Selebano loses hearing appeal
SUSPENDED Gauteng Department of Health head Barney Selebano has failed 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‚ had challenged his subpoena on technical grounds.
Yesterday, Acting Judge Daniel Berger dismissed his application‚ reading out a detailed judgment explaining his reasoning and then ordered Selebano to pay the costs of the state’s two advocates.
“Selebano has failed to establish a basis on which his subpoena can be challenged,” he said.
Selebano’s advocate‚ Kirsty McLean‚ promptly stood up and said Selebano intended to appeal against the finding.
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 today to explain his role.
His court papers claim he played a limited role in the decision to close down Esidimeni homes 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 that 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 ab- sence of a dispute‚ you can’t have an arbitration.”
But Berger gave detailed reasons why it was an arbitration hearing‚ explaining that there was a dispute between families of relatives and the 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.
“All that we can see from these 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 to all those involved,” Hutamo said.
He summed up how many families feel: “The applicant was head of department, therefore he has to be accountable.”
Gauteng provincial spokesman Thabo Masebe said the Gauteng government would defend any further legal challenges if they arose.