Opening statement by Advocate Adila Hassim SC
19 July 2021
The context of the Inquest
- This inquest arises from the deaths of mental health care users who were in the care of the state. They died following the decision and actions of the GP DoH to move them out of Life Esidimeni, the facility in which they had been receiving treatment and care, to a number of unlicensed NGOs scattered across the province.
- The decision to terminate the contract with Life Esidimeni was taken in September 2015. Between October 2015 and April 2016 about 16 patients per month were transferred from Life Esidimeni to NGOs. Resolutions from a meeting in the MEC’s office on 8 April 2016 show that 950 MHCUs needed to be moved to NGOs by the end of that month. There were between 500 and 800 patients transferred in May and June alone. The Ombud who investigated the transfer of patients compared this to a “stampede”. As a result of this decision to transfer MHCUs, en masse, the manner in which it was conducted and the places to which they were sent, at least 141 deaths that are before this inquest occurred.
- This inquest follows a lengthy arbitration before Former Deputy Chief Justice Moseneke. The Arbitration ran from October 2017 to February 2018. In addition to tomes of documentary evidence, the arbitration heard evidence from 60 witnesses. The full record of that evidence is part of the record that serves before this court. As a result, this inquest has a solid platform from which to begin its work. Perhaps the most important aspect of this record is the assessment of the evidence by Justice Moseneke in his arbitration award.
- In plain-speaking language the judgment (the arbitration award) begins with the following:
 This is a harrowing account of the death, torture and disappearance of utterly vulnerable mental health care users in the care of an admittedly delinquent provincial government.
 It is now undisputed that as a result of their move out of Life Esidimeni facilities after 1 October 2015, 144 mental health care users died…
- There is much that Justice Moseneke describes that have a bearing on this inquest. I wish to highlight five crucial findings by Justice Moseneke with reference to his own words.
- First: The deaths that occurred were “not natural but caused unlawfully and negligently” by the employees of the Government. Importantly, the government conceded this in the Arbitration.
All three of them [MEC Mahlangu, Dr Selebano and Dr Manamela], in slightly varying formulations said “mental health care users die”. That must be true. All human beings die at some stage. But here matters were plainly different. All evidence points to unnatural causes of death. That is the finding of the Ombud and one that the Government has conceded. Again, that concession is correctly made. [para 86]
Mercifully and rightly, in these proceedings, the wrangling about the cause of death does not arise. The State has conceded that the deaths of the concerned mental health care users were not natural deaths but caused by the unlawful and negligent omission or commissions of its employees ─ starting with Ms Mahlangu, Dr Selebano and Dr Manamela ─ and of the personnel of non-governmental organisations who were agents of the State and who bore the same duty of care and the same statutory and constitutional obligations as the State towards the mental health care users and their families. [para 94]
- Second: Officials were warned of the inevitable outcome but they chose to continue: The responsible officials – including Ms Mahlangu, Dr Selebano and Dr Manamela, were warned of the consequences of the transfer of mental health care users but did not heed the many warnings.
The Department did not heed any of these pointed warnings of potential harm to mental health care users. Ms Mahlangu, Dr Selebano and the former head of the Mental Health Directorate (Directorate), Dr Makgabo Manamela (Dr Manamela) obstinately went ahead with mass removals, without involvement of and consultation with families and concerned health professionals. As a result, at least 144 people in their care died and barring the missing patients, just over 1400 patients survived the torturous conditions after their forced displacement from Life Esidimeni facilities.
On the totality of the evidence, I conclude that Ms Mahlangu, Dr Selebano and Dr Manamela falsely claimed ignorance of the actual number of deaths at non-governmental organisations even as they were responding to Professor Makgoba’s enquiry and when Ms Mahlangu addressed the provincial Legislature. 
- Third: Failure to act in the face of deaths occurring: Regarding the failure to act even when the deaths were of evident concern, Justice Moseneke says the following:
Asked the same question during the hearing, [regarding the question by the provincial legislature early on the process of moving patients] Ms Mahlangu, Dr Selebano and Dr Manamela pleaded ignorance. They claimed that nobody told them of the deaths. So many patients under the care of their Department died and they say they never heard of the deaths. This answer is as improbable as it is untrue. All three key decision makers in the Marathon Project, in evidence, sought to escape the inevitable and foreseeable results of their reckless and unlawful plan to displace mental health care users from Life Esidimeni facilities. [para 82]
Both [MEC Mahlangu and Dr Selebano] admitted that each had the power to stop the termination of the contract but never explained why they did not. [para 181]
- Fourth: The NGOs were incapable of providing the necessary care for MHCUs and the officials knew this: A number of the NGOs to which the MHCUs were sent were not properly vetted as suitable for their care.
“Many of the destinations of the mental health care users were treacherous. The evidence suggests that they may be properly dubbed death traps or sites of torture.” [Para 60]
“The highest number of deaths occurred at five non-governmental organisations. These were Precious Angels, Cullinan Care and Rehabilitation Centre (Cullinan Centre) Siyabadinga/Anchor, Mosego/Takalani, Tshepong/ Hephzibah. These non-governmental organisations more than others turned out to be sites of death and torture of mental health care users under their care.” [Para 42]
Ms Jacobus, the deputy director of mental health services, reported to Dr Manamela. She candidly testified that the normal assessment processes of conducting pre-audit visits and then non-governmental organisations audits were not completed during the Marathon Project and instead alternative processes were introduced, on Dr Manamela’s instruction. [Para 46]
- Fifth: On whether the deaths were reasonably foreseeable, Justice Moseneke found as follows:
The high-water mark of the response of these three high ranking Government officials is that they had no reason to believe that the displaced mental health care users would die or suffer severe ill-treatment and torture. On the facts as a whole, this response is so improbable that it must be false. [Para 26]
The point here is less about what the families did but rather about what Ms Mahlangu, Dr Selebano and Dr Manamela refused to do. They refused to stop the mass transfer of mental health care users to non-governmental organisations not fit for purpose. They chose, knowing all the facts and risks, not to be responsive to the reasonable and lawful request and demands of the claimants. [Para 199]
She [Dr Manamela] also claimed that she could not reasonably foresee that patients under the care of her Directorate might lose their lives or be subjected to extended degrading treatment and torture. Dr Manamela was integral to the decision to end the Life Esidimeni contract. She was not a victim and dutiful servant but a leader and principal decision-maker. The evidence shows that she produced a plan to transfer the patients en masse. She was physically present at removal sites. She visited non-governmental organisations and must have known of their parlous conditions. She could reasonably foresee that some patients will be exposed to health care inferior to the one they enjoyed at Life Esidimeni and that some will suffer and others might die. And they did. After her evidence she resigned before internal disciplinary processes were completed. 
All facts point to him [Dr Selebano] having chosen to go along with and lead the Marathon Project. He must have foreseen that death and torture might ensue and he nonetheless allowed the project to go on and death and torture did indeed ensue. After his evidence he resigned from his post before facing disciplinary processes. 
Ms Mahlangu too denied that she was administratively responsible for the mass death and torture related to the Marathon Project. …. However, on all accounts she was at the helm of the Marathon Project. She was the ultimate leader and commander of the project. ….She was aware of the full risks of implementing the Marathon Project. She ignored and indeed brushed aside the warnings at many levels that death might ensue and it did. ….Her stance that she could not reasonably foresee that death might ensue or that mental health care users might be subjected to torture is untenable and cannot be believed. [205-206]
- Although this Court is not bound by the findings of Justice Moseneke, we will submit that there is no good reason to depart from those findings. Even though those findings were made in the context of the arbitration they are directly relevant to these proceedings. As this division has held in Institute for Accountability in Southern Africa v Public Protector:
Judges have a duty to form and express opinions concerning issues raised before them (including those that are relevant in the context of this matter), and they arrived at those opinions aided by procedures (including the law of evidence) which were designed to ensure that they base those opinions on the correct information.
- In other words, they cannot be equated with the mere inadmissible opinion of ordinary individuals.
- Justice Moseneke came to those conclusions after hearing 60 witnesses, testing their evidence, assessing many thousands of pages of documentary evidence, and hearing full legal argument. The entire record of evidence in the arbitration is contained in the record of these proceedings. It is bolstered by the additional evidence garnered during the subsequent investigation by the law enforcement authorities.
Purpose of the inquest and legal principles governing the inquest
- With regard to the object and purpose of these proceedings, we are guided by the Inquests Act and the pronouncements of our courts. What the Act and the case law tell us is the following:
- The Act provides for the holding of inquests in cases of deaths or alleged deaths apparently occurring from other than natural causes and for matters incidental thereto.
- Inquests are not criminal trials. They are inquisitorial in nature and the main purpose of the proceedings is to uncover the truth about what happened to the deceased.
- The Inquests Act does not impose the same onus that rests on the State in criminal trials. The standard of proof is less stringent than proof beyond a reasonable doubt. The question for the court, in terms of section 16(2) of the Act is whether the deaths were brought about by conduct prima facie amounting to an offence on the part of any person or persons. The presiding officer is not called upon to make any determinative finding as to culpability.
- Nevertheless, the inquest must be thorough and satisfy the public and all interested parties that there has been a full and fair investigation. This was stated as an objective, quite ironically in the first Timol inquest. The re-opened Timol Inquest affirmed that purpose and reiterated:
“. . .The underlying purpose of an inquest is to promote public confidence and satisfaction; to reassure the public that all deaths from unnatural causes will receive proper attention and investigation so that, where necessary, appropriate measures can be taken to prevent similar occurrences and so that persons responsible for such deaths may, as far as possible, be brought to justice…”
- The criminal offences that arise in the Inquest have been put to three of the potential accused in their warning statements. The charges put to Ms Mahlangu, Dr Selebano and Dr Manamela are culpable homicide, assault with the intention to do grievous bodily harm, and contravention of section 70 (1)(c) of the Mental Health Care Act 17 of 2002 – that is, that anyone who “neglects, abuses or treats a mental health care user in any degrading manner or allows the user to be treated in that manner” is guilty of an offence and liable upon conviction to fine and imprisonment.
- All this court is required to determine at this stage is whether prima facie there is evidence before it upon which a reasonable person might convict a person of an offence arising from some or all of the deaths of the named deceased. The ultimate decision, whether to prosecute or not, will rest with the National Director of Public Prosecutions.
- In the context of these requirements of the Inquest Act, one of the central tasks of this Court, is inquiring into the cause of death. A key question for this Court is whether “the unlawful and negligent conduct of a person, whether by act or omission, caused or materially contributed” to the death.
- Now, there may be some who question the ability of this Court to find that the element of causation has been met in this case on the application of the traditional ‘but-for’ test. We will submit that the evidence does support a positive finding of causation on this basis. But in any event, a nay-sayer approach ignores the clear and binding authority of the Constitutional Court which has developed the law on causation to include a more flexible test to the traditional “but-for test” generally adopted in relation to causation.
- At the end of these proceedings, we will seek to address your ladyship on the factual and legal elements of causation and will demonstrate that the evidence shows that the conduct of the relevant government officials and NGO owners, bearing in mind the duty that rested on them, both factually and legally caused the deaths of the MHCUs.
SECTION27 and the families
- SECTION27 represents 44 families. In these proceedings we will be highlighting the deaths of Aaron Nqgondwane, Charity Ratsotso, Joseph Gumede, Frederick Colitz, Christopher Makhoba, Terrence Chaba, Virginia Machapela, Koketso Mogoerane and Frans Dekker. However, we will also show that the conduct of the relevant officials of the GDOH links to the death of all the deceased.
- The evidence will show that notwithstanding the fact that the deceased presented with different medical conditions, required different medications or type of care what they shared is the fact that their deaths were caused by the sheer neglect, torture and abuse which they experienced.
- We will submit that the evidence led in these proceedings, together with the evidence collected during the arbitration, and the findings of Justice Moseneke will establish a prima facie case against officials in the GPDoH and the owners of at least two NGOs – Ethel Ncube (Precious Angels) and Dorothy Franks (Anchor).
- Ultimately, we will submit that this inquest must make findings in relation to the persons who are responsible for the deaths. Acting in concert, the officials of the GDoH acted in a manner that unlawfully and negligently led to the deaths. They were aware of the consequences that would follow because
- They were told so by the Clinical Heads of Gauteng Specialised Psychiatric Hospitals and Academic Departments and the SA Society of Psychiatrists before the transfer of patients even began. They chose to ignore the warning.
- They were told so by the concerned families who sought to protect their relatives by having a curator ad litem appointed in order to ensure that the best interests of the MCHUs were protected. They chose to oppose those proceedings and then entered into a settlement agreement that they did not uphold.
- They were asked to urgently stop the transfer when the first deaths were reported. They chose not to.
- They were told that the NGOs, particularly Precious Angels and Anchor, were incapable of providing the necessary care for the MHCUs. But they chose to leave the MHCUs in those homes where they would have insufficient food and water, no warmth, inadequate supervision and no access to the medication they required: ‘deathtraps’ as Justice Moseneke called them.
- It is the task of this inquest to name those individuals who are responsible. This court need not make a finding of culpability but must, in accordance with section 16(2)(d) of the Act make a finding“as to whether the death was brought about by any act or omission prima facie involving or amounting to an offence on the part of any person.”
- Section 16(3) of the Act provides that if the court cannot make any such finding that it should record that fact. That outcome, with respect, will be a denial of justice to the families of the victims and will render hollow the many earnest findings of Justice Moseneke.
 Caselines 200:55 p20790 Arbitration Record.
 Caselines 300:2 p22488 Evidence of Professor Makgoba, 10 October 2017 lines 10 – 21.
 Para 8 of Arbitration award.
 2020 (5) SA 179 (GP) at para 31.
 Inquests Act 58 of 1959.
 In Re Goniwe and Others (2) 1994 (2) SACR 425 (SE); Padi en ‘n Ander v Botha No en Andere 1995 (2) SACR 663 (W) at 665G.
 Freedom Under Law v National Director of Public Prosecutions and Others 2014 (1) SA 254 (GNP) at para 77.
 Timol v The Magistrate of Johannesburg 1972 (2) SA 28 (T).
 The Re-opened Inquest into the Death of Ahmed Essop Timol, para 15. Citing with approval Marais NO v Tiley 1990 (2) SA 899 (A) at 901F-902B.
 Section 16(1)(d) of the Inquests Act
 Minister of Police v Skosana 1977 (1) SA 31 (A) 34.