11/02/2018 10:22 SAST | Updated 11/02/2018 10:22 SAST

The Deaths Of 144 Mentally Ill Patients And SA’s Constitutional Democracy

The egregiousness of this situation goes to the heart of the Constitution, because it violates several rights.

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Former Deputy Chief Justice Dikgang Moseneke during the Life Esidimeni arbitration hearing on October 09, 2017 in Johannesburg.

Since colonial times, black South Africans have been accustomed to cruelty, neglect and indifference on the part of successive governments. The apartheid government reduced these brutalities to a fine art, resulting in the system being declared a crime against humanity.

Regrettably, despite its ideological break from the apartheid past, the post-1994 democratic government has also demonstrated a level of cruelty, neglect and indifference that has been alarming.

There is a litany of examples. The HIV/Aids denialist position of former president Thabo Mbeki was one. Another was the social welfare debacle in Eastern Cape two decades ago, when sustained service-delivery failure due to incompetence and corruption led to great hardship for the poor and the elderly. Then there were the Marikana deaths, when 34 miners were gunned down by police during a wage protest.

More recently, arbitration hearings into the deaths of 144 mentally ill people have brought to light shocking cruelty, neglect and indifference on the part of government officials.

South Africans watching the hearings, presided over by Justice Dikgang Moseneke, have been perplexed and horrified by the level of depravity. The patients died after being moved from an institution called Life Esidemeni to a number of NGOs, some of which weren't legally registered.

What does this say about the health of South Africa's constitutional democracy?

What happened to these patients, and the conduct of the officials entrusted to make decisions about their welfare and to care for them, is not just a run-of-the-mill negligence claim in common law. It goes to the heart of the country's constitutional democracy. The preamble to South Africa's Constitution boldly declares that everyone is equally protected by law. It states that the government is committed to improving the quality of life of all citizens.

Former Gauteng Health MEC Qedani Mahlangu testifies at the Life Esidimeni arbitration public hearing on January 22, 2018 in Johannesburg, South Africa.

Issues ripe for examination

How can a legal hearing like the Life Esidimeni arbitration fix the systemic issues within South Africa's mental healthcare system and the care of patients?

The answer lies in the decisions taken to bring the people responsible to book. Four options for possible action present themselves – criminal charges, common-law claims for compensation, compensation for violation of constitutional rights, and personal liability.

The choice of option pursued will determine whether or not South Africa sees a repeat of the tragedy.

First, to criminal charges: can the political appointees, even those who have resigned, be charged criminally? The answer is yes. The South African Police Service and the National Prosecuting Authority are currently investigating the matter, and criminal charges are likely to ensue.

But this won't strengthen the constitutional rights of patients in similar situations in the future. To achieve this end, a few other options are available.

One is compensation. As the hearings concluded, advocate Adila Hassim, representing 63 families of the 144 patients, said that an agreement had been reached with the government to pay R200,000 to each family.

In South Africa, the Constitutional Court has been reluctant to recognise damages for a constitutional violation.

Those families who choose not to accept the compensation offered may have further claims under the common law of negligence against the wrongdoers – as well as the state – for grossly negligent conduct and their failure to exercise due care.

But the egregiousness of this situation goes to the heart of the Constitution, because it violates several rights. These include the right to life, dignity, safety, security, health, privacy, and not to be subjected to cruel, inhuman or degrading treatment.

In his consideration of redress and compensation, Justice Moseneke should allow a claim for constitutional compensation or damages; one that stands on its own outside of the common law claims.

Such claims have been allowed elsewhere. For example, in 1996 New York state's highest court held that a free-standing constitutional tort should exist and compensation be allowed. Until that point, the court had dismissed the notion that a constitutional tort (separate from a common-law tort, like assault or negligence) could exist, and authorised compensation only for common-law torts committed by state government actors.

In South Africa, the Constitutional Court has been reluctant to recognise damages for a constitutional violation. In a 1996 case, the court denied a plaintiff who had instituted a claim against the minister of safety and security for damages arising from a series of assaults by police the right to seek constitutional damages.

Another deterrent would be for the Gauteng department of health officials who made the decisions that led directly to the deaths of patients to be held personally liable.

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Protests during the testimony of former Gauteng Health MEC Qedani Mahlangu at the Life Esidimeni arbitration hearings on January 22, 2018 in Johannesburg, South Africa.

The hearings led to consistent denials and obfuscations on the part of Gauteng department of health officials, including the former MEC, the director and other senior officials. Justice Moseneke should reject those assertions. He should impose a meaningful deterrence on those who violated protections provided for under the constitution.

Forcing people to pay personal liability for constitutional damages would provide compelling incentives for enhanced training of officials and staff, if there were the potential for monetary damages.

The road ahead

The abuse of mental health patients, hidden from view until now, should inspire civic engagement and action by the government.

South Africa could look elsewhere for lessons in the care and protection of mental health patients. A detailed report commissioned by the governor of New York six years ago set out a series of recommendation that South Africa should follow. The report's recommendations included training officials, and the steps that should be taken in reporting and investigating abuse of patients in mental health facilities.

This piece originally featured in The Conversation and can be viewed here. It has been slightly edited for HuffPost readers.