Three years and at least 144 deaths later, the families of Life Esidimeni patients may walk away with just R200 000 each if state advocates have their way. But if they don’t, they could make history as the first people to claim Constitutional damages for the state’s violation of mental health patient rights.

This week, presiding retired Deputy Chief Justice Dikgang Moseneke heard closing arguments in the Life Esidimeni arbitration. Family and state advocates reached a speedy agreement to ensure that the Gauteng provincial government pay families R20 000 each to cover the funeral costs of burying their loved ones and a further R180 000 in psychological damages. This follows a 2015 Gauteng health decision to place almost 1700 former Life Esidimeni mental health patients in the care of deadly NGOs. While 144 have since died, a further 12 remain missing.

As part of this week’s deal, a memorial to the victims will also be built.

Public interest law organisation Section27, which is representing 63 families, has welcomed the arrangement.

Typically in medico-legal arbitration, damages for medical injuries such as psychological damages would be calculated on expected treatment costs put forth by experts. The fact that this type of evidence was not argued in arbitration may have signalled a certain willingness by the state to pay up.

But state advocates were quick to contest R1.5-million in Constitutional damages sought by family legal representatives in addition to the R200 000. The Life Esidimeni is the first time in South African history that Constitutional damages have ever been sought for the violation of mental health care patients’ rights, says Advocate Adila Hassim who is representing 63 families on behalf of Section27.

Families are asking for R1.5 million per patient because that is the amount the state would have spent on patients had they not been placed with ill-equipped and often unlicensed NGOs.

If they are successful, families plan to donate part of this money to help other state mental health patients.

Listen: The search for Billy Maboe

A father speaks out about the terrible conditions his son died in after being removed from state-funded hospital care at Life Esidimeni.

People can claim Constitutional damages when a government official has violated their Constitutional rights such as the right to health, life or equality, says Penelope Andrews, dean of the University of Cape Town’s (UCT) law faculty.

These kinds of cases are extremely rare.

But state advocate Tebogo Hutamo says Life Esidimeni families are not entitled to make this claim because it was the rights of their loved ones — and not theirs — who suffered directly as a result of Gauteng health department’s decision to remove patients from Life Esidimeni care and place them with NGOs.

“Families should be compensated for trauma and shock but not for the trauma the deceased went through as a result of the implementation of the project”, Hutamo argued.

Moseneke then asked Hutamo if he was suggesting that the arbitration “ignore all the Constitutional breaches against the deceased and only consider that of the family members?”

Hutamo said yes and added that the provincial government could not afford to pay what could ultimately amount to more than R20-million to families.

“It’s a bit rich”, Moseneke said, for the state to complain about finances. In January, Gauteng finance MEC Barbara Creecy testified that the health department had spent more than R90-million on private consultants even as it ended its long-standing contract with Life Esidimeni to save R250-million.

Democratic Alliance MPL Jack Bloom, however, has suggested that the ultimate award in the arbitration come from a special Treasury allocation rather than “hard-pressed” health budgets to protect patient care.

Listen: The blame game in overdrive 

The former Gauteng health MEC says it wasn’t her job to visit organisations prior to transferring state patients into their care.

To successfully claim for Constitutional damages, advocates must show that there is no alternative way to obtain redress for human right violations under common law, Andrews explains.

“It requires the plaintiff to show something much more than negligence (by the state), for example, but almost reckless disregard”, she says.

Andrews says that to win Constitutional damages, plaintiffs do not have to show physical harm but could instead argue that officials’ actions diminished their dignity. She believes that the Gauteng provincial government’s resistance to paying Constitutional damages may be tied to the fear of accepting greater responsibility.

“The Constitution is so detailed and comprehensive that [the state’s] liability will be increased, [if damages are awarded]”, she says

Moseneke holds the final say over how much families will receive and is expected to make his announcement in early March.

Meanwhile, Hassim says that one of the arbitration’s biggest questions remains a mystery: Why the Gauteng health department chose to remove patients from Life Esidimeni’s care.

“We stand here today without answers.” 

Have something to say? Tweet or Facebook us on @Bhekisisa_MG

Life Esidimenimental health