Pending litigation may enable a top Gauteng health department official to delay his testimony before the ongoing Life Esidimeni arbitration for months.

Suspended Gauteng health department head Barney Selebano was one of three high-level officials singled out in the health ombudsman’s report into the Life Esidimeni tragedy that claimed the lives of 143 mental health patients following their removal from state-funded private care.

In papers filed with the high court in Johannesburg, Selebano is seeking to have his subpoena to appear before the arbitration on December  4 set aside pending the outcome of departmental disciplinary procedures. With two pending criminal investigations, Selebano is also contending that forcing him to appear as part of the arbitration process may violate his right to avoid self-incrimination. This principle allows people accused of crimes to recuse themselves from answering any question that may implicate themselves in a crime.

Selebano’s urgent high court application is expected to be heard on November 28. Meanwhile, the embattled head of health is slated to be interviewed by a South African Police Services (SAPS) task team today, reveal court documents.

The Special Investigations Unit is also conducting a concurrent investigation.

Catch up on the latest from the arbitration with our Nelisiwe Msomi

Laura Lopez Gonzalez speaks to Tim Modise about who might be held accountable for the tragedy.

But Selebano maintains that he was not responsible for patient deaths following a 2015 Gauteng health department decision to terminate its contract with the private Life Esidimeni hospital group, which cared for more than 1 300 mental health patients.

Many patients were later removed from Life Esidimeni facilities and sent to unlicensed nongovernmental organisations, where dozens died in a process the health department dubbed the Gauteng Mental Health Marathon Project.

“Although my position as head of department required me to oversee the implementation of policies and strategic plans of the department, I had only a limited role in the day-to-day operations and implementation of the [Life Esidimeni] project. This is because the MEC [Qedani Mahlangu] established a separate project team,” argues Selebano in court papers.

“The project was implemented as planned until the MEC established the Project Marathon Team, which fast-tracked the process from May 2016 to complete it within six months instead of the initial intention to deinstitutionalise approximately 20% of mentally-ill patients over year over a period of five years. [I] was not aware of that decision until after it had already been implemented.”

The pending court case may delay his testimony before the arbitration.

Listen: So whose fault was it?

The former Gauteng health MEC says it wasn’t her job to visit organisations prior to transferring state patients into their care.

But advocate for the trade union Solidarity Dirk Groenewald maintains that the health department, as Selebano’s employer, has the power to compel him to testify. Solidarity is representing the families of some Life Esidimeni victims.

“Dr Selebano is still an employee of the department [of health], therefore he has to comply with the department’s instructions,” Groenewald explains.

“Should the department give the instruction to Dr Selebano to appear at these proceedings, and if he does not appear, that would be grounds for disciplinary action against Dr Selebano … There is a distinction between Dr Selebano challenging the subpoena issued by this arbitration and Dr Selebano challenging an instruction by his employee,” he says.

In his February report, health ombudsman Malegapuru Makgoba accused Selebano of tampering with evidence and recommended that he be suspended.

Both Selebano and Gauteng’s head of mental health services Makgabo Manamela were suspended in February. The duo had garnered R1.3-million in wages while on suspension as of September 30, according to a statement by Democratic Alliance member of Gauteng provincial legislature and shadow health MEC Jack Bloom.

Manamela appeared yesterday before the arbitration and unsuccessfully attempted to delay her testimony, arguing that she needed more time to prepare.

Appearing before presiding retired Deputy Chief Justice Dikgang Moseneke, Manamela gave conflicting accounts about whether she had personally assessed each NGO before granting them the licenses to legally house mental health patients.

In his report, Makgoba wrote that the fingerprints of Selebano, Manamela and of former Gauteng health MEC Qedani Mahlangu “peppered” the doomed project.

Both Selebano and Manamela challenged the ombudsman’s findings in the high court in Johannesburg. The court dismissed both cases earlier this month.

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Life Esidimenimental healthGauteng Health Department