Mkhize and Sehume: petitions briefings and preliminary deliberations

Meeting report

Opening remarks by Chairperson
The Chairperson welcomed everyone to the meeting and noted that all Members needed to clearly understand the procedure for considering petitions. The first matter was a petition from Mr Paul Mkhize, about the reopening of an inquest, and the second related to the petition of Mr Andrew Sehume, which was a human rights matter.

He noted that the Mkhize petition had been briefly considered, when the Fourth Parliament had held some interactions with Mr Mkhize, but regrettably no record of those could be found, nor any resolutions, and so this Parliament had no option other than to start afresh. A similar situation pertained with the Sehume petition also. He noted that it would be necessary to allow a short adjournment to ensure that the recording system in the venue was working.

Mr M Mhlanga (ANC, Mpumalanga) indicated that there was a recording being taken, but he was not sure by whom.

The Chairperson explained that it was being taken by PMG, which had the right to reserve its recordings. He granted a short adjournment to ensure that the venue’s recording system was operative. He noted, after a delay of about 45 minutes, that the Committee had managed to get a recording device from the Language Systems, on behalf of the Committee Secretary.

Mr J Julius (DA, Gauteng) suggested that the Committee should write a report on the recording system, as this hindered the ability of the Committee to function.

The Chairperson said that the Committee would put the matter on the next meeting’s agenda.

Mkhize petition

The Chairperson noted that the case of the Petitioner Mr Mkhize related to incidents at Mowbray Hospital, that falls under the Western Cape Health Department. The authorities from Mowbray Hospital were not available, but representatives were present from the Department of Health of the Western Cape, the Office of the Premier of the Western Cape and the Ministerial health team.

The translator for Mr Mkhize was Mr M Sithole from Language Systems in the Parliament.

Mr Mhlanga wanted to know if the Mowbray hospital authorities were formally invited and, if so, what their response was.

Mr Matima, Committee Secretary, noted that the request was made directly to the MEC, and the Department of Health, but it advised that no legal advisors were available.

The Chairperson asked if Mr Mhlanga was happy with the answer from the Secretary.

Mr Mhlanga commented that he hoped that the Secretary had the necessary proof of this.


Mr M Mohapi (ANC, Free State) Indicated that on the last meeting the Committee had agreed that the people who were affected on the matter should be invited in a certain way, not by default.

The Chairperson noted that all those affected by the matter should be invited directly by the Committee Secretary. That was not done, according to a resolution of the Committee. However, since Mr Mkhize was available he must be granted an opportunity to present his petition.

Mr Paul Mkhize started with a prayer and told the Committee that it was with great sense of humility and respect that he was now standing before Parliament. He wanted to state that he was representing the rights of both males and females.

His matter arose in August 2004 when his wife, Ms Thembela Matiwane, fell pregnant. At the time he and Ms Matiwane were living together in e-Thekwini, Durban, as they were working for the same company. However, after that she experienced pains and he took her to Kloof Clinic for examination, where it was discovered that she was experiencing normal pregnancy / labour pains. They were sent home. However, Ms Matiwane and Mr Mkhize made a decision for the child to be born in Cape Town, since they had a house there, and since the company also had a branch in Cape Town.

They arrived in Cape Town. On 9 February 2005 Ms Matiwane called her brother-in-law Mr Progress Mkhize, to take her to hospital. However, after a long wait at Mowbray Maternity Hospital (MMH) she was turned away. In pain and desperation she called Mr Mkhize, her husband, to intervene. Mr Mkhize said the receptionist and nurses at Mowbray Maternity Hospital told his wife to return to the village where she had fallen pregnant. Mr Mkhize called the hospital to enquire why his wife had been turned away, and he was told that for his wife to be attended at Mowbray Maternity Hospital (MMH), she should produce bank statements and proof of residency, as well as of her husband’s employment in Cape Town, and a hospital or clinic referral letter. He started to gather together the documents, but Ms Makiwane was still experiencing pain and moved in with her parents in Gugulethu. Once she had the necessary documentations she took it to the MMH, on 17 February. It was found, after an examination, that her blood pressure and general condition were normal and she was told to return the following week to determine the cause of the pain. 

 On 29 March 2004, Ms Makiwane again visited MMH, again suffering from severe symptoms of gestational proteinuric hypertension (GPH). Mr Mkhize said she was not attended to for hours, and again she asked him to intervene and complain. He called the MMH and spoke to the same sister-in-charge to whom he had originally spoken, on 9 February. Mr Mkhize demanded to know why his wife was not being attended to, and the sister responded by challenging how he could suggest to her that she should do her work. MMH staff did, however, decide to formally admit Ms Makiwane after realizing that her condition was serious as her blood pressure was higher than normal. An ultrasound was performed. The attending doctor at the time, Dr Dietrich, admitted her to the High Care Area of MMH at about 1OhOO. Approximately an hour later she was examined by Dr Lowe. By  mid-day she was being observed on an hourly basis. At this stage her condition was relatively stable and no further diagnosis of GPH had been made by any of the attending physicians.

On 30 March 2004, a reading of solid protein in Ms Makiwane’s urine was noted, and Dr Dlamini, Registrar of Obstetrics and Gynecology, in consultation with Dr Fawcus, a Senior Specialist at MMH, decided that it would be wise to induce her labour. At this stage, they also noted a diagnosis of GPH, and as soon as this definite diagnosis was made she was given misroprostol, to induce labour. Dr Dietrich called upon Dr Dlamini to assist her and they intubated and ventilated her, keeping her under close observation.

At about 02:00 on 31 March 2004, Dr Dlamini called Dr Fawcus and the anesthetist on duty (whose name was unknown) and an emergency caesarian was performed on Ms Matiwane. When she was in theatre undergoing the emergency caesarian Ms Matiwane was kept intubated. The Flying Squad arrived over an hour and a half later, approximately 03h52, to transfer her to Groote Schuur Hospital (GSH) Intensive Care Unit. The Flying Squad was also delayed in reaching GPH, despite the fact that the two medical care facilities were within only one km radius of one another. A scan showed that Ms Matiwane had suffered massive intra-ventricular hemorrhaging as a result of the GPH. After being summoned by MMH administration, Mr Mkhize arrived in Cape Town, by which stage she was already at GSH Intensive Care Unit. She died later on the same day.

On 01 April 2004, a formal brain scan was carried out, and Ms Matiwane was declared brain-dead, and she was declared clinically dead after the ventilator was switched off. However, her death certificate noted that she died “of natural causes” and no post mortem was carried out.

Relief sought
Mr Mkhize requested the assistance and intervention of the Committee in re-opening an inquest as to the cause of death of his late wife, in terms of section 17A of the Inquest Act No 58 of 1959. In terms of this section, the Minister of Justice may, after the determination of the inquest, request the Judge President of the Supreme Court’s  provincial division to designate any Supreme Court judge to re-open an inquest

Mr Mkhize was seeking this relief because he was of the opinion that MMH should be held liable for his wife’s death, which was caused by their staff negligence.

On 3 March 2006, Mr Mkhize had filed a statement and opened a case of negligence against MMH’s medical and nursing staff, at the Mowbray Police Station, arising from the death of his late wife, and an investigation was carried out in this regard. However, on 26 December 2008, after considering all the evidence presented before it, the Cape Town Magistrate Court ruled that Ms Matiwane had received prompt and appropriate care from the medical and nursing staff at MMH, so that her death was not brought about by any act or omission on the part of MMH, or any individual.

Mr Matiwane was not in agreement with this, and in addition the family was accusing him and saying that his actions had led to the death of Ms Matiwane. He wanted to prove that his own hands were clean. He added that he was saddened by having to answer questions from his daughter, Makwaziwe (age 10) as to what happened to her mother. He had lost his job through mental stress as a result of this matter. He was asking Parliament to resolve this matter and to get closure to this case, so that he could move on with his life and look after the child.  At the moment, the child was being cared for by members of the Congressional Church. He survived by preaching the word of God.

Discussion
The Chairperson asked if the Committee Members had any questions of clarity to put to Mr Mkhize before calling other stakeholders.

Mr Mohapi appreciated and acknowledged the presentation made by the petitioner, and the Committee did have access to the report earlier. He asked that if Mr Mkhize had any other additional documents, he should forward them to the Chairperson so that he could in turn send them to other stake holders, who could copy them.

Mr G Michalakis (DA, Free State) agreed with Mr Mohapi, specifically referring to the documents that the petitioner mentioned that he had, especially from the legal firm Cliffe Dekker Hofmeyr, indicating the reasons for the legal opinion on the case, and why this firm would not continue with the case. He also for sight of the copies of documents uploaded on to the Parliamentary Monitoring Group (PMG) website, on 15 May 2013, indicating that the Committee had already got the legal opinion. 

The Chairperson asked if the petitioner had the documents with him at the moment to make copies.

Mr Mkhize said that he would check with the person with whom he had left them, in Cape Town.

The Chairperson noted that he would correlate what documents were available, which were held by the Secretary and those mentioned in the petition. People who were supposed to provide evidence were from the MMH, GSH, Kloof Hospital,  and St Mary Hospital, but they were not available. The Committee could opt to summon them, or tell them to submit the return form.

Representations from Department of Health, Western Cape
Ms Sharon Brink, Legal Advisor. Office of the Premier. representing the Department of Health in the Western Cape, said that she had no mandate to answer questions, make comments or submissions; she was simply at the meeting to take notes. She thanked the petitioner for his testimony.

The Chairperson asked Ms Brink what she intended to do in view of the fact that the Committee would not give her another chance and summon her to make a presentation.

Ms Brink said she would refer the matter to the Chief Director and would be able to give feedback after that.

Mr Mohapi asked Ms Brink what was the content of the letter in which her department had mandated her to attend the meeting.

Ms Brink replied that she was mandated to come by her department, by the letter received from Mr Matima, with the copy of submission of the petitioner.

Mr Mohapi wanted to know exactly the content of the letter, saying that this was needed because a person who was invited to appear before the Committee, but failed to do so may be in conflict with the provisions of section 67. He needed clarity on Ms Brink's statement that she was here merely to observe.

Ms Brink said  the letter dated 3 November included the invitation to appear before the Committee in terms of section 149(2). However, she reiterated that she had no further mandate to comment or answer any question of any nature.

Mr Mohapi said the message from the letter was very clear, and he suggested that the Committee should not "shoot the messenger".

Mr D Ximbi (ANC, Western Cape) wanted to know the purpose of the letter sent to the Department of Health in the Western Cape, if Ms Brink was mandated to come only as an observer.

The Chairperson noted that Ms Brink had read out what her mandate said and the Committee could not take it further.

Mr Michalakis suggested that in future when stake holders were invited the letter must be specific about the purpose of the invitation, so that they knew what documents to bring or how to be prepared if they were asked to testify before the Committee.

The Chairperson said  the letter should include a reference to section 69 of the Constitution, which articulated that a person invited should come to give evidence relating to the matter and to bring all the necessary documents

Mr Julius said that the time frame must also be noted, to give the person invited enough time to prepare.  

The Chairperson said the Committee should focus on the point of what the Members wanted Ms Brink to do, and how to progress.

Mr Mohapi said the Committee must take note of what the petitioner and Ms Brink had presented to the Members. The Committee would discuss this matter in private again.

Ms G Manopole (ANC, Northern Cape) said the Committee must take note and consider Ms Brink’s offer to do some more research and respond, to move forward.

The Chairperson said  the Committee gave Ms  Brink 21 days to respond with a full submission which outlined the role of the Provincial Government and investigations in the hospitals that were involved in this case.   

Ms Manopole suggested that all recommendations given by the Chairperson should be in writing. There was no necessity to go into too much details of what is required; Ms Brink had heard the testimony from the petitioner. She also noted that reasonable time frames should be given.

The Chairperson indicated that he was giving Ms Brink the requirements that were usually recommended by Committee to stake holders.

Mr Michalakis said the relief sought in the case was that the inquest be re-opened. This Committee must be careful not to become a "mini Court of Law" or attend to the inquest themselves, when  giving the recommendations to stake holders, in terms of what was required of them.

Mr Mohapi said he made the request that the remaining matters be discussed after the presentation, in the absence of the petitioner and stake holders.

Mr Michalakis agreed with Mr Mohapi that it was correct for the Committee to deliberate on the matter after the presentation of all stake holders. He also said the Committee must keep in mind what its jurisdiction was, and what it could grant, so that in the end it did not sit with unnecessary evidence. The evidence being sought was the kind of evidence that would inform the Committee whether to re-open the inquest.

Mr Julius suggested that the Committee should discuss the matter during its own deliberations and make the recommendations to the Department of Health after that.

The Chairperson disagreed and said that the relevant Department should be able to leave the meeting, knowing what it was required to do

Mr Julius noted that this was then a counter-proposal.

The Chairperson indicated that the Committee could do anything without the submission from the Department. It had been suggested that the recommendations would be reduced to writing, by the Committee Secretary. He thanked Ms Brink and told her the Committee Secretary would remain in touch to allow the Departmental representatives to prepare themselves. T

The Chairperson asked for comment from the Department of Health in the Office of the Minister.

Mr Joe Kgatla, Acting Chief of Staff, Ministerial Office, indicated that he and Dr Natasha Rhoda, Chairperson of the Ministerial Committee for National Prenatal Mortality and Mobility Committee (NPMMC), received a call last night, from the Minister of Health who was currently out of the country, attending the meeting of WHO Afro Regional Committee meeting. He and Dr Rhoda were asked to prepare the report to Minister, to look at the matter very closely, and follow up the developments and any resolutions made by Committee regarding the case of the petitioner. It was noted that the Office of the Minister wished to pass its condolences to the family of Mr Mkhize for their loss.

Mr Mohapi suggested the release of the petitioner, together with the stake holders,, as it seemed the Committee had gone as far as it could on this matter.

The Chairperson said the time frames and procedures remained and the Department would be given 21 days to   make its submission regarding the petitioner’s case. He thanked Mr Mkhize for having confidence in the Committee. The Committee would inform him of the decision taken, after the submissions by all stake holders, but if he needed more at this stage, he must request assistance.

Mr Ximbi (ANC) indicated that the Committee Members were due to attend another meeting of the Select Committee on Security and Justice, at 2:00 pm, which was hosting guests from London. He suggested that the Committee work through lunch and deal with the next petition

Andrew Sehume submission
Mr Sehume said he would like to make his presentation in Se-Sotho.

The Chairperson indicated that the Committee now was facing another challenge, in getting the interpreter, who was still on the way to the meeting.

Mr Mohapi noted that at an earlier stage, Mr Julius had suggested that the Committee that a report be done, and he suggested now that the Committee needed to summon the Manager  of the Parliament to question him on these kinds of occurrences,  especially where the integrity of Parliament was at stake. The Committee needed to be quite upfront when dealing with meeting preparations, so that petitioners who appeared before the Committee were confident in the workings of the Committee. At present, there was lack of coordination.

Mr  M Sithole, Interpreter: Language Systems,  Parliament, said  the petitioner spoke with him earlier, noting that he could give his evidence also in other languages. Mr Sithole himself specialised in isiZulu and if the petitioner was comfortable presenting in that language, then he could assist. There had been an amendment to the roster for Parliamentary interpreters, indicating that the deployment had changed for Sesotho and isiZulu. The isiZulu interpreter needed to attend the Select Committee on Petitions and Executive Undertakings, and should speak isiZulu and Sesotho. There was currently a shortage of Sotho interpreters because one was attending the funeral of his brother.

Mr Mohapi appreciated the explanation of Mr Sithole, but said that did not change the fact that there must be better communication between the Manager and the Committee. The Committee always was hampered by the simplest administration issues. He suggested to the Committee that the Manager be summoned. He pleaded with Mr Sesume please to bear with the Committee, so that it could proceed with its work and that Mr Sesume would be able to give a good reference on its work.

the Chairperson noted that the Committee had ordered for Parliament to arrange to transport Mr Sehume to and from the meeting, but it seemed that somebody had not done their work. He asked the administrative staff to request that the Manager attend the meeting.

The Chairperson noted, when the staff returned, that he had now been told that the  section manager would be called to answer all questions put before him by the Committee.

Mr Michalakis wanted  clarity on how the Committee Members would attend the other meetings. 

The Chairperson said that the Committee had agreed to divide itself up, with some of the Members attending the meeting of the Select Committee on Security and Justice.

Ms T Wana (ANC) wanted to know who was the last manager who was directing the Parliamentary Institution.

Mr Mohapi suggested that the interpreter's office be taken up although he remained sceptical whether the petitioners would be happy presenting in that language

Mr Julius asked if the petitioner would be happy presenting in another language, with the Mr Sithole's assistance, or whether he wanted  another opportunity to come again to present.

Mr Mohapi wanted to know the flight arrangements for the petitioner, Mr Sehume. On hearing that the flight was scheduled for 18:00, he suggested that Members should, whilst awaiting the interpreter, attend the meeting of the other Select Committee in the meantime.

Ms Manopole (ANC) indicated that there was a possibility of changing the flight to a later one.

Mr Michalakis agreed on those logistical arrangements and said that when the Committee was dealing with petitions, proper time management must in future be applied, to avoid the Committee having to arrange another flight and accommodation for the petitioner.

The Chairperson agreed, and adjourned the meeting, for Members to attend another Committee, pending the arrival of the interpreter.

On resumption, Mr Lentwa Andrew Sehume stated that this was now the third time he had been asked to come to Parliament to present his case. On two previous occasions, nothing was done by Parliament and he welcomed the opportunity to present again.

Mr Sehume's matter related to a dismissal case. In 1998 he was dismissed as the Secretary of the Hospital where he worked, following a disciplinary hearing. He then took the decision to refer his dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA). The Commissioner adjudicating the matter issued an award against him. Because he was not satisfied by the award, he took the matter on review to the Labour Court ,in 1999.He asserted that to date the review had not been set down in the Labour Court. Despite  making several enquiries to the Registrar on his review, he had received very little or no information.

Mr Sehume had submitted a portion of the record of his disciplinary hearing in support of his petition. This record indicated that in or during 1998, the petitioner was charged for various acts of insubordination. The alleged insubordination committed by him whilst employed as the Secretary included defying the hospital superintendent’s authority; refusing to discuss the hospital budget with management; use of abusive language; and making racist and derogatory remarks.

The record submitted Mr Sehume further showed that the investigating officer, at the time, established a number of findings and recommendations which pointed largely to the fact that, amongst other issues, the hospital had no effective management structures, and the petitioner was grossly undermined in the process of carrying out his day to day duties as the Secretary to the hospital.

Mr Sehume went on to allege in his petition, that as a consequence of his dismissal from the hospital, his wife divorced him in 2004. In this matter too, he was of the view that processes leading to the divorce from his wife were not properly followed,  and were in fact directly flouted, to the advantage of his ex-wife. The determination made during his divorce included an order for the dissolution of the joint estate he shared with his then-wife. He did not believe that he received fair and impartial treatment from the person who was appointed as the liquidator of the joint estate. In addition, the petitioner alleged that there was corruption committed by the magistrate who presided over the dissolution of his marriage, and that he experienced abuse and neglect at the hands of the magistrate. He also alleged that the liquidator attempted on numerous occasions to sell the matrimonial home, contrary to the settlement agreement reached at the dissolution of his marriage, and this proved that the liquidator had failed to properly carry out his mandate.

The petitioner had lodged complaints with both the Commission for Gender Equality (CGE) and the South African Rights Commission (SAHRC), in relation to the manner which his divorce was handled. No contradictory   findings were made by either body. He had also lodged a complaint with the Magistrates Commission against the presiding magistrate, but the Magistrates Commission found that the presiding magistrate acted within his judicial scope in the divorce proceedings. The petitioner had also lodged complaints with the Public Protector with regard to his divorce proceedings.

In summary, Mr Sehume was asking that the Committee should investigate whether his rights to dignity and other human rights were not contravened, in the process of his dismissal and his subsequent divorce.

Discussion
Mr Mohapi indicated that in these complex matters, the Committee could not reach an immediate conclusion, or either the unfair dismissal, divorce of division of property claims.

He asked if there had been any other stakeholders invited to give input.

The Committee Secretary responded that there were no other stake holders invited to give input on the matter.

Mr Mohapi asked how the Committee would invite the petitioner even though there were no other stakeholders, to give clarity.

The Committee agreed that it might have been preferable for Members of the Committee to have at least partially dealt with the matter elswewhere, such as KwaZulu Natal.

Mr Matima said that when he had spoken with Mr Sehume, he had indicated that there were many people involved, but he could not remember any specific stakeholders. He had made mention of the provincial hospital and he suggested that perhaps he and the Committee Researcher should now try to finalise who should be invited to appear.

Mr Sehume said that if the Committee had interacted with him as to whom the respondents were,that could go some way to controlling the damage. Even if people involved in his case had died or moved on, there would be   new people working in that department who could still answer the allegations, for continuity of the investigation.

The Chairperson noted that he had told Secretary to invite the affected institutions. In relation to the comment that people might have died, he suggested that the Committee not worry unduly with potential situations at this point; the matter could continued to be investigated with those people who were available in those affected institutions.

Mr M Chetty (DA, KwaZulu Natal) said there had there had been substantial delays during the day. The Members may be tired but had to do something to ensure that it gave the petitioners some closure at the end of the day. It was indeed a pity that only the petitioner, and not the respondents, were present. It would be difficult to go through the case again, to get the respondents, and then to decide whether the Members must refuse or allow the petition. He suggested that prior to bringing such matters to the Committee, the officials should be checking that certain points were in order, and what was needed before matters were placed on the agenda. He cited earlier points and said that enough was enough.

The Chairperson reminded Members that earlier on there was a call that the Managers from Parliament attend the meeting. They did so, but he had taken them aside privately to air the Committee's frustrations. He was not attempting to stop the Members from asking any further questions.

Mr Ximbi (ANC) asked Mr Sehume whether he had anything in writing from the hospital, to substantiate his mention of a settlement claim.

Mr Sehume replied that he had no such letter from the hospital.

Mr Ximbi (ANC) said that the letter was crucial, and he was going to ask that the petitioner must submit it to the Chairperson.

The Chairperson said the petitioner had relevant documents in his case, and would be asked to provide them to the Committee Secretary before he left Cape Town, to allow that copies be made for the Members.

Mr Julius wanted to know if there was someone on the staff taking minutes, and helping the Committee Members with drawing up a list of everything that was needed from the petitioners in order to go forward on the claims. He said that the Chairperson was supposed to supervise that everything was in place. He had raised a point in Pietermaritzburg, and was raising it again now, that the readiness report indicating who should come, who had been called and who was attending should be forwarded to the members as discussed.  

Ms Manopole said the issues of the absent stake holders were starting to dismay her, and she suggested that the official team should write letters to stake holders calling up on them to respond to the allegations, so that the Committee could take all the letters across to one file and include them in the next meeting’s agenda.

Mr Mohapi made the point that when proceedings of the meeting were captured electronically, it was possible that none of the changes being suggested would be made in fact, and this was worrying because the impression might be created that the Committee could not care. He felt that it was up to all Committee Members, not only the Chair, to take responsibility equally.

Mr Ximbi agreed but suggested that the stakeholders be summoned to appear before the Committee, rather than making submissions in writing, so that the Committee could elicit the true answers.

Mr Sehume said there were a few points that he had omitted from his presentation, and made the point that he was not in a position, right at the moment, to go through the files to make copies. At least two hours would have to be set aside, but he was too exhausted to attend to this now.

The Chairperson said that Mr Sehume must discuss that point with the Committee Secretary.

Mr Mhlanga asked where the Committee Assistant was.

Mr Matima said that this was a question to be answered by management.

The Chairperson said  the Committee should not give Mr Sehume the impression that it was not running normally. The Committee had agreed to find a slot to summon the managers to be questioned on poor performance across Parliament as noted by the Members in this meeting.

He thanked Mr Sesume and said that the Committee would contact him if any further information was needed.
 
The meeting was adjourned, with the next one schedules for 19 November.