Judgment reserved in suspended health head's challenge of Life Esidimeni hearing subpoena

2017-11-29 17:32
Dikgang Moseneke is heading the Life Esidimeni arbitration hearings. (Trevor Kunene)

Dikgang Moseneke is heading the Life Esidimeni arbitration hearings. (Trevor Kunene)

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Johannesburg – Judge Daniel Berger on Wednesday reserved judgment in the application by suspended Gauteng health department head Tiego Ephraim Selebano challenging a subpoena requesting him to appear before the Life Esidimeni arbitration hearing on the deaths of more than 140 mentally ill patients. 

"I am not going to give a judgment now. I plan to give judgment on Monday at 10:00. I know that the subpoena requires Dr Selebano to appear at the arbitration on Monday at 09:00," Berger said.

"I want to direct that he be excused until I give a ruling. That direction should not be used to undermine what I am going to say in the judgment." 

He said he simply would not be able to hand down judgment by Friday.

The court excused Selebano from appearing at the hearings until judgment was handed down.

The application was lodged against Gauteng Premier David Makhura and health MEC Gwen Ramokgopa, who issued the subpoena requesting Selebano to appear before Justice Dikgang Moseneke on December 4.

Proceedings 'not an arbitration' 

Selebano wanted the South Gauteng High Court in Johannesburg to set aside the subpoena and has claimed in court papers that he feared incriminating himself. 

His lawyer, Advocate Craig Watt-Pringle, SC, also argued that the proceedings were not an arbitration process and therefore the state did not have the power to issue a subpoena under the Arbitration Act. 

Berger interrupted Watt-Pringle to point out that people could be subpoenaed to appear for court matters and in arbitration processes. 

"Are you saying parts of the proceedings are not an arbitration?" asked Berger.  

Watt-Pringle said the hearings were being conducted like a commission of inquiry instead of an arbitration process. "[T]hey had gone about it the wrong way", he added.

"There is very little difference between this and the Marikana Commission."

Watt-Pringle also argued that the process was not an arbitration as there was no dispute. Berger disagreed. He said there was a dispute, and that what needed to be determined was how much in compensation families should receive.

Providing closure

Watt-Pringle said: "They commenced with the leading of evidence without a dispute. There is nowhere (in the papers) where it says the families want R10m and the government wants to pay them R1m and then the arbitration has to determine the outcome.

"The objective of this is to throw as much evidence into the pot so that everyone finds closure."

He said the process had traits of a commission of inquiry and the Truth and Reconciliation Commission.

Berger said Selebano's appearance at the hearing could provide a more complete picture of what really happened. 

"Providing families with closure is a form of redress but the question is: can you issue a subpoena?" asked Watt-Pringle. 

Berger responded by saying that part of closure was receiving compensation. "And this subpoena seeks to get the head to say what he knows and what led to the deaths of the mentally ill patients and his role in the matter." 

Representing the State, William Mokhari asked the court to dismiss the application with costs. 

"He must assist the arbitration. A subpoenaed witness is there to assist the process not to give biased evidence to other parties." 

Mokhari said witnesses who cooperated with the process were not subpoenaed and Selebano should go before Moseneke and explain to him that he was not responsible for the deaths and not tell the court.

Read more on:    life esidemeni  |  dikgang moseneke  |  johannesburg  |  health

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