‘MEC must pay up’ in frail care case

Eastern Cape Social Development MEC Nancy Sihlwayi
Picture: Brian Witbooi

Sihlwayi, director-general personally liable for wasting taxpayers’ money on crisis, court told

The Port Elizabeth High Court was asked yesterday to order Social Development MEC Nancy Sihlwayi and her director- general, Stanley Khanyile, to pay from their own pockets the substantial legal costs involved in keeping the province’s only two fully state-funded frail care centres open.

Advocate Lilla Crouse SC, from Legal Aid SA, representing the families of frail care patients, said Sihlwayi and Khanyile’s inept handling of the crisis had wasted taxpayers’ money.

She asked Judge Elna Revelas to ask them for reasons why they should not be made to pay the legal costs themselves.

At one stage of the proceedings, the department even flew in senior counsel from Johannesburg. Referring to the Constitutional Court’s orders in the social grants payout case, Crouse said the high court had the power to make this decision.

Revelas said she would give judgment next week. In June last year, the department did not renew Eastern Cape Frail C a re ’s contract to run the two centres, Lorraine Frail Care and Algoa Frail Care.

Sihlwayi said the department would move patients into the care of NGOs. Families then formed the Frail Care Crisis Coalition to fight the decision to end Eastern Cape Frail Care ’s contract.

In December, Judge Phakamisa Tshiki ordered that the centres’ contract be extended and a curator, Advocate Sarah Sephton, be appointed for the patients in frail care.

He also ordered that before patients were moved, Sephton and a judge must agree that it was in the best interests of the patients.

Yesterday, Advocate Vincent Notshe SC, for the department, said they did not need that kind of super vision. He said after three rounds of advertisements, the department had failed to find a suitable service provider and had decided to continue the services of Eastern Cape Frail Care until May next year.

Crouse said the frail care patients needed protection. “We need a plan. It has been a year since the department decided not to renew Eastern Cape Frail Care ’s contract and we still have no plan.

We are told that there are no places that can do this work. “We need to protect patients and their families,” she said. “Despite a court order that vacant beds must be filled, the department has simply refused to do so.

“One patient has already died while waiting for a bed. “Unless an order is given to protect these patients, the court will sign the death warrant for those waiting for a space at a centre.

“We have seen the tragic consequences of bad decision-making in Gauteng,” Crouse said, referring to the death of 111 mental patients in Gauteng who were moved from Life Esidimeni centres to NGOs.

Notshe said it was not true that they did not have a plan. He said their plan was to look for another service provider. While their search was ongoing, they were not going to pay more than R18 000 a patient a month as Eastern Cape Frail Care should not be making a profit from delivering a “constitutional service”.

Notshe said they would pay R9 000 amonth and the patient’s social grant, and handle medical services that would be delivered by the Department of Health.

Crouse said: “In its heads of argument the department has done a complete turnabout, now acknowledging that it does not have a viable plan.”

Advocate Gitesh Gajjar, on behalf of Eastern Cape Frail Care, argued that the court should also grant their order, compelling the department to pay the company in terms of the contract that was extended to accommodate the court order.

“Life Healthcare [under which Eastern Cape Frail Care falls] was proactive right through this process,” he said. “If you render the same services why should the remuneration be different?”

Notshe said they were only willing to pay Eastern Cape Frail Care R9 000 a patient a month. “They can’t make a profit for doing a constitutional duty,” he said.

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