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Closing Report - Tsotetsi - Steve Biko Hospital
Closing Report - Tsotetsi - Steve Biko Hospital
TABLE OF CONTENTS
LIST OF ACRONYMS 3
1. INTRODUCTION 4
2. THE COMPLAINT 5
5. THE INVESTIGATION 11
8. CONCLUSION 57
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Closing Report of the Public Protector
LIST OF ACRONYMS
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Closing Report of the Public Protector
1. INTRODUCTION
1.1. This is a closing report of the Public Protector issued in terms of section
182(1)(b) of the Constitution of the Republic of South Africa, 1996 (the
Constitution), section 8(1) of the Public Protector Act, 1994 (the Public
Protector Act) and Rule 40(b) of the Rules Relating to Investigations by the
Public Protector and Matters Incidental thereto, 2018 as amended1 (the
Public Protector Rules) as promulgated under section 7(11) of the Public
Protector Act.
1.2. The report is submitted to the following recipients in terms of sections 8(1)
and (3) of the Public Protector Act:
1.2.4 The City Manager for the City of Ekurhuleni Metropolitan Municipality, Dr
Imogen Mashazi;
1.2.5 The Gauteng Provincial Commissioner for the South African Police Service,
Major General Tommy Mthombeni; and
1
Published under Government notice No 945, Government Gazette 41903 of 14 September 2018 and Amended
in Government Notice No 1047, Government Gazette 43758 dated 2 October 2020.
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Closing Report of the Public Protector
2. THE COMPLAINT
2.1. The complaint was lodged with the Public Protector by Mr Tebogo Edward
Tsotetsi (the Complainant) on 22 June 2021.
2.2.1. That on Monday 07 June 2021 his customary wife, Ms Moliehi Maria Sithole
(Ms Sithole) sent him a text message informing him that she had given birth
to ten babies (“decuplets”). He immediately informed one Mr Piet Rampedi
(Mr Rampedi), the editor of the Pretoria News who published the story of
the birth of their decuplets on 07 June 2021.
2.2.3. He could not pay Ms Sithole a visit at the hospital since she told him that
visitors were not allowed at the hospital due to Covid 19 restrictions and
also that the babies were kept in incubators in the Intensive Care Unit (ICU)
at the Steve Biko Academic Hospital (Steve Biko Hospital).
2.2.4. On or about 09 June 2021, he became aware of the media reports that the
government of South Africa, through its various Departments including the
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2.2.7. On the afternoon of 10 June 2021, Captain Selcke (Capt Selcke), from the
Tembisa SAPS, contacted the Complainant telephonically requesting that
he furnish the SAPS with his statement regarding the missing person
inquiry as he was the last person to have been seen with Ms Sithole. On
Saturday 12 June 2021, the Complainant submitted an affidavit to Capt
Selcke. The Complainant then told Ms Sithole to present herself to the
Tembisa SAPS to enable them to close the missing person inquiry case.
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2.2.12. That immediately after her admission, Tembisa Hospital denied him access
to her. Ms Sithole was denied access to legal representation, in that Ms
Mokoena was refused access to her as well. He was advised that Tembisa
Hospital contravened the provisions of the Mental Health Care Act2.
2.2.13. He was advised that the process followed for the admission of Ms Sithole
at the Tembisa mental care institution was not in compliance with the
provisions of the Mental Health Care Act.
2
Act No 17 of 2002
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2.3.1 That in week 29 of her pregnancy she was admitted at Steve Biko Hospital
where she was examined by Dr Ocadinngwa who discovered that she is
pregnant with 10 babies. She also visited Netcare Sunninghill, Carstenhof
and Mediclinic Medforum Hospitals during her pregnancy for maternity
check-ups. Ms Sithole alleged that she gave birth on 07 June 2021 at
around 07h00 at Steve Biko Hospital in the presence of Dr Ocadinngwa
and other doctors. She only learnt from the nurses that she gave birth to 10
babies, 7 boys and 3 girls but she did not see the babies to date as she
passed out during delivery.
both the Chloorkop and Tembisa SAPS. After the meeting she was taken
to the Tembisa Hospital for admission as an involuntary mental health care
user by the GDSD and the Police Officials.
2.3.3 Upon arrival at Tembisa Hospital she was examined by different doctors
and admitted for a period of 14 days, before being transferred to the
Weskoppies Psychiatric Hospital for admission as an involuntary mental
health care user.
2.3.4 Ms Sithole further alleged that Ms Makate was her Social Worker for a
period of 2 to 3 days in 2018 and therefore, she does not know her well. Ms
Makate removed her six years old twins to an undisclosed place of safety
without her knowledge and consent.
3.2 The GDOH, GDSD, CoE, SAPS and GPG are the organs of state and their
conduct amounts to conduct in state affairs, and as a result, the Public
Protector is satisfied that the complaint falls within her competency to
conduct an investigation as envisaged in section 182(1)(a) of the
Constitution and sections 6(4) of the Act.
TMENT (007620/20) Page 8
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4.1 Based on the analysis of the complaint and the allegations contained
therein the following issues were identified and investigated:
4.1.1. Whether Tembisa Hospital records confirm that Ms Sithole gave birth to
decuplets at Steve Biko Hospital and was refused access to her babies by
hospital officials and if so, whether such conduct constitutes improper
conduct in terms of section 182(1) of the Constitution and section 6(4)(a)(i)
of the Public Protector Act;
4.1.2. Whether the officials of Tembisa Hospital acted improperly in the involuntary
admission of Ms Sithole for medical observation and divulged her medical
information to the Gauteng Provincial Government (GPG) without her
consent, and if so, whether such conduct constitutes improper conduct in
terms of section 182(1) of the Constitution and maladministration in terms
of section 6(4)(a)(i) of the Public Protector Act.
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4.1.5. Whether the South African Police Services (SAPS) unlawfully arrested and
detained Ms Sithole in relation to a missing person inquiry and if so, whether
such conduct constitutes improper conduct in terms of section 182(1) of the
Constitution and maladministration in terms of section 6(4)(a)(i) of the Public
Protector Act.
4.2 The Public Protector has concluded the investigation and based on the
information and evidence obtained during the course thereof, the Public
Protector is now in a position to make findings.
5 THE INVESTIGATION
5.1 Methodology
5.1.1 The investigation was conducted in terms of section 182 of the Constitution
read with sections 6 and 7 of the Public Protector Act.
5.2.2 The investigation was approached using an enquiry process that seeks to
determine:
(a) What happened?
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5.2.4 The enquiry regarding what should have happened, focuses on the law or
rules that regulate the standards that should have been met by the
aforementioned state institutions, namely GDOH, GDSD,SAPS, CoE and
GPG to prevent the violation of the Constitution and/or the applicable legal
prescripts.
5.2.5 The enquiry regarding the remedy or remedial action seeks to explore
options for redressing the consequences of improper conduct and
maladministration; what it would take to remedy the wrong or, where
appropriate, to place the Complainant as close as possible to where he
would have been, but for the improper conduct or maladministration.
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5.3.2 All relevant documents and correspondence were obtained and analysed
and relevant laws, policies and related prescripts were considered and
applied throughout the investigation.
5.4.1.3 Request of information letter dated 04 August 2021 from the Investigation
Team addressed to the HoD of GDSD, Ms Mhlongo;
5.4.1.4 Request of information letter dated 04 August 2021 from the Investigation
Team addressed to the Acting Gauteng Provincial Commissioner of SAPS,
Maj Gen Mthombeni;
5.4.1.5 Request of information letter dated 04 August 2021 from the Investigation
Team addressed to the City Manager of Ekurhuleni; Dr Mashazi;
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5.4.1.7 A response letter dated 25 August 2021 from the Acting HoD of GDoH, Dr
Zungu;
5.4.1.8 A Subpoena Notice dated 16 November 2021 from the Investigation Team
addressed to the Acting HoD of GDoH, Dr Zungu;
5.4.1.9 A response letter dated 30 November 2021 from the Acting HoD of GDoH,
Dr Zungu;
5.4.1.10 An affidavit dated 09 November 2021 from the GDoH Social Worker
Manager, Ms Hlekulani Lauretta Sono;
5.4.1.11 Copy of a report dated 30 November 2021 from the Acting Chief Director:
Municipality Health Services Mr Simon Choma addressed to Dr Zungu with
the subject matter report on Ms Sithole’s medical examination at
Esangweni;
5.4.1.12 Further information email dated 17 December 2021 from the Complainant;
5.4.1.13 Copies of the Steve Biko Hospital Nominal Admission Register and Medico
Report dated 04 and 07 June 2021 respectively;
5.4.1.14 Copy of the Tembisa Hospital Medical Report for Ms Sithole dated 18 June
2021;
5.4.1.15 A response letter dated 05 January 2021 from the Netcare Sunninghill
Hospital General Manager: Mr Rodney Naicker;
5.4.1.16 A response email dated 10 January 2021 from Legal Advisor of Mediclinic
Southern Africa: Elviara Coetzee;
5.4.1.18 An affidavit dated 07 January 2022 from the Assistant Manager: Nursing at
Steve Biko Hospital, Mr Thabang Letsebe;
5.4.1.19 An email response dated 13 December 2021 from the Regional Manager:
Pick ‘n Pay, Woodmead, Mr Scott Paterson;
5.4.1.20 An email response dated 09 February 2021 from Midrand Clinic addressed
to the Health Practitioner: Pick ‘n Pay: Sister Joyce Mtule;
5.4.1.21 Copy of a medical certificate dated 03 February 2021 from Dr Unben Pillay
and Associates submitted by Ms Sithole to Pick ‘n Pay;
5.4.1.22 A response letter dated 24 August 2021 from the Chief Executive Officer of
Tembisa Hospital: Dr Mthunzi;
5.4.1.23 Copies of form 1 to 11 dated 18 June 2021 with regard to the admission of
Ms Sithole at Tembisa Hospital as an involuntary mental health care user;
5.4.1.24 An affidavit dated 15 August 2021 from the Head of Unit: Psychiatry
(GDoH), Prof Kalaivani Naidu;
5.4.1.25 Copy of the Medical report dated 18 June 2021on Ms Sithole from Prof
Naidu;
5.4.1.26 A response letter dated 17 September 2021 from Ms Phumla Nkosi the
Regional Director of the GDSD: Ekurhuleni Municipality;
5.4.1.29 Copy of Ms Sithole’s social work report dated 04 December 2017 compiled
and signed by Ms Makate;
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5.4.1.30 Copy of the Children’s Court Order in terms of section 155(8) of the
Children’s Act dated 16 September 2021;
5.4.1.32 Copy of the SAPS 545 Report dated 09 September 2021 in terms of
National Instruction with Complaint Reference Number: 145/08/2021 from
Lieutenant Colonel R Pillay of the SAPS Provincial Inspectorate: Gauteng
Complaints Investigation;
5.4.1.34 A response letter dated 13 August 2022 from the Acting Director General
in the Office of the Premier, Mr Mduduzi Mbada;
5.4.1.35 Copy of the undated Media Statement issued by the GPG with subject
matter: “Statement of the Gauteng Government on the so-called
“Decuplets”; and
5.4.1.36 Notice in terms of Rule 41(1) of the Public Protector Rules, as amended,
served on the Complainants dated 13 December 2022.
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5.4.2.5 The National Department of Health Guidelines for Maternity Care in South
Africa, 2015.
5.4.3.1 On 13 December 2022, a Notice in terms of Rule 41(1) of the Rules Relating
to Investigations by the Public Protector and Matters Incidental Thereto,
2018 (the Public Protector Rules) as amended, was issued to the
Complainants to provide them with an opportunity to make representations
in connection with the intended closure of the complaint. The Complainants
did not provide a responses to the Notice by 26 December 2022.
6.1. Whether Tembisa Hospital records confirm that Ms Sithole gave birth
to decuplets at Steve Biko Hospital and was refused access to her
babies by hospital officials and if so, whether such conduct
constitutes improper conduct in terms of section 182(1) of the
Constitution and section 6(4)(a)(ii) of the Public Protector Act
Issue in dispute
6.1.2. The issue for the Public Protector’s determination is whether Ms Sithole
gave birth to decuplets at Steve Biko Hospital and was refused access to
her babies by the hospital officials.
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Complainant’s version
6.1.3. The Complainant submitted that on Monday, 07 June 2021, Ms Sithole sent
him a text message informing him that she had given birth to decuplets. He
immediately informed Mr Rampedi, at Pretoria News who published a story
of the birth.
6.1.5. The Complainant could not visit Ms Sithole at the hospital as she told him
that visitors were not allowed at the hospital due to Covid 19 restrictions
and also that the babies were kept in incubators in the Intensive Care Unit
(ICU).
6.1.7. Ms Sithole submitted that in week 29 of her pregnancy, she was admitted
at Steve Biko Hospital where she was examined by Dr Ocadinngwa who
discovered that she is pregnant with decuplets. She also visited Netcare
Sunninghill, Carstenhof and Mediclinic Medforum Hospitals during her
pregnancy for maternity check-ups. Ms Sithole alleged that she gave birth
on 07 June 2021 at around 07h00 at Steve Biko Hospital in the presence
of Dr Ocadinngwa and other doctors. She only learnt from the nurses that
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she gave birth to the (10) babies, seven (7) boys and three (3) girls, but she
did not see the babies to date as she lost consciousness during delivery.
Submission by Dr Sibongile Zungu: Acting HOD, Gauteng Department of
Health
6.1.8. An allegations letter dated 04 August 2021, was sent to the Acting Head of
Department of the GDoH: Dr Sibongile Zungu (Dr Zungu), requesting that
she provide a comprehensive response and relevant supporting
documentation to the allegations as raised by the Complainant.
6.1.9. On 27 August 2021, the Public Protector received the response letter dated
25 August 2021 from Dr Zungu, wherein she indicated, among others, that
the facts and the legal issues that the Public Protector has been requested
to investigate are a subject of pending litigation before the Johannesburg
High Court, under case number 2021/31557.
6.1.11. A subpoena notice dated 16 November 2021 was sent to Dr Zungu by the
Public Protector to provide a response into the allegations raised by the
Complainant and to furnish relevant supporting documents to expedite the
investigation.
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6.1.12.1 That, Steve Biko Hospital does not have a file for admission and medical
reports of Ms Sithole registered under file number 0103402995.23;
6.1.12.2 That, there is no Dr Ocadinngwa employed at Steve Biko Hospital and that
in the absence of their surnames, the hospital is unable to confirm whether
persons referred to as, Sister Precious, Sister Zodwa, Sister Dineo and
Sister Dorcas are employed at Steve Biko Hospital4;
6.1.12.3 That, there is neither a clinic card nor scans for maternity which records a
pregnancy, as there was never such a visit to the Steve Biko Hospital by
Ms Sithole. She asserted that clinic appointment card would be in the
possession of the patient and not with the hospital. The only
records/information available at the Steve Biko Hospital is that of Ms
Sithole’s twins, who were born during 2014;
6.1.12.5 Furthermore, that in relation to the CCTV camera footage, the footage is
kept for up to twenty-five (25) days and is therefore no longer available.
3
Reference number provided to the Public Protector by Ms Sithole.
4
Names provided to the Public Protector by Ms Sithole.
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6.1.13. Dr Zungu, in her response to the Public Protector further submitted the
affidavit of Mr Thabang Letsebe (Mr Thabang Letsebe), dated 07 January
2022.
She (Mrs Gosiame Sithole) alleges to have lodged at our Mother Lodgers’
facility from Thursday (10/06/2021) and only started to ask about the babies
on Saturday night (18/06/2021). I called Louis Pasteur maternity and after
checking, the nurse I spoke to said they knew nothing about the decuplets.
I called her husband, Mr Tebogo Tsotetsi, phone rang unanswered, called
her sister, Ms Ditshegoane, she confirmed that Mrs Gosiame is her younger
sister and she is too secretive as they only learned through the media that
she gave birth to decuplets. Ms Ditshegoane then arranged an UBER to
fetch her home as Gosiame asked her to do so. She left about 20h40.
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I followed her up to check is she is home and the sister confirmed. I advised
Gosiame to come back on Monday 15/6/2021 to see the social worker as
she alleged to be having social problems. She will report at Patient Care
Office.
In the morning of Monday 15/6/2021 I called her to remind her to come back
to the hospital to see the social worker. She agreed to come but never
pitched.”(sic)
6.1.17. The Investigation Team is in possession of the Steve Biko Hospital Nominal
Admission Register dated 04 June 2021 to 11 June 2021, which reflects that
Ms Sithole was not admitted at the hospital during the period she alleges to
have given birth.
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6.1.18. Upon perusal of the Medico Report of Steve Biko Hospital dated 07 June
2021 to 10 June 2021, the Investigation Team noted that the details of Ms
Sithole did not appear on the list of patients admitted by the hospital during
that period.
6.1.19. Ms Sithole alleged that she recalls standing at the gate of ward 8.3B and
finally leaving with two security guards to sleep at the lodge on Thursday.
The Investigation Team was provided with a list of lodgers at Steve Biko
Hospital by Dr Zungu dated 07 June 2021 to 10 June 2021, which did not
reflect the details of Ms Sithole as a patient in that facility.
6.1.23. On 10 June 2021, she went together with the social worker, Ms Makate to
Mediclinic Medforum and again they were advised that the hospital had no
record of Ms Sithole being at the hospital.
6.1.25. According to the response letter dated 05 January 2021, submitted to the
Public Protector by Mr Rodney Naicker (Mr Naicker), the General Manager
at Netcare Sunninghill Hospital, he indicated that there is no record of Ms
Moliehi Sithole in the hospital’s database. He further stated that, as a result
of no record of admission as a patient, there is no patient record for the
aforesaid individual.
6.1.28. In a response email dated 10 January 2021 from Ms Coetzee, she indicated
that they had contacted Ms Sithole who advised them that her complaint
was against Steve Biko Hospital. She further confirmed that they did not
have record of Ms Sithole’s admission at the facility. She submitted that the
doctors alleged to have treated Ms Sithole did not have any admission
and/or treating privileges at their facility.
6.1.30. On 13 December 2021, the Public Protector received an email from Pick n
Pay Regional Manager: Mr Scott Paterson, wherein he confirmed that Ms
Sithole was an employee of Pick n Pay, Woodmead, but had subsequently
been dismissed for absconding.
6.1.31. Mr Paterson also stated that he was not under the belief that Ms Sithole
was indeed pregnant as her stomach grew too fast from one week to the
next and the medical certificates submitted gave him doubts. He submitted
that the document that Ms Sithole brought had dates from her previous
pregnancy where she had triplets and according to his recollection, the
medical certificate she submitted had been altered and a number eight (08)
was inserted in the amount of babies that she was expecting to deliver.
According to Mr Paterson, a doctor would have known that octuplets is eight
babies only, instead of writing number eight on the medical certificate.
6.1.34. Chapter 17 of the Guidelines for Maternity Care, dated 20155 provides
amongst others that—
6.1.35. The above guideline provides that the mother and her baby should not be
separated unless one of them requires special medical attention. In this
instance, it is clear that Ms Sithole could not have been separated from her
decuplets or denied access to them as the evidence obtained reflects that
5
National Department of Health, Republic of South Africa- fourth edition- 2015.
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she was never admitted at Steve Biko Hospital. The medical records further
state that Ms Sithole was not pregnant in recent times.
Conclusion
6.1.37.1 She was never admitted at Steve Biko Hospital for delivery of decuplets
during 2021 as alleged, but only in 2014 for the delivery of her twins;
6.1.37.2 The details of Ms Sithole do not appear on the Nominal Admission Register
and the Medico Report of Steve Biko Hospital;
6.1.37.3 It is not clear precisely where Ms Sithole further alleged that she gave birth
to decuplets at Steve Biko Hospital, Sunninghill Hospital and Mediclinic
Medforum Hospital, which was disputed by all facilities.
6.1.38 The Investigation Team could not find evidence to show that the Steve Biko
Hospital violated any aspect of section 195(1)(a) of the Constitution with
respect to Ms Sithole being treated in an unprofessional or unethical manner.
The hospitals in which Ms Sithole alleged to have received pre-natal care or
where she claims to have delivered the babies have confirmed that according
to their records, she was not admitted at any of their facilities.
6.2.1 Tembisa Hospital is a health care facility designated by the Mental Health
Care, to carry out 72 hours observation of a patient presenting with signs
and symptoms suggestive of a mental disorder.
Issue in dispute
6.2.3 The issue for the Public Protector’s determination is whether the officials of
Tembisa Hospital acted improperly in the involuntary admission of Ms
Sithole for medical observation and divulged her medical information to the
GPG without her consent.
Complainant’s version
6.2.5 The Complainant further asserted that on 23 June 2021, the GPG issued a
media statement disclosing Ms Sithole’s confidential medical information as
obtained from Tembisa Hospital.
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6.2.6 An allegations letter dated 04 August 2021, was sent to the Chief Executive
Officer: Tembisa Hospital, Dr A Mthunzi (Dr Mthunzi), requesting him to
provide a comprehensive response and relevant supporting documentation
to the allegations raised by the Complainant.
6.2.7 A response letter dated 24 August 2021, from Dr Mthunzi was submitted to
the Public Protector wherein he stated as follows:
privacy and dignity as this was a story of public interest. Form 1 was
completed by Dr Zwane (17/06/2021) and Dr Mathabathe signed as the
Head of the establishment. Form 4 was completed (17/06/2021) by the
social worker (Ms Makate assisted by Sr Tumelo Parks) from social
development, as the social worker reported being unable to contact the next
of kin. The social worker has known Ms Sithole from 2016 and had contact
with her in the preceding 7 days. The social worker reported symptoms that
warranted assessment for further treatment and rehabilitation. Form 5 was
completed by T I Khethe (17/06/2021) and Dr Zwane (17/06/2021)
countersigned by Prof Naidu. Form 6 was completed by Dr Tenia
(17/06/2021). Form 7 was completed by Mr Letsoalo (17/06/2021). Form 8
was completed by Dr Mathabathe (20/06/2021). Form 11 was completed
by Dr Mbeleki (28/06/2021). Therefore there was no maladministration and
improper conduct in terms of the application.
TPTH did not receive any admission letter however the application form for
admission from the social worker in the GDSD was received. Form 4 was
correctly completed as the social worker falls under the definition of a
healthcare provider in terms of the Mental Health Care Act.
TPTH and the doctors who examined Ms Sithole did not communicate with
the media. The hospital received a request from the MEC’s office and
Gauteng Health legal directorate to submit a medical report. Therefore,
TPTH acted in accordance with the request from the Gauteng Department
of Health and there was no maladministration and improper conduct.
TPTH is not aware of any request to visit or consult from Ms Sithole’s legal
representative. A letter of demand requesting information with regards to
involuntary admission of Ms Sithole was received on the 02nd July 2021
from Refiloe Mokoena Attorneys. This letter of demand did not include a
request for a visit or consultation”. (Own emphasis)
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6.2.9 Prof. Naidu stated, amongst others, that he noted the findings of the
obstetrician that there is no evidence of a recent pregnancy. Furthermore,
that there were reasonable grounds which warranted Ms Sithole’s
involuntary admission to Tembisa Hospital for observation.
Submission by Dr Bongani Spencer Strike Nkosi: Head of Department:
Obstetric and Gynaecology
(i) …;
(ii) spouse, next of kin, partner, associate, parent or guardian of the
user is unwilling, incapable or is not available to make such
application, the application may be made by a health care
provider.
(b) The applicants referred to in paragraph (a) must have seen the
mental health care user within seven days before making the
application.
(2) Such application must be made in the prescribed manner, and must-
(a) set out the relationship of the applicant to the mental health care
user;
(b) if the applicant is a health care provider, state-
(i) the reasons why the application is made by him or her; and
(ii) …;
(c) set out grounds on which the applicant believes that care, treatment
and rehabilitation are required; and
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(d) state the date, time and place where the user was last seen by the
applicant within seven days before making the application.
(3) …;
(4)(a) on receipt of the application, the head of the establishment concerned
must cause the mental health care user to be examined by two mental
health care practitioners.
(b) …
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6.2.14 In this instance, the application for involuntary care, treatment and
rehabilitation services was made by a mental health care practitioner6
(social worker), Ms Makate, who stated the reasons for making the
application, as a healthcare practitioner, after she had observed symptoms
from Ms Sithole that warranted assessment for further treatment and
rehabilitation.
6.2.15 Ms Makate further stated that at the time of Ms Sithole’s admission for
observation, she did not know any of her family members. Ms Makate
indicated in paragraph C of Form 04 that she last saw the user on 17 June
2021 at Tembisa Hospital, which was within the seven days of the
application as required by section 33(1)(b)the Mental Health Care Act.
6.2.17 Both medical specialists reports concurred that there were reasonable
grounds for Ms Sithole’s involuntary admission to Tembisa Hospital for
observation.
Conclusion
6
Section 1 of the Mental Health Care Act, defines a “mental health care practitioner” as a psychiatrist or
registered medical practitioner or a nurse, occupational therapist, psychologist or social worker who has been
trained to provide prescribed mental health care, treatment and rehabilitation services.
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Closing Report of the Public Protector
6.3.1 The GDSD derives its core mandate from Section 27(1) of the Constitution
which provides for the right of access to appropriate social assistance to
those unable to support themselves and their dependents.
6.3.2 On 16 June 2021, Ms Makate, the GDSD social worker removed the
children from their residence to a place of safety.
6.3.3 It is further confirmed that on 13 June 2021, Ms Sithole held a meeting with
Ms Makate at Ms Malinga’s house.
Issue in dispute
6.3.4 The issue for the Public Protector’s determination is whether the Gauteng
Department of Social Development (GDSD) acted improperly in the
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Complainant’s version
6.3.5 The Complainant alleged that on 12 June 2021, Ms Makate consulted with
Ms Sithole in the presence of one Ms Malinga at the latter’s house in
Tembisa and in doing so, Ms Makate infringed Ms Sithole’s right to privacy.
He further stated that on 15 June 2021, Ms Makate removed Ms Sithole’s
children to an undisclosed place of safety. According to the Complainant,
the GDSD also instructed the principal of the school where Ms Sithole’s
children attend not to communicate with her attorney, Ms Mokoena.
6.3.7 The Complainant further submitted that Ms Makate gave false and
incomplete information in sections A, C, E and F of the MHCA 04 form
during the admission of Ms Sithole as an involuntary mental health care
user at Tembisa Hospital.
6.3.8 An allegations letter dated 04 August 2021 was forwarded to the Head of
Department of the GDSD: Ms Thembeni Mhlongo (Ms Mhlongo) to provide
a comprehensive response and relevant supporting documentation to the
allegations as raised by the Complainant.
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6.3.11 On 13 June 2021, Ms Sithole called Ms Makate and asked to meet her at
Ms Malinga’s house at Umfuyaneni. During the visit she asked Ms Makate
to go and check her twins at their residence. Ms Makate went and checked
on the twins then reported back to Ms Sithole.
6.3.12 On 16 June 2021, Ms Makate removed the children from their residence
following a phone and WhatsApp conversation with their mother Ms Sithole
wherein she further expressed concerns regarding the twins. Ms Makate
placed the twins at Igugulethu place of safety.
6.3.14 The latest intervention by Ms Makate was the reuniting of the twins with
their mother upon her release from the hospital.
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6.3.16 Ms Makate went to Mr Tsotetsi’s house as per Ms Sithole’s request and she
came back and told Ms Sithole that the children are not looking good and
that they needed her as the mother. Ms Sithole then asked Ms Makate to
take them away from Mr Tsotetsi’s house to a place of safety.
6.3.18 Furthermore, on 16 June 2021, she reported the matter to the Department‘s
team assigned for the Tembisa 10 case and the SAPS team working on the
missing persons case of Ms Sithole. A decision was taken that for the well-
being and safety of the children, it is better if they are placed at a place of
safety until their biological mother is back to care for them. On the same
day, she removed the children from their residence and placed them at
Igugulethu place of safety with a Form 36. The Form 36 was approved by
the Magistrate at Tembisa Children’s Court on 18 June 2021.
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6.3.19 Ms Makate further stated that Ms Sithole, who has sole custody of the
children, was reunited with her twins on 16 September 2021 through the
Tembisa Children’s court in the presence of the Magistrate.
6.3.22 Section 27(1)(c) of the Constitution provides that everyone has a right to
have access to social security, including, if they are unable to support
themselves and their dependents, appropriate social assistance.
6.3.23 Section 28(1)(c) and (d) of the Constitution provides, amongst others, that
every child has the right to basic nutrition, shelter, basic health care
services and social services and to be protected from maltreatment,
neglect, abuse or degradation.
6.3.24 The Department of Social Development derives its core mandate from the
Constitution. Schedule 4 of the Constitution further identifies welfare
7
Act 38 of 2005.
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6.3.25 Factual evidence reveals that the GDSD removed Ms Sithole’s children with
her knowledge after she had made a request for their removal Ms Makate
subsequently obtained approval from the Tembisa Children’s Court, as Ms
Sithole was worried that her children were not receiving appropriate care
and protection from the Tsotetsi’s family, which she alleged did not treat her
and the children well during their stay with them.
6.3.26 Section 14(d) of the Constitution provides everyone has the right to privacy,
particularly not to have the privacy of their communications infringed.
6.3.27 Further evidence in the form of an affidavit from Ms Malinga revealed that
Ms Sithole did not raise any objection to being interviewed in the presence
of a family friend and that she asked Ms Malinga to be part of the interview
with the GDSD. Accordingly, it cannot be said that Ms Sithole’s rights to
privacy were infringed through the interviewing process.
Conclusion
6.3.28 It can be concluded that there was no impropriety that could be established
in the conduct of the GDSD in the removal of Ms Sithole’s children to a
place of safety, and that Ms Makate was required to complete the forms for
Ms Sithole’s admission.
Issue in dispute
Complainant’s version
6.4.3 The Complainant submitted that Ms Khonjelwayo visited his home in order
to enquire about the birth of the decuplets. The Complainant further stated
that Ms Khonjelwayo instructed members of his family to approach a local
police station and report Ms Sithole missing, when his family stated that
they did not know the whereabouts of Ms Sithole.
6.4.4 According to the Complainant, this was to enable members of the SAPS to
apprehend her and hand her over to the GDSD for the purposes of having
her admitted as an involuntary patient at a mental institution. The
Complainant’s daughter, Ms Lerato Tsotetsi, acting on the instructions of
Ms Khonjelwayo opened a missing person’s case.
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6.4.5 An allegations letter dated 04 August 2021, was sent to the City Manager
of CoE, Dr Imogen Mashazi (Dr Mashazi), to provide a comprehensive
response and relevant supporting documentation to the allegations raised
by the Complainant.
6.4.6.1 On 09 June 2021, she visited the family at the address that was confirmed
by Mr Tsotetsi telephonically and met with his family members, who
confirmed the existence of the decuplets;
6.4.6.2 On 10 June 2021, she received a message from Ms Tsotetsi indicating that
Ms Sithole is missing. She called Ms Tsotetsi who explained that they were
unable to get hold of Ms Sithole on the phone and at the Medforum
Mediclinic hospital. She further submitted that once they are certain that
Ms Sithole is missing they can go and report a case at the local police
station.
6.4.7 Section 205(3) of the Constitution provides that the objects of the police
service are to prevent, combat and investigate crime, to maintain public
order, to protect and secure the inhabitants of the Republic and their
property, and to uphold and enforce the law.
6.4.8 In this case, Ms Khonjelwayo advised the Tsotetsi‘s family to report the
matter to the SAPS as the relevant authority vested with the powers to
protect and secure the general public, which was appropriate in the
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Conclusion
6.5 Whether the South African Police Services (SAPS) unlawfully arrested
and detained Ms Sithole in relation to a missing person inquiry, and if
so, whether such conduct constitutes improper conduct in terms of
section 182(1) of the Constitution and maladministration in terms of
section 6(4)(a)(i) of the Public Protector Act
6.5.1 A missing person inquiry case was opened at Tembisa SAPS under CAS
145/08/2021, after Ms Sithole was reported missing by the Complainant’s
daughter, Ms Tsotetsi.
Issue in dispute
6.5.2 The issue for the Public Protector’s determination is whether members of
the SAPS unlawfully arrested and detained Ms Sithole in response to the
missing person inquiry.
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Complainant’s version
6.5.3 The Complainant submitted that on 17 June 2021, he received a call from
Ms Sithole informing him that she had been apprehended by the Chloorkop
Police Officials in relation to the missing person inquiry. In a further undated
statement submitted by Ms Sithole, she indicated that following her arrest,
she met with officials of the GDSD and the Chloorkop and Tembisa SAPS,
where after she was taken to Tembisa Hospital for involuntary admission.
6.5.4 An allegations letter dated 04 August 2021, was sent to the Acting Gauteng
Provincial Commissioner of the SAPS: Major General Tommy Mthombeni
(Maj Gen Mthombeni), to provide a comprehensive response and relevant
supporting documentation to the allegations as raised by the Complainant.
6.5.5 On 27 September 2021, the Public Protector received an SAPS 545 Report
in terms of National Instruction8 dated 09 September 2021, with Complaint
Reference Number: 145/08/2021 from Lieutenant Colonel R Pillay (Lt
Pillay) of the SAPS Provincial Inspectorate: Gauteng Complaints
Investigation. Lt Pillay’s report states the following:
6.5.5.1. That the Complainant was interviewed by Captain N.G Rikhotso (Capt
Rikhotso) at his place of residence on 09 September 2021 at 11h00. It is
further stated that Ms Sithole was never arrested, but only taken by SAPS
members to close the missing person file that was opened;
8
National Instruction 6 of 2017.
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6.5.5.3. Capt Rikhotso further stated that upon arrival at the Complainant’s
residence, they found the Complainant and asked him to give them a copy
of the rights of arrested persons document so that they could determine
who the arresting officer was and also asked him where Ms Sithole was
detained and for how many days.
6.5.5.4. Capt Rikhotso stated that the Complainant failed to produce the rights of
the arrested persons document and advised that he did not know where Ms
Sithole was arrested. The Complainant confirmed that Ms Sithole did not
spend a night at either police cells or a police station.
6.5.8 On the morning of 17 June 2021, Captain Motsai visited the Mofokeng
residence and advised that he would be taking Ms Sithole with him to
Chloorkop SAPS regarding the missing person inquiry. Ms Mofokeng then
accompanied both Captain Motsai and Ms Sithole to the Chloorkop SAPS.
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6.5.9 Section 205(3) of the Constitution provides amongst other things that the
objects of the police service are to prevent, combat and investigate crime,
to maintain public order, to protect and secure the inhabitants of the
Republic and their property, and to uphold and enforce the law.
6.5.10 In this instance, the police took Ms Sithole to Chloorkop SAPS for closure
of the missing person inquiry after being made aware by Ms Mofokeng that
Ms Sithole is not missing.
6.5.11 Section 21(1) of the Constitution provides that everyone has the right to
freedom of movement. In this instance, evidence in the form of witness
statements by Ms Mofokeng and Capt Rikhotso suggests that Ms Sithole
was not arrested but rather was taken to the police station, with her
permission, in order to bring closure to the missing person’s enquiry opened
by Ms Tsotetsi.
Conclusion
6.5.12 Based on factual evidence discussed above, it can be concluded that
members of the SAPS, did not arrest or detain Ms Sithole in relation to a
missing person’s inquiry.
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Issue in dispute
6.6.2 The issue for the Public Protectors determination is whether the GPG
unlawfully communicated the findings of Ms Sithole’s medical examinations
to the media and to the public without her consent.
Complainant’s version
6.6.3 The Complainant submitted that the GPG unlawfully communicated the
findings of Ms Sithole’s medical examinations carried out at Tembisa
Hospital to the media and to the public through its spokesperson, Mr Thabo
Masebe, without Ms Sithole’s consent.
6.6.4 The Complainant further alleged that, on 23 June 2021, the GPG issued a
media statement saying that the medical examination carried out at
Tembisa Hospital had found that Ms Sithole had not given birth and was
not pregnant “in recent times”.
6.6.5 An allegations letter dated 20 July 2022, was sent to Mr Unathi Mphendu
(Mr Mphendu), the Director: Integrity Management in the Office of the
Premier: Gauteng to provide a comprehensive response and supporting
documentation to the allegations as raised by the Complainant.
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6.6.6 On 15 August 2022, the Public Protector received a response letter dated
13 August 2022, from the Acting Director General in the Office of the
Premier, Mr Mduduzi Mbada (Mr Mbada), wherein he states as follows:
6.6.7 That in 2021, a myriad media articles were published by Independent Media
and the Pretoria News about Ms Sithole having given birth to decuplets at
the Steve Biko Hospital. The Independent Media and the Pretoria News
stated this as a fact and not allegations;
6.6.8 That to this end, the GPG conducted an internal investigation to test the
veracity of these media articles most of which were continuously misleading
and confusing the public about the GPG, the Gauteng Department of Health
and Health Facilities within the Province. These publications were, inter
alia, alleging that Ms Sithole gave birth at Steve Biko Hospital. He
contended that Steve Biko Hospital did not publicize the birth of the
decuplets. The media articles reported that Ms Sithole’s children
subsequently disappeared;
6.6.9 That, these perpetual media articles created negative perceptions to the
general public about the Gauteng Health facilities and the GPG;
6.6.10 That, subsequent to the publication of more articles which were continuing
to exacerbate the matter, the GPG decided to set the record straight and to
provide the public with facts about the issue of the decuplets. He submitted
that in fact, the GPG was expected to respond to the alleged birth in its
facilities due to the ongoing accusations that the GPG had something to
hide. Furthermore, that this was also in the public interest as the facilities
that were put into disrepute are used by the general public;
6.6.11 That, internal investigations were conducted regarding the validity of the
allegations. The outcome of the investigations established that Ms Sithole
was never pregnant. It was only then that the decision was taken to prepare
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6.6.12 That the above media statement was, therefore, intended to communicate
three things to all the media articles published by the Independent News
and Pretoria News. Firstly, to refute the media articles as false and
unsubstantiated. Secondly, to communicate facts regarding this matter.
Thirdly, to communicate the GPG’s commitment to continue to give
medical, psychological and social support to Ms Sithole.
Conclusion
6.6.13 Based on the media claims against the Department of Health / Steve Biko
Hospital and the subsequent outcome of the internal investigations
(Clinical Obstetrician and Gynaecology Report from Tembisa Hospital) by
the GPG regarding this matter, the GPG released a statement to the media
with the objective of refuting the unsubstantiated media reports since the
matter had attracted a lot of public interest both domestically and
internationally. The Investigation Team is in possession of the undated
media statement issued by the GPG with subject matter: “Statement of
the Gauteng Government on the so-called “Decuplets” submitted by
the Complainant and the GPG with its response to the allegations.
6.6.14 Therefore, it was reasonable for the GPG to protect the reputation of the
Department of Health and health facilities (Steve Biko Hospital) against
the potential reputational threat posed by media articles published by the
Independent Media, the Pretoria News and other media platforms.
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6.6.16 In this instance, the GPG disclosed the health status and stay of Ms Sithole
at Tembisa Hospital as the non-disclosure thereof would have represented
a threat to public interest in public health services.
Conclusion
6.6.17 Based on the above evidence, it can be concluded that the GPG conducted
itself in compliance with the provisions the National Health Act, which deals
with the confidentiality of the information concerning a user, including
information relating to her health status, treatment or stay in a health
establishment.
7. FINDINGS
complied with and the impact thereof on good administration, the Public
Protector is likely to make the following findings:
7.1. Whether Tembisa Hospital records confirm that Ms Sithole gave birth
to decuplets at Steve Biko Hospital and was refused access to her
babies by hospital officials and if so, whether such conduct
constitutes improper conduct in terms of section 182(1) of the
Constitution and section 6(4)(a)(ii) of the Public Protector Act
7.1.1. The allegation that Ms Sithole gave birth to decuplets on 07 June 2021 at
Steve Biko Hospital and that she was refused access to her babies, is
unsubstantiated.
7.1.2. Evidence at the disposal of the Public Protector, namely; the Clinical
Obstetrician and Gynaecology Report from Tembisa Hospital indicates that
Ms Sithole did not give birth and was not pregnant in recent times.
7.1.3. Further evidence in the form of the Nominal Admission Register and the
Medico Report of Steve Biko Hospital revealed that Ms Sithole was never
admitted at Steve Biko Hospital during 2021. The Steve Biko Hospital only
has Ms Sithole’s medical records of 2014 during the delivery of her twins.
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7.1.6. The conduct of the Steve Biko Hospital was, therefore, not in contravention
of Section 27(1)(a) of the Constitution and Chapter 17 of the Guidelines for
Maternity Care in South Africa.
7.1.7. Accordingly, the conduct of the Steve Biko Hospital and its officials in the
circumstances does not constitute improper conduct as envisaged in
section 182(1) of the Constitution and maladministration as envisaged in
section 6(4)(a)(i) of the Public Protector Act.
7.2.1. The allegation that the officials of Tembisa Hospital acted improperly in the
involuntary admission of Ms Sithole for medical observation and divulged
her medical information to the GPG without her consent, is unsubstantiated.
7.2.3. The medical report from Dr H S Bosman and Prof Khamker implies that the
Head of the Tembisa Hospital approved the application for assisted or
involuntary care, treatment and rehabilitation, upon receipt of the written
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report of the two mental health care practitioners, which concurred that the
conditions for involuntary care, treatment and rehabilitation existed in terms
of section 33 of the Mental Health Care Act.
7.2.5. Affidavits submitted by Prof Naidu and Dr Nkosi confirmed that they did not
communicate the findings of her medical examinations with the media
through the spokesperson of the GPG, as alleged by the Complainant.
7.2.6. Instead, evidence indicates that Tembisa Hospital received a request from
the MEC’s office and Gauteng Health legal directorate to submit a medical
report, which was communicated to the media and the public by the GPG
through a media statement, however, without providing in depth detail.
7.2.7. The conduct of the officials in the employ of Tembisa Hospital was,
therefore, not in contravention of Section 33 of the Mental Health Care Act,
in as far as the disclosure of Ms Sithole’s admission information is
concerned.
7.2.8. Accordingly, the conduct of the officials in the employ of Tembisa Hospital,
in the circumstances does not constitute improper conduct as envisaged in
section 182(1) of the Constitution and maladministration as envisaged in
section 6(4)(a)(i) of the Public Protector Act.
7.3.1. The allegations that GDSD acted improperly in the removal of Ms Sithole’s
twin children for placement at a place of safety and in interviewing her in
the presence of her friend, is unsubstantiated.
7.3.2. Evidence in the form of affidavits from Ms Malinga and Ms Makate, indicate
that the GDSD removed Ms Sithole’s children with her knowledge and
request, which was approved by the Tembisa Children’s Court.
7.3.3. The statement provided by Ms Malinga indicate that Ms Sithole did not raise
any objection of being interviewed in her presence and that Ms Sithole
asked her to be part of the interview with the GDSD.
7.3.4. Therefore, the conduct of the officials in the employ of the GDSD was not
in contravention of sections 27(1)(c) and 28(1)(c) and (d) of the
Constitution.
7.3.5. Accordingly, the conduct of the officials in the employ of the GDSD in the
circumstances does not constitute improper conduct as envisaged in
section 182(1) of the Constitution and maladministration as envisaged in
section 6(4)(a)(i) of the Public Protector Act.
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7.5. Whether the South African Police Services (SAPS) unlawfully arrested
and detained Ms Sithole in relation to a missing person inquiry, and if
so, whether such conduct constitutes improper conduct in terms of
section 182(1) of the Constitution and maladministration in terms of
section 6(4)(a)(i) of the Public Protector Act
7.5.1. The allegation that the SAPS unlawfully arrested and detained Ms Sithole
in relation to a missing person inquiry, is unsubstantiated.
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7.5.3. The conduct of the SAPS and its officials was therefore not in contravention
of sections 205 and section 21(1) of the Constitution in the matter of Ms
Sithole as she was never arrested or detained.
7.5.4. Accordingly, the conduct of the SAPS and its officials in the circumstances
does not constitute improper conduct as envisaged in section 182(1) of the
Constitution and maladministration as envisaged in section 6(4)(a)(i) of the
Public Protector Act.
7.6.2. Evidence in the form of the statement received from Mr Mbada revealed
that the GPG complied with the provisions the section 14 of the National
Health Act, in dealing with the confidential information of Ms Sithole as a
health user, including information relating to her health status, treatment or
her stay at Tembisa Hospital.
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7.6.3. The conduct of the GPG was, therefore, not in contravention of section 14
of the National Health Act, which regulates confidentiality regarding all
information concerning a user, including information relating to his or her
health status, treatment or stay in a health establishment.
7.6.4. Accordingly, the conduct of the GPG in the circumstances does not
constitute improper conduct as envisaged in section 182(1) of the
Constitution and maladministration as envisaged in section 6(4)(a)(i) of the
Public Protector Act.
8. CONCLUSION
8.1 The Public Protector considers this matter finalised and cannot take it
further. Should any party wish to challenge this decision, they are at liberty
to explore legal remedies at their disposal.
________________________
ADV KHOLEKA GCALEKA
ACTING PUBLIC PROTECTOR
OF THE REPUBLIC OF SOUTH AFRICA
DATE: 30 DECEMBER 2022