Tough decisions loom over Esidimeni compensations

HOW much is the life of a destitute or jobless person worth? This is the question the arbitration process for families of psychiatric patients who died in the Life Esidimeni saga will seek to address.

Retired chief justice Dikgang Moseneke is presiding over arbitration hearings for families who lost relatives when they were moved from Life Esidimeni homes into illegal and ill-equipped non-government organisations (NGOs).

Many of the 100 or so patients died needlessly of pneumonia‚ starvation and neglect‚ according to the health ombudsman’s Malegapuru Makgoba report released in February.

Moseneke addressed the media, saying the government and the Department of Health had admitted wrongdoing in the matter and agreed that the families deserved compensation.

The arbitration process starts on October 9 and hearings will run for three weeks in Johannesburg.

In South African law, compensation paid if a person suffers injury‚ death or disability due to negligence is usually limited to loss of earnings or the cost of future medical care.

So if a jobless person loses the ability to work through death‚ their family does not have legal claim for damages.

Moseneke said this was the case‚ but in this hearing he would seek to decide what a life was worth “in a country where half of people were not earning [a salary]”.

This would look at whether the existing law‚ where damages are linked to loss of earnings and future medical expenses‚ is fair.

“South Africans have to work hard to find out what equitable redress would mean.

“What is the nature of constitutional damages in a country with half of the people not earning?

“If someone invades their dignity how do they get compensated‚” Moseneke said.

Speaking on how damages were linked to loss of future earnings, he said: “There is a quite a big debate to be had here. If you have no money whatsoever, do we just say sorry if you’re dead?”

“I look forward to ‘smart advocates’ making submission on the matter.”

Families will testify and witnesses will be subpoenaed in the hearing.

Christine Nxumalo‚ a member of the family committee who lost her sister, Virginia Machpelah‚ said families were nervous about hearing the details of how their loved ones had died.

But the process and planned memorial service would bring some closure.

“We are happy the arbitration is starting. But money won’t bring the loved ones back.”

The committee had supplied the names of those they thought should be subpoenaed‚ including those people who ran the inadequate NGOs and Gauteng health department officials‚ she said.

Moseneke said he hoped it would not be a long‚ drawn-out process and joked that he was looking forward to going back into retirement.

He said he hoped if there was a postponement the process would be wrapped up early next year.

Once the hearings are complete‚ he must make a ruling within 30 days.