Court told subpoena for Selebano to testify at Esidimeni hearings not valid

The subpoena that is forcing Barney Selebano‚ suspended head of the Gauteng Health Department‚ to testify at the Life Esidimeni tragedy hearings on Monday has no legal power.

This is according to Selebano's advocate‚ Craig Watt-Pringle SC‚ who told the Johannesburg High Court that his client Selebano had been unlawfully subpoenaed.

Selebano was one of the three officials whose fingerprints were "peppered" throughout the Esidimeni project‚ according to health ombudsman Malegapuru Makgoba's findings.

In 2016‚ more than 1‚100 mentally-ill patients were moved from Life Esidimeni homes into NGOs‚ hospitals and homes and 143 died as a result.

Selebano has refused to testify at the Esidimeni hearings and was subpoenaed.

Selebano has been subpoenaed under the Arbitration Act and challenged the subpoena in the high court on Wednesday. His lawyers argue that the Life Esidimeni hearings are not technically an arbitration as defined in the law‚ therefore the subpoena is not legally binding. An arbitration is a process in which an arbitrator acts as an "judge" to decide on a dispute.

Watt-Pringle told the high court there is no dispute about Esidimeni as the state‚ Section 27‚ families and parties in the hearings all agreed the state was "negligent" in the Esidimeni matter.

Watt-Pringle SC said: "In the absence of a dispute‚ you can't have an arbitration."

He added: "The government has conceded the merits of the case."

Watt-Pringle said even under the arbitration's term of reference‚ it was written that all parties "are pulling in the same direction". He also called Esidimeni "one of the more serious scandals to befall government"‚ but said the hearings were being run as a commission of an inquiry to find out what went on leading to the deaths.

"The purpose of the hearing is to throw as much info into the pot as possible so everybody knows what happened."

He said then a subpoena couldn’t be issued under Arbitration Act and a commission of inquiry must be set up.

William Mokhare SC ‚ the advocate representing Premier David Makhura and Health MEC Gwen Ramakgopa‚ said the hearings were an arbitration as there was as dispute and Selebano must testify. The dispute was how much families who lost loved ones should be awarded.

Mokhare said just because the state "conceded the merits [of the matter] doesn’t mean there is no other any issue in dispute".

Responding to Selebano's arguments that he was not very involved in the Esidimeni project and supervised more than 67‚000 employees as the HOD‚ Mokhare said he must tell the arbitrator that.

"[He says] I was not involved. He can go and tell the arbitrator‚ he was not directly involved."

Acting Judge Daniel Berger asked advocate Watt-Pringle how Selebano's testimony was not relevant to how much should be paid to families‚ as he was the head of the department when the Life Esidimeni tragedy happened.

The one area of dispute in the hearings is what families should get paid and may require Selebano's evidence‚ Berger suggested.

Berger said: "The question [in dispute] is what would be appropriate compensation".

Watt-Pringle said "they want to cross examine him to show blame. There is no dispute."

To avoid a subpoena is a criminal offence.

Watt-Pringle admitted that a "subpoena is not chicken soup" and was serious. But that subpoena had to be issued lawfully‚ he argued.

Berger will give a judgment on Monday after spending the weekend "applying his mind" to the case. He has many other urgent matters to attend to before then‚ he explained.