Section27 attorney Sasha Stevenson told Health-e News: “There appear from the ombud’s report to be grounds for criminal charges against the MEC.”
Mahlangu resigned on Wednesday just hours before the release of the Health Ombudsman’s report into the deaths. In her resignation letter, she said “the Health Ombudsman has not found any culpability on my part for the unfortunate loss of lives by the patients”.
But Stevenson said there was “an obligation on the SAPS and prosecuting authority to pursue (these criminal charges). We cannot say what are the chances of her facing jail time without knowing the commitment of these bodies to pursue the investigations and prosecution”.
In what is now the biggest recorded mental health scandal in South Africa, between March and December last year more than 1300 patients were transferred from the Life Esidimeni centre to a number of NGOs with “invalid licences”, as revealed in the ombudsman’s report.
During the process at least 94 patients died, some of dehydration, hunger and infections.
Some felt Mahlangu was evading accountability by resigning.
When asked what action would be taken against her, spokesperson for the Gauteng premier’s office Thabo Masebe said she could not face internal disciplinary action from the province - like other officials implicated in the deaths - because she was “no longer a staff member”.
“Remember the report says the first thing the premier needs to do is to look into her suitability as MEC. That matter has been dealt with by her resignation. In the report there are no other places where the premier is specifically instructed to act against her.”
Family members of the deceased have also indicated that they intend to sue Mahlangu for her role in the deaths.
However, it seemed more action would be taken against the two other officials identified as “key players” in the report: head of the department Dr Tiego Ephraim Selebano and director Dr Makgabo Manamela.
The report found both had tampered with evidence during the course of the investigation.
“Section 89 of the National Health Act 61 of 2003 creates a criminal offence for this conduct punishable by imprisonment for up to 10 years,” said Stevenson.
The report also recommended that because both were qualified health professionals, unlike the former MEC, they should face disciplinary action by their respective professional regulatory bodies - the Health Professions Council of SA and the South African Nursing Council.
“These authorities should act swiftly to institute proceedings. They must further face disciplinary procedures in terms of the Disciplinary Code and Procedures for the Public Service,” said Stevenson.
Some worry that Mahlangu’s resignation has let her off the hook in a matter where she has committed various offences, such as lying under oath, delaying publication of the report and “running a dysfunctional department”, according to the DA’s Jack Bloom.
“We cannot trust the provincial government to take action and hold her accountable, so it is up to us. The DA is considering laying effective criminal charges against her once the inquest is complete,” he said. “Losing her job is punishment but it is not punishment enough to account for the extreme loss of life.”
SA Medical Association chairperson Dr Mzukisi Grootboom said Mahlangu should have resigned in September when she admitted that 36 patients had died. As revealed in the report, by that time more than double that number, 77, had died.
“Her behaviour has been problematic in many ways. The report was supposed to be released weeks ago and was delayed by her. She has downplayed the issue, and her involvement, from the beginning up until now,” he said.
In Mahlangu’s resignation letter, she alleged she was responsible for the initiation of the investigation. Yet, Section27 claimed “she was forced to do so following pressure from the provincial legislature and lobby groups”.