Suspended Gauteng health head of department Barney Selebano’s defence said on Wednesday that subpoenaing him to testify at the arbitration hearing into the both transfer of mentally ill patients would be subjecting him to another hearing, as he was already facing disciplinary action.
During proceedings at the South Gauteng High Court, Judge Daniel Berger, said an individual could be subpoenaed during an arbitration and that his understanding was that Selebano was initially put on the testifying list by Section 27, a public interest law centre, and not the government because there was disciplinary action against him.
Selebano’s defence counsel Craig Watt-Pringle said: “Read between the lines, the government is saying they want to cross examine him. This is a commission of inquiry, not an arbitration.”
Watt-Pringle added Selebano had already answered to the Ombudsman, and had an internal disciplinary commission pending against him, and that appearing at the arbitration hearings would only mean that he was being subjected to yet another inquiry against him.
He said: “It must be tested whether this is really an arbitration.”
Watt-Pringle said there was already acceptance that the ombudsman’s findings were correct, but Selebano did not necessarily agree, and argued the government had gone about the matter the wrong way.
Watt-Pringle added the purpose of the arbitration was not to vindicate, but to get answers and closure, and that there were so many features of the arbitration, but they were not completely sufficient to constitute it as an arbitration.
This, he argued, was the reason why Selebano is not obliged to testify.
“One does not obtain closure by receiving money, but by receiving answers,” Watt-Pringle said.
“The intense media presence are because of the main objectives, which is for the families to know what was happening.”
Health ombudsman Malegapuru Makgoba’s report on the Life Esidimeni transfers, released in February, found that Selebano committed ”gross misconduct and incompetence” as one of the officials in charge of the transfer of mental patients from Life Esidimeni to various unlicensed NGOs across the province. More than 140 patients died, largely as a result of poor care and neglect by ill-equipped NGOs.
Arguing for the state, Advocate William Mokhari said there was no prescribed format of how the arbitration proceedings had to be conducted.
“All the parties to the arbitration are in agreement that these are arbitration proceedings and everyone knows what’s happening and the procedures that will be followed,” Mokhari said.
Mokhari said it was common cause that there was an agreement that they were undergoing an arbitration and the format had nothing to do with it.
Mokhari told the court that the aim of the arbitration was to resolve the issues through the process and that claims would be vindicated.
“As a result of this process, when they’ve accepted the results they cannot return at a later stage. The agreement can only bind those who have signed.”
“You can’t resolve something that’s not in dispute.”
Mokhari told the court that Selebano could not dispute that one of the issues was compensation and the form of compensation would be decided by the arbitrator, with assistance of evidence provided.
Mokhari argued that how the dispute was resolved was broad, and would only be an issue if there was no resolution.
“He was the HOD, he is the one who signed off things. He must come and assist the arbitrator.”
“He must go there and tell the arbitrator that ‘I wasn’t involved’,” Mokhari said.
He added Selebano had the choice to answer the questions he was asked or not, and to protect himself.
“There is no basis for this application.”
Court adjourned for lunch.
– African News Agency (ANA)