Life Esidimeni dispute resolution process now on

 Nie Cele

Retired Deputy Chief Justice of South Africa, Justice DikgangMoseneke.

 

The much spoken about, Alternative Dispute Resolution (ADR) process for the Life Esidimeni victims is set to resume today as pronounced by the Retired Deputy Chief Justice of South Africa, Justice DikgangMoseneke last month.

Moseneke is expected to lead the course following his appointment in July. The State will be represented by the National Minister of Health, Gauteng Premier, DavidMakhura.

Former residents of Life Esidimeni, who died or survived the tragedy, are expected to be represented by their families.

This was part of the recommendations made in February  2017 by Professor MalegapuruMakgoba, acting as a lawfully appointed Ombudsman of Health following the unfortunate death of 94 mentally ill patients at the Non-Governmental Organisations said to have operated under invalid licenses.

Makgoba’s damning findings also revealed amongst others that the Gauteng Mental Health Marathon Project (GMMP), under which mental health care users (MHCU) were transferred from Life Esidimeni Healthcare to NGOs,resulted in patterns of death of mentally ill patients and “these conducts were most negligent and reckless and showed a total lack of respect for human dignity, care and human life and thus violated the Constitution and other applicable legislation”.

According to Moseneke, after a series of consultative meetings with the National Minister of Health, the Premier, the Family Committee representing specified mental health care users who had lost their lives or who had survived and their legal representatives,The parties,  have chosen arbitration as the principal form of resolving their dispute and arriving at equitable redress that must include compensation that is just and equitable to all concerned.

He also told the media that, the state conceded that the conduct of its functionaries and employees unlawfully and negligently caused the death of the deceased or other bodily or emotional or psychological harm to the survivors of the tragedy and that the state is liable to afford all of them equitable redress including compensation.

The Judge also pointed out that during the preparatory stage three matters remained unresolved.

“The first was the exact number of patients who died, additional to the 94 patients identified in the Ombud’s Report.  The State suggested tentatively that the total number might be in excess of a 100.

“The second was the indisputable identity of all the patients who died or were affected as a result of their removal from Life Esidimeni Healthcare.

“The third problematic issue was that not all families of patients who died or survived the tragedy have joined or responded to invitations to join or be part of the present ADR process.”

On the side lines after the press briefing, MirriamMonyane, one of the indirect victims who lost a 32 year old son in the tragedy said, “ The ADR is just a fair process and I just hope every thing will be okay. This will save us from hiring lawyers.”

Did you know? According to Moseneke 

• The Arbitrator and parties to the Life Esidimeni ADR Process and their legal representatives have agreed to hold public hearings, save when some compelling consideration requires otherwise, at Emoyeni Conference Centre, 15 Jubilee Road, Parktown, Johannesburg, for three weeks.
• If it is necessary, further public hearings will be held.  At the end of process the Arbitrator is required to issue a binding award that represents equitable redress.
• In order to ensure an efficient and orderly process, the Arbitrator has appointed counsel to lead evidence in consultation with counsel for all the parties concerned.
• All parties will also be entitled to lead oral or documentary evidence and make submissions as they may elect.  The ADR process will also have appropriate administrative support established by the Arbitrator and funded by the State.