Life Esidimeni victims must not qualify for Constitutional damages - State
9 February 2018
Johannesburg – The State's argument that relatives of deceased Life Esidimeni psychiatric patients should not be allowed to qualify for Constitutional damages is "incredible", former deputy chief justice Dikgang Moseneke said.
Moseneke was speaking at the Life Esidimeni arbitration hearing in Johannesburg, where closing arguments were presented on Friday.
The former deputy chief justice even asked State advocate Tebogo Hutamo if the State had instructed him to present that argument.
The hearing, which came to an end on Friday after more than 40 days, was established to determine if the families and survivors of the disastrous Gauteng mental health marathon project were entitled to equitable redress and compensation and if so, how much.
On Thursday, Section27, which represented more than 60 families who lost relatives during the transfer of Life Esidimeni patients to a number of unlicensed NGOs, said it had reached an agreement with the State on a figure of R200 000 per family, which would cover funeral expenses and emotional shock and psychological injury.
Following that, arguments on Constitutional damages were presented.
On Friday, Hutamo argued that the deceased were not entitled to Constitutional damages and that evidence that their rights had been violated should be ignored.
"Justice, you are called upon to deal with issues relating to equitable redress and compensation, not issues relating to criminal law… and we should not lose sight of the objective of these proceedings and therefore, the objective that the government should be punished goes against the objective of these proceedings," Hutamo said.
On Thursday, counsel for Section27 proposed Constitutional damages of R1.5m per family - which they called "a middle-ground figure".
But Hutamo said on Friday that the figure was far too high and suggested between R80 000 and R100 000 for general and common law damages. The suggestion was based on previous case law from as far back as 10 years ago.
He added that the relatives should not be allowed to qualify for the payment of Constitutional damages at all.
Moseneke responded: "A court should be careful in weighing [things up]. Is this a slap on the wrist, or will this be an award that will insult the aggrieved?"
Section27’s advocate Adila Hassim responded: "We’re talking about an atrocity. The incredible argument by the State undermines a lot of the work that has been done by this arbitration.
"It is treating the families as mere bystanders," Hassim said, adding that the State’s attitude was akin to patting the families on their heads before sending them off.
In her closing response, Hassim read the names of all 63 clients and a bit of personal information about them to remind the arbitration "of the humanity of the people behind the names".
The hearings wrapped up on Friday, with Moseneke saying he was expected to make an announcement on the awards to the family within 30 days.
Moseneke thanked the families in his closing remarks.
