Barney Selebano must testify at Life Esidimeni hearing
Suspended Gauteng Department of Health head Barney Selebano has lost his bid to avoid appearing at the Life Esidimeni hearing.
Selebano was one of three officials whose fingers were “peppered” through the project‚ according to the findings of health ombudsman Malegapuru Makgoba.
Selebano challenged a subpoena compelling him to testify at the hearing in the Johannesburg High Court.
On Monday morning‚ Johannesburg acting high court judge Daniel Berger found: “In the circumstances‚ Selebano has failed to establish a basis on which the subpoena can be challenged. [The challenge] is dismissed with costs.”
However‚ as the judgment concluded‚ Selebano’s advocate Kirsty McLean told the acting judge he intended to appeal.
Court was adjourned at 11:30am so that parties could discuss the appeal.
Selebano challenged the subpoena on three grounds:
He said the Life Esidimeni hearing was not an arbitration as defined in the Arbitration Act‚ and therefore he could not be subpoenaed under the act.
Secondly‚ he argued that he was only being subpoenaed so he could be blamed for the tragedy‚ and this was an “abuse of process”.
Thirdly‚ he argued that the subpoena would violate his right to fair labour practices‚ as he has a disciplinary hearing this week – and he may say things at the Esidimeni hearins that could be used against him in his disciplinary hearing.
An arbitration requires a dispute‚ and Selebano’s lawyer‚ Craig Watt-Pringle SC‚ told the court last week there was no dispute‚ as the state had conceded “the merits of the case” and admitted they were negligent in the 143 Esidimeni deaths.
Berger found the opposite: “In my view‚ it is clear in the [arbitration] terms of reference‚ there is an existing dispute or a future dispute.”
Berger said the Life Esidimeni hearing was an arbitration‚ as the “dispute” needed for an arbitration did indeed exist: the dispute over how much the affected families will get paid‚ which is what hearing judge Dikgang Moseneke has to decide.
Berger said the fact that Moseneke would determine a final and binding award that could not be challenged‚ was one factor that made it an arbitration‚ as defined in the act.
Berger said he could not find evidence that Selebano was only subpoenaed to apportion blame‚ even though “it was argued [that his testimony] cannot assist them for redress... It will only be used to make a public spectacle of him.”
Berger said that this was not true. He found that Selebano’s testimony might be valid in helping Moseneke decide on appropriate financial closure for families‚ so the subpoena was not an abuse of process.
Berger read out a detailed judgment to the media‚ and said he would not rule on Selebano’s third argument – that making him testify was an unfair labour practice – as there was no evidence before him relating to what charges Selebano may face at his disciplinary hearings.
Selebano is in court‚ but has not commented to media.
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