Selebano must testify at Life Esidimeni hearing

Suspended Gauteng health department head Barney Selebano has failed in his attempt to avoid appearing at the Life Esidimeni hearing.

Selebano‚ one of the three officials in charge of the Life Esidimeni process that led to 143 deaths‚ urgently challenged his subpoena to appeal on technical grounds.

On Monday‚ acting Judge Daniel Berger dismissed his application‚ reading out a lengthy‚ detailed judgment explaining his reasoning and then ordered Selebano to pay the costs of the state's two advocates.

He said: "Selebano has failed to establish a basis on which his subpoena can be challenged."

Selebano's advocate‚ Kirsty McLean‚ promptly stood up and said Selebano intended to appeal the finding against him. Thirty minutes later‚ Berger listened to the appeal and dismissed it saying it did not have "reasonable prospects of success". This means Selebano will appear at the Esidimeni hearing at 9 am on Tuesday to explain his role. His court papers claim he played a "limited role" in the decision to close down Esidimeni homes‚ and move people into NGOs‚ as he was in charge of 67‚000 people as head of department.

Selebano had challenged his subpoena‚ which was issued under the Arbitration Act‚ by arguing the Esidimeni hearings were not a real arbitration‚ as defined in the law.

A dispute is a legal requirement for an arbitration and Selebano denied that there was a dispute between the state and the affected families.

Last week‚ his advocate‚ Craig Watt-Pringle SC‚ told the court: "In the absence of a dispute‚ you can't have an arbitration."

But Berger gave detailed reasons why it was an arbitration hearing‚ explaining that there was dispute between families of relatives and state as to how much families must be compensated. Berger ruled: "In my view it is clear -in the terms of reference [of this arbitration] - there is an existing dispute or a future dispute."

This meant the subpoena then had validity . In the words of state advocate Tebogo Hutamo‚ the judge "went to town" to explain in his judgment why it was an arbitration hearing.

State advocate Hutamo said in court: "All that we can see from this proceedings: the urgent application as well as this application for leave to appeal is a mere tactic‚ an attempt on the part of the applicant to avoid presenting himself at the arbitration hearings where his appearance is of relevance and important to all those involved in those proceedings."

He summed up how many families feel: "The applicant [Selebano] was head of department… therefore he has to be accountable."

Gauteng provincial spokesman Thabo Masebe said outside court the Gauteng government would defend any further legal challenges if they arose.

"The government's interest is to see [the Esidimeni] process as concluded as soon possible… so we will do everything to ensure anybody who's is required is able to attend the [Esidimeni] hearings."