The law is an ass, thus goes a proverbial English expression. In a highly regulated economic sector such as health care, individuals and entities could easily find themselves in the cross-hairs of many an ass, not least the prevailing laws but, most importantly, ethical considerations.
Pity those who plead ignorance after the fact because ignorance, as we all know, is not defensible under law. Let me explain. As I rise above the parapet, let me add my voice to the deafening chorus that is welcoming retired Deputy Chief Justice Dikgang Moseneke’s findings on the Life Esidimeni arbitration process that he led.
It was a process resulting from the pain, suffering and deaths that occurred during a botched, massive mental patient migration process, effected at the behest of the Gauteng health authorities a few years ago.
True to expectations, Moseneke conducted himself with utmost diligence and judicial aplomb, as he pursued justice for victims and family members of the Life Esidimeni tragedy. Former Gauteng MEC for health Qedani Mahlangu, the prime focus of the arbitration process, was not covered in glory, as she was, inter alia, found to have fabricated her testimony, handsomely contradicted by MEC for finance, Barbara Creecy.
What compounded Mahlangu’s problems was her apparent recalcitrance and belligerence when invited to testify during arbitration. Conflicting reports alleging that Mahlangu had gone underground somewhere in Europe, ostensibly to take up her studies, pursuant to her resignation as political head of the provincial health department, were viewed as stonewalling by a distressed public.
Under these circumstances, it would have been more prudent for Mahlangu to be more forthcoming with the affected families and authorities, as they sought closure.
It was also perplexing that Mahlangu elected to mislead the arbitration process, especially considering the unflattering, contemporaneous public relations (PR) quagmire that she endured at the time.
Most importantly, Mahlangu ought to have reasonably anticipated that any untruths she adduced during arbitration stood to be contradicted by former colleagues in the provincial executive council. Any residual political currency earned by Mahlangu through her voluntary resignation as MEC was thus needlessly squandered.
In the end, she emerged from the arbitration process an incorrigible liar, with no apparent desire nor proclivity to subject her conduct to an ethical code. The above notwithstanding, it is important to note that no witness contradicted Mahlangu’s testimony regarding her department’s motive in seeking to terminate Life Esidimeni’s evergreen contract. As a proponent of meaningful black economic participation and an entrepreneur, it is hard to not sympathise with Mahlangu’s primary motivation to do good by black economic empowerment (BEE) ideals.
Lest we forget, evergreen contracts are inherently antithetic to the objectives of advancing BEE, particularly in facilitating the entry of black-owned enterprises in sectors traditionally dominated by white-owned entities, including Life Esidimeni. The problem arose when unlawful and unethical methods were employed by Mahlangu and some of the senior officials in her department, as they pursued their primary objectives.
Consequently, although Mahlangu may have been motivated by a desire to do good, in the end she faltered. Her seemingly presumptuous pursuit of radical economic transformation turned out to be patently reckless. It paradoxically defeated a noble objective: to pursue economic transformation in the health sector.
Meanwhile, and in the interests of advancing moral behaviour in society, it is important that we interrogate conduct, not only of state functionaries, but also that of big business and civil society in the tragedy. At the outset, let me confess my ignorance of the intricacies of law as a discipline, including regulations governing commissions of inquiry, arbitrations and the law of delict. Ramblings about the widespread legal ramifications of “populist findings and orders” by Moseneke are best left for legal scholars to debate.
Nevertheless, it is baffling that Life Esidimeni was never invited to testify during Moseneke’s arbitration hearings. Jointly and severally with the department, Life Esidimeni’s centrality in the tragedy is beyond doubt. In electing to not invite Life Esidimeni to testify, Moseneke seemingly exculpated it from legal liability.
The compulsion for me to exit the legal argument lane is strong, but suffice it to say that Life Esidimeni could have done more to prevent the botched migration process that eventually contributed to the deaths of some of its former patients. For instance, the company could have interdicted the apparently unlawful procurement process that was followed. Further, it could have interdicted alleged moves to “forcefully” remove mental health patients in its lawful custody to patently ill-equipped and ill-prepared facilities without adherence to clinical protocols.
Perhaps one the most jarring observations arises from reports that Life Esidimeni allegedly withheld patients’ records and thus sabotaged the mass migration process. If true, this counts as some of the most callous conduct ever witnessed in the history of corporate South Africa.
Since Life Esidimeni itself didn’t offer to assist the arbitration process to counter allegations levelled against it, nor did it adduce testimony of its own, a reasonable inference must be drawn that the company knew that its conduct fell far short of acceptable best practices.
Just because Life Esidimeni didn’t partake in the arbitration process, doesn’t absolve it from culpability - at least in so far as the public courts of ethical behaviour are concerned. Transformation, and economic transformation in particular, is the ultimate casualty when bureaucrats do not recognise that their failure to adhere to procurement prescripts is deleterious.
It is hard to overlook the pain endured by mental health-care users during the life cycle of the Life Esidimeni tragedy. No amount of financial reparation can possibly undo the permanent emotional scars endured.
There clearly exists a distressing nexus between the government’s service delivery challenges and a pervasive deterioration of the moral fibre of some of our bureaucrats political leaders. The Gauteng provincial government can only ignore lessons learnt from the Life Esidimeni tragedy at its own peril.
The need for advocacy and constant reinforcement of ethical conduct by all, particularly in public service, can never be exaggerated.
Mahlangu and her senior team have not only failed mental health-care users, but also the economic transformation agenda. In the end analysis, any sympathies for Mahlangu, given the above-stated primary motive, count for naught, given the consequences of the choices she made that gave rise to the tragedy.
No amount of B-BBEE good is worth any pound of pain and suffering endured by the victims and families of the Life Esidimeni tragedy. The same attitude holds true for the venal, senior medical professionals, who elected to risk their careers and sacrifice their livelihoods at the altar of political expediency and ignorance.
South Africans owe a debt of gratitude to the tenacity of Section 27 and its leader, Mark Heywood.
This extends to all other public interest advocates, who pressured the Gauteng provincial government into acting.
That they eventually squeezed a morsel of accountability from a recalcitrant, belligerent Mahlangu is a victory to be savoured by all. If indeed the law be an ass, common sense dictates that those who are entrusted with the well-being and care of the vulnerable in our society be deterred from conduct that is contrary to acceptable moral behaviour.
Needless to say, the perils of life-sapping misdemeanours, precipitated by widespread lapses in ethical conduct, will forever linger in our psyches.
* Khaas is chairman of Corporate SA, a strategic consulting firm and a trustee of the Institute for the Advancement of Public Interest.
Follow him via Twitter: @tebogokhaas