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Esidimeni lawyers argue for constitutional damages in closing arguments

The state has reached an agreement with the families of patients, to compensate each complainant for common law damages amounting to R200,000.

The Life Esidimeni arbitration hearing sitting in Parktown, Johannesburg. Picture: Masego Rahlaga/EWN

JOHANNESBURG - Lawyers representing the families of those who died in the Esidimeni tragedy are arguing for constitutional damages for their clients.

The state has reached an agreement with the families of the psychiatric patients, to compensate each complainant for common law damages amounting to R200,000.

Common law is the system of law which is based on a judge’s decision and on custom rather than on written laws.

In this case, retired deputy chief justice Dikgang Moseneke, who was appointed the arbitrator will decide how much each family should be awarded.

One thousand seven hundred patients were moved from Esidimeni facilities, 144 of them died, and 55 are still missing.

The Life Esidimeni project, which was rolled out by the Gauteng Health Department in 2016, infringed upon the rights of hundreds of mentally ill patients.

This was proven after an investigation by Health Ombudsman Professor Malegapuru Makgoba, who found that all 27 NGOs where patients were transferred to, were operating unlawfully.

Malegapuru also found that patients died from human rights violations, namely hunger and dehydration.

Section 27’s Adila Hassim, who represents the families of 55 patients who died is making her closing argument.

She’s made reference to the terrible circumstances in which the patients died.

“You’ve now got something that’s a basic right, which is water and food that’s become complex, that’s torture.”

As Hassim listed all of these cruelties, families gathered began to sob and console each other.

Hassim says the State has not conceded on paper that it should be liable to pay the families of the Esidimeni tragedy for constitutional damages.

“The reason the common law is insufficient is because there’s no recognition for a claim based on the loss of a life in these circumstances, or the breaches of constitutional rights. That is the simple reason why the common law damages don’t go far enough.”

Hassim has listed various reasons in her argument on why the families should be compensated, adding that the State infringed on the rights of the mentally ill patients when it transferred them from Esidimeni facilities to ill-equipped NGOs.

After legal arguments conclude on Friday, Moseneke will have 30 days to apply his mind, and decide on how much he thinks should be awarded to the families of those who died and those who survived the tragedy.