Retired Deputy Chief Justice Dikgang Moseneke is heading the arbitration hearings between the State and the families of victims in the Life Esidimeni tragedy. Picture: Nokuthula Mbatha/ANA

Johannesburg - The continued delay by the police in exhuming bodies to get pathological evidence on the cause of death of the former Life Esidimeni patients could result in the probe being futile, an arbitration hearing into the tragedy heard on Thursday.

In her cross examination of Major-General Charles Johnson, Advocate Adila Hassim raised her concern that two separate letters sent to SA Police Service (SAPS) management by rights organisation Section 27, detailing the extend of the tragedy and possible crimes committed, were never considered by police bosses.

"Can you explain, as per September 20, 2016, letter to SAPS, no urgent steps were taken to investigate? The letter was sent to Atteridgeville station commander, commissioner of police, the minister and a captain Mwanza from Atteridgeville this date, no response to the letter has been received by Section 27," Hassim told Johnson.

"Why was there no exhumation of bodies at the time this was brought to the attention of the police?"

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Johnson said it was the first time he heard of the letters to top police management.

"I do not know of this communique, if that was directed to a station commander as you say, then he or she should be held accountable, there is a legal obligation to act. I cannot comment on it as it was not addressed to soon as the Esidimeni matter was brought to my attention, I acted...I do not know why the police did not act."

Hassim represents over 50 families of the Life Esidimeni victims.

"It has been over a year now since the bodies have been buried, and postmoterms have not been performed on many of these bodies. Would it not be imperative then that there is exhumation of the bodies in order to establish the cause of death?," she asked Johnson.

"You mentioned in your testimony that exhumation has not taken place yet, that you are awaiting expert opinion."

Johnson replied: "No, I am not waiting for expert opinion in order to do the exhumations. I testified that we were, upon conclusion of our investigation, guided by a pathologist and the [National Prosecuting Authority] NPA regarding the feasibility of exhumations in order to determine cause of death...that is my testimony."

Hassim asked Johnson: "So no exhumations have taken place? If it is not feasible, how do you investigate? How do you determine cause of death if the bodies have been interred for more than a year and as times passes, the harder it becomes for an exhumation to yield anything useful? What is the feasibility going to be later on if it is not feasible now?" 

He proceeded to explain the legal process in exhuming of bodies, commencing with an investigating officer approaching a prosecutor requesting a court order for such an exhumation.

Hassim told Johnson that her question was not on exhumation procedures, but on why there has been no exhumations, taking into consideration that the police had been satisfied that the deaths were actually not due to natural causes, as stated on death certificates obtained by NGOs.

Johnson said he could not approach a court asking for exhumation without evidence. There has to be an investigation.

Arbitration chairman, former Deputy Chief Justice Dikgang Moseneke asked why the police did not urgently approach the court for exhumation orders.

"The question is, after your concession that this was an urgent matter, [why did you not] act to get exhumation orders? Or why didn't you urgently investigate in the face of clear requests put to you in writing pointing to the urgency and asking police to investigate.. because really, evidence might disappear. Do you know why your colleagues did not act promptly...from minister right to station commander?" Moseneke asked.

Johnson replied: "I do not know. The only reason why as investigators we have not gone for exhumations was that we are guided by the prosecutor, with whom we regularly meet regarding the status of this investigation. At this stage we have not get an indication from NPA to exhume, we also as police have not done such a request."

Moseneke said it is known that every passing day renders a postmoterm examination inconclusive. 

"It is well known through forensic pathology that within the first six months in summer and maybe nine months in winter, decomposition is almost complete...and beyond a year you'll probably going be confronted with just skeletal framework of the body. In effect counsel [Hassim] is saying that inaction on the part of police from September last year, the result now is that the examination of buried bodies might very well not be useful?" he asked.

Johnson nodded and said he agreed with Moseneke. He further agreed with Hassim that there should be a probe into the failure of his colleagues to act sooner on the Esidimeni tragedy.

The recipients of the letters from Section 27 should appear before the arbitration and answer questions posed by Hassim, said Johnson. 

"I was assigned to investigate the deaths of patients moved from Esidimeni..acting national commissioner must decide who will investigate that failure to follow up on Section 27 letters, not me."

The botched relocation of more than 3,000 former Life Esidimeni patients to unlicensed NGOs resulted in 141 of them dying due to starvation and neglect. Fifty nine of the patients are still unaccounted for.