all new positive cases recorded. All the indications on the ground were that the number of people who were positive had increased, particularly in the Nelson Mandela Bay area. It was a cluster outbreak that was beginning to respond to what was defined as a resurgence. Whether this was the next wave or not was going to depend on how successful the Department was in containing it in that area. He added that this was not the only area -- Buffalo City, Sarah Baartman municipality, and the Garden Route in the Western Cape were all showing increases. This meant that there was a large area that the Department needed to be focusing on. 

The key issue that the Department wanted to deal with was the management of the whole system, because it had to assess why there were still empty beds while there were problems with people reporting full casualty wards or outpatient areas. The Minister said that he would be going to look at the human resources situation, the availability of some of the equipment, such as oxygen, and the organisation at the local institutional level. He proposed that the Department come back to give the Committees a proper presentation on these issues. 

Chairperson Ndaba thanked the Minister, and reminded Ms Wilson to provide the list of the facilities that were storing files in the toilets so that the Department could follow up on that.

Chairperson Dhlomo noted the Minister’s closing remarks on coming back to present to the Committee, and that he was working on the report that had been tabled by the CGE. Therefore there would be a validation of that report by the Department, and the Committee would then be appraised of it. He proposed that the Committees accept that the matter which was of concern was being investigated, and that they would be furnished with a progress report on it. 

He thanked the Minister for briefing the Committee on this. He said that the Committee would be liaising with the Minister’s office to find a slot for a meeting in the next seven days, to get a sense of what was happening in the Eastern Cape, as well as the other areas where there was concern. 

The meeting was adjourned.