ANC's faith in Mahlangu makes a mockery of Life Esidimeni findings

Moseneke's condemnation of Qedani Mahlangu was unequivocal, but she follows other politicians in avoiding a legal reckoning for as long as possible

29 July 2018 - 00:00 By MARK HEYWOOD

In his reply to the debate on his state of the nation speech this year, President Cyril Ramaphosa told parliament that the Life Esidimeni disaster, in which at least 144 mentally ill patients died, was "an instance of the most appalling dereliction by the state of its duty to its people".
A few weeks later, at the end of the arbitration proceedings, former deputy chief justice Dikgang Moseneke found that those who died were "tortured" and had been subjected to "cruel, inhuman and degrading treatment". Nobody ever contradicted this statement. In fact, his judgment and orders were embraced by Ramaphosa and Gauteng premier David Makhura.
So, when an announcement was made that Qedani Mahlangu, the former Gauteng MEC for health who had ordered the mass removal of Life Esidimeni patients, had been re-elected to the ANC's Gauteng provincial executive committee, most people were shocked. Before long shock became outrage and anger. Christine Nxumalo, whose sister was one of the victims, called it a betrayal.
In response, Jacob Khawe, the ANC's new provincial secretary, made matters worse. On 702 he argued that ANC branches had shown "maturity" by electing her. "Branches could not be courts," he argued, adding that before the ANC judged Mahlangu, it was necessary that there "first be due process".Sadly, Khawe was recycling an excuse often used to justify keeping corrupt politicians in office: "The law must follow its course ... innocent until proven guilty" etcetera. Mahlangu's election proves again that the longer the legal process can be delayed, the longer a politician can remain in a lucrative post.
This kick-for-touch rule was pioneered by Jacob Zuma and is being used by others involved in state capture, including Mahlangu's comrade and fellow PEC member Brian Hlongwa, who was also re-elected.
Hopefully, the law has not yet finished with Mahlangu.
But where Khawe is wrong, and what he and the 334 delegates who voted for Mahlangu overlooked, is that the law has pronounced very clearly. In paragraph 207 of the judgment that accompanied his award, Moseneke said: "Her plea of ignorance and that Dr [Barney] Selebano and Dr [Makgabo] Manamela lied to her about the facts related to the Marathon Project is patently untrue.
It is a response of convenience in the face of an ominous tragedy. Her overall conduct in relation to the Marathon Project was irrational, inexplicable, highly reckless and led to the deaths of at least 144 mental healthcare users and 1418 survivors of the torture at nongovernmental organisations.
"Her stance that she could not reasonably foresee that death might ensue or that mental healthcare users might be subjected to torture is untenable and cannot be believed.
She acted with impunity, thinking that she will get away with murder because the users and their families were vulnerable and poorly resourced. She acted with an ulterior motive that remains concealed even after many days of evidence before the hearing."
Could a finding of guilt be clearer than that? Yes, this was not a criminal trial. A jail sentence didn't follow his findings on her character.But Moseneke also said that although he had "declined to order the SAPS to investigate criminal charges that obviously arise from the facts of this arbitration", he expected them to "do their work as the law requires". What the SAPS have done, or not, in the past four months is an issue that requires investigation. Certainly, none of the prime suspects have been arrested or charged so far.
However, Mahlangu's election raises serious questions about the ethics of those in political office.
On a personal level, it seems clear that despite her resignation and apology, she takes little responsibility. She continues to consider herself fit for public office.
But at a political level, it forces us to question again the morality and commitment to constitutional values of many who hold office and of their political parties. The Life Esidimeni disaster revealed the corruption of public ethics. It exposed officials who were prepared to collude and turn a blind eye to the corrupt behaviour of their colleagues - Batho Pele principles have surrendered to self-interest.
Ramaphosa said: "We should never ever allow something like this to happen in our country." But isn't this what those who voted for Mahlangu were doing again?
It is this political culture, as much as the behaviour of those who worst exemplify it, that we have to challenge.Dare we contemplate that Mahlangu was not an aberration, but that there may be many more like her?
Two years ago, a scandal erupted upon news that the then MEC for health in the Free State, Dr Benny Malakoane, had ordered that an ICU bed be made available for the relative of another MEC, despite doctors refusing to do so. Malakoane remains an MEC.
A week ago, after receiving a desperate message from a doctor at a neonatal unit in a major hospital in KwaZulu-Natal, I contacted the MEC to ask him to respond to this emergency and save a life. He was too busy in a meeting. His assistant passed me to his head of health. He too was too busy. He passed me to the district manager. She was only concerned about following protocol and didn't help. Eventually, I turned to the CEO of a private hospital group. He ordered an ambulance and bed for the baby in a nearby hospital.
While we may be outraged about the election of Mahlangu and justifiably demand that she be removed, this is not about an individual. Moseneke also found that a "delinquent provincial government" had aided and abetted her and that others should be held individually responsible.
So, as it vets candidates for political office in 2019, the Independent Electoral Commission would do well to recommend that Moseneke's findings be made compulsory reading for all members of political parties and the government, because they remind us how the constitution imposes "overarching duties on wielders of public power" and about what he calls "the admirably high principles" of public office and "high standard of professional ethics" that must be embraced.
• Heywood is executive director of SECTION27..

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