State advocate Tebogo Hutamo on Friday stunned the audience at the Life Esidimeni arbitration hearing when he said compensation should be awarded in relation to "what the families went through and not what the patients went through".
In his closing arguments, Hutamo said families of the 144 patients, who died during the botched transfer of patients to unlicensed NGOs, were not entitled to constitutional damages.
Hutamo said families were entitled to R200 000 for common law damages and will also be given counselling, which according to the State is sufficient.
Hutamo was arguing in a bid to influence outcome of the remedies retired deputy chief justice, Dikgang Moseneke, will recommend at the end of the arbitration.
He emphasised that the arbitrator should not consider claim for constitutional damages because the people who's rights were violated are not claiming for themselves, but the families are the claimants.
Instead, he said only survivors are entitled to the the constitutional damages.
He read the recommendation made on the health ombud report.
"The report shows that compensation should be granted to those affected by the tragedy."
Moseneke appeared shocked and asked Hutamo whether the suffering of the deceased was irrelevant and should be ignored.
"Is that your argument?" asked Moseneke.
"Yes, we will make submissions why they are not entitled to constitutional damages," Hutamo replied amid murmurs of disapproval.
Moseneke asked the lawyer if the state was aware he was submitting that the violation of rights of the deceased should be ignored.
"Yes, they are aware," responded Hutamo.
"So all evidence in relation to the deceased is irrelevant?" asked Moseneke.
"For the purposes of compensation, yes," affirmed Hutamo much to the chagrin of family members in attendance.
Someone in the audience shouted: "Where did you study law? Go back to school."
Moseneke asked if he meant the court should forget about how the patients died, the consequences and about the breaches of the constitution.
"Ignore the fraud, the improper licensing, improper treatment, absence of medication, absence of care, forget about those things. Basically you are saying to families you are only entitled to the pain you felt when they died as for the rest, it's none of your business ... How could that ever be?" asked Moseneke.
Hutamo said this was not just about the money, it's about repairing where things have gone wrong. "One of the phases of this process was to get senior government officials to apologise," he said.
The lawyer for the state argued that the arbitration should not lose sight in the objective which is sought in the hearings.
"Government being punished goes against the objective of these proceedings."
The hearing continues.