Life Esidimeni: Suspended Gauteng health head expected to testify after losing court bid

2017-12-04 17:48
The healing session for the families of the Life Esidimeni patients who died. (Mpho Raborife, News24)

The healing session for the families of the Life Esidimeni patients who died. (Mpho Raborife, News24)

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Johannesburg – Suspended Gauteng health department head Dr Tiego Ephraim Selebano is expected to testify at the Life Esidimeni arbitration hearings on Tuesday, after a court rejected his application to have a subpoena for him to appear set aside.

"He has been unsuccessful. We expect him to be at the hearings, but he may choose to use other legal avenues to delay or avoid coming to the hearing. What he decides to do is entirely up to him," said Gauteng provincial government spokesperson Thabo Masebe.

READ: Suspended Gauteng health department head loses interdict

Masebe said the subpoena had been served on Selebano and that he had decided to approach the court.

He said the government was totally committed to the arbitration process and would ensure that everybody who was required to appear at the arbitration hearings did so.

Earlier, Judge Daniel Berger dismissed Selebano's urgent application, with costs.

Berger ruled that the subpoena had been issued lawfully.

Selebano filed an application in the South Gauteng High Court in Johannesburg last month, challenging a subpoena for him to appear before the Life Esidimeni arbitration hearing into the deaths of more than 140 mentally ill patients.

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

Dismissed with costs

The application was lodged against Gauteng Premier David Makhura and Health MEC Gwen Ramokgopa, who issued the subpoena for Selebano to appear before the hearing, headed up by former deputy chief justice Dikgang Moseneke, on December 4.

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

READ: Suspended health head fears incriminating himself at Life Esidimeni hearings

Reading his lengthy ruling, Berger said: "I cannot set aside the subpoena on the grounds that Dr Selebano may be required to answer questions before Justice (Dikgang) Moseneke that may later be used to prove a case against him in the disciplinary processes.

"Dr Selebano has failed to establish a basis upon which the subpoena can be challenged. The application is therefore dismissed with costs, including that of the employment of counsels."

Shortly after Berger read out his ruling, Selebano's advocate Kirsty McLean told the court that she had instructions to file a leave to appeal application.

McLean remained insistent 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.

But Berger, in his judgment, found that it was an arbitration process.

'He has to be accountable'

Responding to McLean's submission, State advocate Tebogo Hutamo said Selebano's evidence was important and relevant in determining compensation to the families.

"The applicant himself was the person in charge of the department of health… He is the accounting officer. Any matter falling within his department, he has to be accountable… Whether he was involved or not, is not for this court to make that determination."

Hutamo said the subpoena had been issued and served legally and that Selebano had a duty to honour it.

"All we can see from these proceedings, the urgent application and the leave to appeal, is a mere tactic or attempt, on behalf of the applicant, not to avail himself before the arbitration proceedings where his appearance is of relevance and important to all of those involved in the proceedings."

He said there was no basis for the application.

After hearing both submissions, Berger said he did not believe the appeal would succeed.

He then dismissed the application for leave to appeal, with costs.

When he was leaving the court, Selebano did not respond when journalists asked if he would now be appearing at the hearing on Tuesday morning.

Read more on:    life esidimeni  |  johannesburg  |  courts

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