On Wednesday, Sphelo Samuel, who in 2000 joined the Office of the Public Protector, came to Parliament to testify in the Section 194 inquiry into the fitness of suspended Public Protector Busisiwe Mkhwebane to hold office. 

Samuel has been going to his office again since winning reinstatement as the head of the Free State Office of the Public Protector at the Commission for Conciliation, Mediation and Arbitration (CCMA) in late June. 

Yes, he’s allowed into the office, Samuel told Daily Maverick, but he’s not given any tools of the trade, or work. And it appears that notice of the Public Protector’s appeal against the decision to reinstate him will be served this week. 

“It has been a very difficult two years,” said Samuel.

He was suspended — and ultimately dismissed — after he made a protected disclosure to Parliament on 11 February 2020, in which he called for an investigation into the running of that office, including concern over rising litigation costs.

Like former Public Protector senior investigator Tebogo Kekana, who had sent his protected disclosure dated 12 December 2019 to Parliament while on suspension before dismissal, Samuel received an acknowledgement of receipt. Nothing further seems to have happened; to anyone’s best recollection, the protected disclosures were not discussed in the justice committee to which the Public Protector reports. 

Kekana has taken his dismissal to the Labour Court; Samuel is readying himself for an appeal by the Public Protector against his CCMA-ordered reinstatement.  

A third whistle-blower who testified before the parliamentary inquiry into Mkhwebane’s removal from office on the grounds of misconduct and/or incompetence was former South African Revenue Service (SARS) official Johann van Loggerenberg. In 2016 he had approached former Public Protector Thuli Madonsela about State Capture at the tax agency.

Exploding litigation costs

But on Wednesday, the focus was on a central tenet of why Samuel took the step of making a protected disclosure in the first place — exploding litigation costs that in the 2018/19 financial year almost doubled from the budgeted R10-million. 

In the 2019/20 financial year, legal costs had rocketed to R47,209,433, up from R17,109,915. All of this is in the Public Protector’s annual reports and performance plans that are submitted to MPs for scrutiny.  

A recent parliamentary reply to DA MP Glynnis Breytenbach showed the Public Protector spent R38,878,530 on litigation in the 2020/21 financial year and R28,244,241 in the 2021/22 financial year.  

The R67-million spent on litigation over two years is more than just a number — the real-life impact of this legal expenditure was reduced community outreach clinics, and the halting of site visits and investigative interviews.

“Other programmes in the office would suffer because money that was budgeted for other programmes was now diverted to legal fees,” Samuel told MPs of what he called “reckless litigation” that pushed investigators into doing their jobs from their desks, sending emails.

“It affected our targets, which would have been reduced. But it means we could not reach the communities, which needed our services…  Travelling was not allowed. It literally stopped [for outreach and investigations].”

Samuel said he had raised this, repeatedly. Until then, the principle had always been that the Public Protector was “not an institution involved in litigation as a primary function. But slowly we were getting more litigious and that affected also the province.”

MPs would have been presented with reduced targets of community outreach as part of their annual oversight cycle. But scrutiny would require tracking numbers of community outreach clinics over years, as often the official documents presented to lawmakers simply state a number as the target and another number as having been achieved. If the achieved number is bigger than the target, it’s presented as surpassing institutional targets.

To illustrate with a hypothetical example: if 300 community meetings are achieved one year, but the target of the next year is reduced to 250 meetings and 265 meetings are achieved, it looks positive. However, the net effect is an actual qualitative reduction of 35 community meetings. 

It’s the departmental massaging of numbers to make themselves look good — the Office of the Public Protector is by no means alone in this — and it requires parliamentarians to be sharply focused on cutting through this nonsense. 

“It is easy to exceed the targets if you reduce them,” is how Samuel put it. 

While media reports when Mkhwebane took office in October 2016 focused on her changing the office television channel to the now defunct, Gupta-owned ANN7, other changes on her watch cut qualitatively deeper. 

Mandatory security vetting

One was the introduction of mandatory security vetting; previously staff had signed confidentiality agreements every year. 

“We were very reluctant to accede to security clearances. We saw that as a way of removing us, as happened to the then chief financial officer Kennedy Kaposa,” said Samuel, adding the work did not involve secrecy. “Our documents were never classified.”

Other changes affected investigations.

“She [Mkhwebane] introduced a system where we had to populate a spreadsheet, quite a large one, every week. It shifted our focus from investigations to meeting our deadlines,” said Samuel. 

“What was objectionable was the fact that in order to provide this information was to have our own meetings, so we spent most of our time in meetings, collating that information, checking that information.”

This triggered malicious compliance. And staff morale plummeted, particularly as “threats” of action came with missing deadlines.

Outside influence

On Wednesday, Samuel continued with what has emerged as a common thread in the impeachment hearings to date — how Mkhwebane, at best, accepted, at worst, facilitated, outside influence on the Public Protector’s work. 

This time it was to remove any mention of politicians from the report of the Gupta-linked Vrede Dairy farm project that saw millions of rands redirected to business associates linked to the Gupta brothers, leaving the intended beneficiaries stranded without any benefits.  

At least one of the intended beneficiaries who spoke out, Philemon Ngwenya, was killed, as was a whistle-blower in the Free State agriculture department, auditor Moses Chaka, who died after being kidnapped and tortured in February 2013.

The “culture of fear, impunity and lack of accountability” that surrounded the Vrede Dairy Farm project was also highlighted by the State Capture Commission report that recommended all cases of murder, assault and intimidation related to the project be reopened, and that former Free State premier and now suspended ANC Secretary-General Ace Magashule should be criminally investigated.

Samuel told MPs how Magashule and Free State MEC Mosebenzi Zwane had ignored his requests for interviews. Because Mkhwebane had centralised the subpoenas of politicians in her office, he had to ask her to approve this step, which he did during her April 2017 visit to the project.

‘No findings against politicians’

“Her response was she did not want any findings made against politicians. So she declined my request for subpoenas,” said Samuel.

“I accepted her directive… I prepared a draft [report] and made findings against the two politicians. It was impossible for the  head of department to have proceeded with the project without them.”

That was removed from the final report, as were the investigators’ photographs showing, for example, how a plain guardhouse was overpaid for.

Earlier in the inquiry, Kekana had told MPs the State Security Agency officials handed in a note with a proposed constitutional amendment that featured in the report on the Absa/Bankorp bailout. 

Van Loggerenberg referenced a recording in which it emerged that Mkhwebane had kept quiet about the fact that she had the 2014 Inspector-General of Intelligence’s report into a so-called intelligence unit at the SA Revenue Service when she should have disclosed this for others to have the opportunity to respond.

On Thursday, Mkhwebane’s advocate, Dali Mpofu SC, will cross-examine Samuel — probably with the aim of establishing him as a disgruntled, disingenuous staffer, if the pattern established with previous whistle-blowers holds. DM