Esidimeni families ‘snub’ arbitration
About half of those who lost loved ones not part of the process
Retired deputy chief justice Dikgang Moseneke yesterday warned that the law would take its course against anyone refusing to be part of the Life Esidimeni tragedy arbitration processes.
Speaking to Sowetan on the sidelines of a press conference where he briefed the media about the alternative dispute resolution process in Parktown, Johannesburg, Moseneke said the Arbitration Act “gives the arbitrator the power to subpoena”.
The public hearings have been set down for three weeks – from October 9 to October 30. “You want to get to the truth, so if everybody refuses to come then you may not be able to do a proper arbitration. That is why we have that power. It is enforceable.
“They [people who refuse to appear] could face criminal charges for contravening the arbitration processes. No one can refuse to appear,” Moseneke said.
Nearly 1 400 psychiatric patients were transferred to various unlicensed nonprofit organisations after former Gauteng health MEC Qedani Mahlangu terminated the department’s contract with Life Esidimeni care centre “to cut costs”.
Health ombudsman Professor Malegapuru Makgoba found that about 100 mentally ill patients died at various NGOs due to, among other things, neglect, dehydration and starvation.
Moseneke said he was worried that almost half of the families who lost loved ones were not part of the process. “I am deeply concerned. One of the difficulties we are facing is that we only have half of the families and the others are not there ...
“The state has admitted liability, so it is an easier chance for everyone to be recompensed. Therefore, I am appealing to the families to come forward and be part of this process,” he said.
He said the parties, including families, Minister of Health Aaron Motsoaledi and Gauteng premier David Makhura, had “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”.
“The starting point of the arbitration agreement is that the national minister of health and the premier of Gauteng, acting on behalf of the state, have conceded unconditionally the legal merits of the claims by each of the claimants which are more fully described in the arbitration agreement, also referred to as the terms of reference.
“Put clearer, the state concedes 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.”
Moseneke said further public hearings would be held if necessary, adding that at the end of the process, he was required to “issue a binding award that represents equitable redress”.
‘‘ People who refuse to appear could face criminal charges