Are the Life Esidimeni hearings an arbitration process or not?
This was the question around which the main argument in the South Gauteng High Court in Johannesburg on Wednesday was centred in a matter involving suspended Gauteng health department head Tiego Ephraim Selebano, who is challenging a subpoena requesting him to appear before the Life Esidimeni arbitration hearings on the deaths of more than 140 mentally ill patients.
Judge Daniel Berger reserved judgment in the matter saying he would hand down judgment on Monday at 10:00.
"I know that the subpoena requires Dr Selebano to appear at the arbitration on Monday at 09:00. I want to direct that he be excused until I give a ruling," Berger said.
The application was lodged against Gauteng Premier David Makhura and health MEC Gwen Ramokgopa, who issued the subpoena requesting Selebano to appear before Justice Dikgang Moseneke on December 4 (Monday).
Selebano wanted the court to set aside the subpoena and has claimed in court papers that he feared incriminating himself.
Hearings compared to inquiry
During the court proceedings, both parties poked holes at each other's submissions.
Selebano's lawyer, Advocate Craig Watt-Pringle SC, argued that the proceedings were not an arbitration process and therefore the State did not have the power to issue a subpoena under the Arbitration Act.
Watt-Pringle said the hearings were being conducted like a commission of inquiry instead of an arbitration process.
"There is very little difference between this and the Marikana Commission."
He said the matter could not be considered an arbitration process because there was no dispute.
"They commenced with the leading of evidence without a dispute. There is nowhere (in the papers) where it says the families want R10m and the government wants to pay them R1m and then the arbitration has to determine the outcome," Watt-Pringle said.
'Appearance could clarify events'
"The objective of this is to throw as much evidence into the pot so that everyone finds closure."
He said the process had traits of a commission of inquiry and the Truth and Reconciliation Commission.
Berger said Selebano's appearance at the hearings could provide a complete picture of what really happened.
"Providing families with closure is a form of redress but the question is: Can you issue a subpoena?" asked Watt-Pringle.
Berger responded by saying that part of closure was receiving compensation.
"And this subpoena seeks to get the head to say what he knows and what led to the deaths of the mentally ill patients and his role in the matter."
Hearings have 'features of arbitration'
Advocate William Mokhari, for the State, asked the court to dismiss the application with costs.
Mokhari said in the arbitration agreement, issues that needed to be dealt with were compensation and overseeing redress.
"You cannot resolve something without a dispute. Resolution means there's an outstanding issue. This means that there is a dispute.
"The parties in the arbitration are agreeing that it is an arbitration. It is happening in view of the public, witnesses are testifying and being cross-examined. These are all features of arbitration proceedings," Mokhari said.
He said arbitrations were by nature formulated to resolve matters under their own terms of reference.
Turning his attention to the issue of the subpoena, Mokhari said witnesses who cooperated did not need to be issued with subpoenas.
Process seeks to 'nail' Selebano
"Not only is he the head, he is the accounting officer, he must come and explain because he was the one who signed. He must go and tell the arbitration so that the arbitrator can determine an appropriate award (compensation)."
He added that Selebano could also use the opportunity to tell Moseneke that "they got the wrong man".
Mokhari said Selebano would not be prejudiced because the matter was being handled by an experienced "umpire" so there was no basis for his application.
Responding to the State's submission, Watt-Pringle said the arbitration process sought to cross-examine Selebano with the purpose to "nail him".