Questions to witnesses in Life Esidimeni case should not be ‘combative’, says advocate
The state has agreed to present evidence to the Life Esidimeni arbitration process but does not want its witnesses subjected to hardline questioning.
The government will have two chances to present evidence and give testimony on the Life Esidimeni tragedy.
First, health ombud Malegapuru Makgoba and the director-general in the office of the Gauteng premier, Phindile Baleni, will present evidence on what transpired leading up to the deaths of more than 100 mentally ill patients.
This will be followed by the testimony of 17 families.
Last, the state’s political heads, Health Minister Aaron Motsoaledi, Gauteng health MEC Gwen Ramokgopa and Gauteng premier David Makhura, will appear as state witnesses and convey the apology and way forward for the province.
On Monday, state advocate Tebogo Hutamo said that while the state had voluntarily subjected itself to the arbitration process, the line of questioning need not be adversarial in nature.
"Clarity-seeking questions must be distinguished from cross-examination," Hutamo said. "Parties should not be seen to be in a combative mode."
The applicants represented by Solidarity, Legal Aid SA and Section 27 were adamant that for the process to be meaningful, full disclosure would be required from state witnesses.
Retired Deputy Chief Justice Dikgang Moseneke said witnesses would be subject to cross examination unless there were compelling reasons suggesting otherwise.
Section 27 advocate Adila Hassim said many of the witnesses lined up by the state were not around when the events transpired, and she questioned why the state had not added former health MEC Qedani Mahlangu to its list of witnesses.
"We are concerned about who will address the apology," said Hassim. "We will seek a subpoena to ensure she forms part of the process in the event that she does not positively respond to requests."
Advocate for three of the families Dirk Groenewald added that there were no CEOs, chiefs of staff or executive members directly involved, on the witness list.
He reminded the delegates that the terms of reference for arbitration were that truthful information be disseminated by relevant parties. However, he pointed out that the lack of consistency in leadership in government would pose serious challenges to who would be able to provide the information.
"It is not possible for us to subpoena people we do not know, but someone must account," he said.
Moseneke advised parties to provide succinct lists of witnesses that they would like the state to assist in bringing to the process. This would be addressed over the next three weeks as the process unfolds in Johannesburg.
The state has agreed to facilitate the process of calling in witnesses as long as they were relevant to the proceedings.