The problem with the Esidimeni arbitration award

Justin Mackie sets out the possible unintended consequences of Justice Moseneke's decision

The arbitration award handed down in the Life Esidimeni Arbitration on 19 March 2018 by former Deputy Chief Justice, Justice Dikgang Moseneke has generally been welcomed. No one who is familiar with these appalling events could begrudge the affected parties their award. However, looking beyond the circumstances of this particular tragedy, the details of this arbitration award are a cause for concern.  

As has been widely reported, in March 2016 the Gauteng Health Department cancelled its contract with the Life Esidimeni Health Care Centre and began a process of transferring 1,371 mentally ill patients to other, presumably more affordable facilities. In general terms, this transfer process was so poorly thought through and the facilities which received these patients into their care were so poorly regulated and run, that 144 patients died as a result of this decision and hundreds more of some of the most vulnerable people in our society were condemned to suffer in horrendous conditions.

It is entirely right that the magnitude of this culpable tragedy has been recognised and that steps have been taken to ensure that those worst affected have been compensated. But in our eagerness to make amends by awarding (some) of those affected so-called “constitutional damages”, we risk making the situation even worse. Here’s why:

Having been apprised of the scale of the tragedy the Minister of Health, Dr Aaron Motsoaledi, requested the Health Ombudsperson, Professor Malegapuru Makgoba, to investigate the circumstances surrounding these patient deaths and make recommendations. With his investigations concluded, Professor Makgoba recommended among other things that an arbitration be held involving all affected parties, with both patients and patients’ families to be involved in the arbitration process (at least those who could be identified or who came forward).

In terms of the arbitration agreement, Justice Moseneke, as arbitrator, was tasked with determining the nature and extent of “equitable redress”. He was specifically empowered to determine any form of redress he deemed appropriate, including an award for constitutional damages.

For those unfamiliar with this sui generis concept, constitutional damages are monetary damages awarded as “appropriate relief” in terms of section 38 of the Constitution in recognition that a constitutional right has been threatened or infringed. Such damages are meant to serve a greater purpose than simply compensating somebody who has been wronged. They are generally awarded where more traditional forms of redress (such as common law damages) would be meaningless or ineffectual and they are intended to promote the values of the Constitution and deter future infringements by effectively operating as punitive damages.

Having heard what must have been days of harrowing evidence, Justice Moseneke made the following binding arbitration award: of the 135 claimants who were explicitly identified and were participating in the proceedings, 67 of them were awarded R20,000 in special damages, ostensibly for funeral expenses. All 135 of the identified claimants were then awarded R180,000 in respect of general damages “for shock and psychological trauma”.

Then, in addition to these common law damages, Justice Moseneke awarded those same claimants an amount of R1 million each “as appropriate relief and compensation for the Government’s unjustifiable and reckless breaches of [numerous constitutional and legislative provisions] that caused the death of 144 mental healthcare users and the pain, suffering and torture of 1,418 mental healthcare users who survived and their families”.

Before the close of proceedings, the State had specifically addressed the issue of constitutional damages, arguing that having been compensated in terms of the common law it was not open to the claimants to seek further monetary redress specifically in terms of the Constitution. This argument appears to have received short shrift, with Justice Moseneke reasoning that as a legion of constitutional rights had been breached the affected parties should not be restricted by having their claims couched solely in terms of the common law. In Justice Moseneke’s own words:

“In effect the Government has invited me to squeeze this pervasive and reeking violation of our Constitution and many valuable laws into psychological injury and shock for which R180 000 might be the going rate in trial courts under the common law. I decline that invitation. This is a matter of massive proportion for the utterly defenceless mental healthcare users who deserve every care in the world and every protection and vindication a tribunal like this can afford them.”

Though obviously motivated by the best intentions, the magnanimity and symbolism of this award is problematic. There are several reasons for this.

Firstly, almost any egregious delict by the State can be recast as a violation of constitutional rights. Recasting a delict in this way is not a reason for saying that existing common law remedies cannot and should not be used to adequately vindicate those rights. The idea that there is something unique about these claims such that they cannot adequately be brought within the rubric of the common law is unconvincing. These claims are delicts - egregious, appalling, complicated delicts but delicts nonetheless – and compensation should have been calculated accordingly.

Secondly, Justice Moseneke’s apparent disregard for “the going rate [for general damages] in trial courts under the common law” is damaging. It is trite that no amount of money can truly compensate a person for the grief and trauma of losing a loved one, but courts bound by judicial precedent at least try to apply established quantification principles consistently and fairly so as to achieve a consistent and fair result.

This anomalous arbitration award is way out of kilter with what a claimant could reasonably expect to receive in a court of law, and risks skewing the public’s perception of what constitutes fair compensation. Given the high-profile nature of this arbitration and the prestige and standing of the arbitrator, this award, though not technically binding or precedent-setting, will undoubtedly have an inflationary effect on comparable claims (something the State can ill afford).

Thirdly, there is something troubling about high-profile victims of high-profile wrongdoing being compensated disproportionately as a symbol of our collective disgust at a particular incident, while other victims of equally egregious wrongdoing suffer the indignity of not only being largely ignored but actually getting less compensation for comparable wrongs (assuming that is that they even get the chance to vindicate their rights).

Fourthly, to the extent that constitutional damages were awarded in an effort to promote the values of the Constitution and punish the State so as to deter future infringements, it could hardly have been less successful. The effect of the award will be that a huge sum of money (R135 million in constitutional damages) will be taken out of an already strained financial healthcare budget and paid over to relatively few individuals. The State will as a result have even less money to spend on providing the mental healthcare it so publicly failed to provide in this case.

Justin Mackie is a medical professional indemnity lawyer and an attorney of the Cape High Court. He writes here in his personal capacity