Suspended Gauteng Health Department head Tiego Ephraim Selebano has gone to court over a subpoena requesting him to appear at Life Esidimeni arbitration hearings next month.
Selebano wants the South Gauteng High Court in Johannesburg to set aside the subpoena and has claimed in papers filed on Tuesday that he feared incriminating himself.
The application was lodged against Gauteng Premier David Makhura and Gwen Ramakgopa, who issued the subpoena requesting him to appear before Justice Dikgang Moseneke on December 4.
Selebano believes that the issuing of the subpoena was an abuse of court process because "I am not being called as a witness to give evidence relating to any dispute between the parties, but purely because the parties wish to interrogate me regarding my role in the Deinstitutionalisation Project".
Explaining the Deinstitutionalisation Project, Selebano said, prior to 2015, a number of mental health patients were in the care of the Life Healthcare Esidimeni Hospitals, which were paid for by the Department of Health.
"In February 2015 a decision was taken by the member of the executive committee for health in Gauteng, Ms Qedani Dorothy Mahlangu, to deinstitutionalise mental health care at LHEH."
Selebano said, while he was the head, he had little to do with the day-to-day implementation of the project because then MEC, Qedani Mahlangu, had established a separate team to spearhead the project, led by Levy Mosenogi.
He said the project was implemented as planned until Mahlangu established a 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 the patients per year over a period of five years.
Advised not to appear as witness
"It was apparently primarily a result of the fast-tracking of the Deinstitutionalisation Project of mental health care patients sadly passed away," he said.
Subsequently, health minister Aaron Motsoaledi appointed an ombudsman (Malegapuru Makgoba) to investigate the circumstances surrounding the deaths.
On February 1 Makgoba published his report and Selebano appealed Makgoba's findings.
Salebona said: "I had lodged an appeal against the findings of the ombud insofar as they relate to me, and that I did not accept correctness of those findings.
"The Gauteng Department of Health has instituted disciplinary proceedings against me, seeking my dismissal, and that these proceedings are still pending.
"Any evidence given by me could be used against me in my disciplinary proceedings, and there was no undertaking to do so."
Selebano said he had been advised not to appear as a witness before the arbitration process until his appeal against Makgoba's report and disciplinary hearings had been finalised as this would prejudice his rights in these matters.
'Abuse of court'
He said there was no legitimate purpose in seeking to subpoena him.
He said he instructed his attorneys to seek urgent relief in the High Court to set aside any subpoena on the basis that it was improperly sought and granted.
"And that it is vexatious and amounts to the abuse of court."
Selebano's attorneys at Ramsey Webber declined to comment on the matter as it was still pending before court.
Spokesperson for the office of the premier, Thabo Masebe, said the office of the premier and the Department of Health intended opposing Selebano's application and would file their papers soon.
News24 reported on Wednesday that Salebano was one of three key witnesses expected to testify on what led to the deaths of at least 141 mental health patients, who had been moved from Life Esidimeni to unlicensed NGOs.
The other two key witnesses were Mahlangu and Dr Makgobo Manamela, suspended director of mental health review board.
The respondents have until November 17 to file affidavits if they intend to oppose the application.
The application is expected to be heard on November 28 at 10:00.