SECTION27 is a public interest law centre that focuses on access to health care services and other socio-economic rights in South Africa. It combines research, advocacy and legal action to improve the socio-economic conditions that undermine human dignity and development, prevent poor people from reaching their full potential and lead to the spread of diseases that have a disproportionate impact on vulnerable and marginalised people.
SECTION27 draws its name from section 27 of the South African Constitution, which lies at the heart of our supreme law’s commitment to socio-economic rights. Health challenges are a major feature of our new democracy and intensifying and placing a closer focus on the right to health will benefit HIV. The duty to ensure access to quality health care services falls not just on government, but on the well-resourced private health sector as well.
SECTION27 also focuses on socio-economic rights more broadly. For example, SECTION27 has been instrumental in defining the jurisprudence in relation to the right to basic education and has worked with organisations to ensure that learners access the right to basic education.
In addition, the pursuit of rights to have access to health care services, sufficient food and basic education require SECTION27 to promote and defend foundational rule of law questions such as transparency, accountability and the appropriate regulation of both public and private power and this it has done with passion for the last eight years of the organisation’s existence.
In the last few years, SECTION27 has pioneered new approaches in legal advocacy in two very important cases. It represented 63 families in the Life Esidimeni case, and Michael Komape’s family.
The name Life Esidimeni has become synonymous with the struggle for the dignity and rights of mental health care users, but also with official and officials’ accountability for rights violations. 19 March 2018 was a historic day when retired Deputy Chief Justice Dikgang Moseneke handed down the Award at the Life Esidimeni Arbitration. The struggle had been a long one and involved a mixture of outright contestation, negotiation and, finally, cooperation between the parties. SECTION27 began working with families and partner organisations on the matter in November 2015; and in the Arbitration, represented the families of 63 deceased mental health care users (MHCUs).
According to the Health Ombud, Professor Makgoba, 1 441 patients were negatively affected by the Life Esidimeni Marathon Project, the name given to the move of patients from Life Esidimeni facilities after the Gauteng Department of Health terminated its long-standing relationship with the private health contractor. 144 patients died. Others suffered psychological and physical harm. The move was vehemently opposed by family members, civil society organisations and experts on the grounds that it threatened the rights and well-being of patients. This opposition was to no avail.
In the Award, Justice Moseneke ordered that the State pay, as common law damages, R180 000 for emotional shock and trauma to all claimants; and R20 000 to the families of the 144 deceased MHCUs as a contribution towards funeral costs. Critically, Justice Moseneke also ordered the State to pay R1 million to each claimant as constitutional damages as a result of the “Government’s unjustifiable and reckless breaches” of the Constitution. This Arbitration was geared towards determining just and equitable redress, including adequate compensation, appropriate psycho-social support, the provision of essential information and importantly, closure where necessary, for families of deceased or affected MHCUs, as well as surviving MHCUs.
While the Arbitration was inevitably imperfect, it went a long way to achieving these goals. It was conducted in accordance with the Health Ombud’s report, “The Report into the Circumstances Surrounding the Deaths of Mentally ill Patients: Gauteng Province – No Guns: 94+ Silent Deaths and Still Counting”. SECTION27 continues to assist the families to attain justice and redress in pursuance of its goals of ensuring access to justice for all living in South Africa, of protecting the dignity of mental health care users and of improving access to quality mental health services for mental health care users reliant on the public health care sector.
Life Esidimeni provided a test case for the use of constitutional damages to remind the state not to ignore its obligations and could have been a powerful opportunity to develop common law in accordance with the Constitution in the Komape Case. This, unfortunately, was not the case.
SECTION27 represented the family in a damages claim following the death of their little boy in a pit toilet in January 2014. It did so because the State had continuously failed to meet its obligations in relation to ensuring a safe learning environment in Limpopo schools; to highlight the continued infringement of dignity of similarly situated learners and to assist the Komape family in claiming damages for the loss of their son and brother and broaden access to justice for lower income earners.
In his April 2018 judgment, Judge Muller dismissed parts of the claim which dealt with damages for the Komape family and the awarding of constitutional damages. The judge granted a structural order instead, requiring the state to provide to the court by 30 July 2018 an audit of the number of pit toilets in the province, together with a detailed plan for the provision of safe and hygienic toilets.
Muller J also awarded the Komapes past and future medical costs for their twins. While the structural order has the potential to vindicate the rights of the Limpopo learners, the other aspects of the order are extremely disappointing in that it fails to acknowledge the trauma and grief of the Komape family sufficiently.
The Life Esidimeni Award did grant constitutional damages in recognition of the suffering of the families of affected mental health care users and to prevent the state from ignoring its obligations again. SECTION27 is therefore appealing the judgment to ensure justice for the Komape family and to prevent further deaths of learners in unsafe school toilets, such as the drowning of five-year-old Lumka Mkethwa in a pit toilet in the Eastern Cape in March 2018.
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This is the fiftieth NGO profile of my 2018 #NGOs4Africa Campaign.