Public Protector Busisiwe Mkhwebane. (Photo: Gallo Images / Phill Magakoe)

Free State Representative of the Office of the Public Protector, Sphelo Samuel, has written to the National Assembly Speaker requesting an urgent investigation by Parliament into Busisiwe Mkhwebane’s alleged financial mismanagement as well as the ‘tyranny’ she has unleashed on the office.

Writing to the National Assembly Speaker Thandi Modise on 11 February 2020, Sphelo Samuel, an attorney who is the Free State Representative of the Office of the Public Protector and has served the office of the Public Protector for over 20 years, said he had “no other recourse but to take this step”.

The request for an investigation had come about, he said in an affidavit, due to “the unhealthy working conditions the staff in the PPSA are subjected to, to seek assistance and intervention in rescuing this institution from the tyranny that Adv Mkhwebane is unleashing with a view to end what I and colleagues believe is an orchestrated plan to destroy the PPSA”.

Samuel pointed out in his letter written to the speaker three days after Mkhwebane’s very public 50th birthday party on 8 February 2020.

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The public protector’s Vrede Dairy Project report, which Samuel reminded Modise had been successfully reviewed and set aside by the High Court in Pretoria as well as being queried by the Portfolio Committee on Justice and Correctional Services, had since “been swept under the carpet”.

Mkhwebane had undertaken, at the time, to reinvestigate the matter “with specific focus on the role of politicians in the scheme and interview the beneficiaries of the project”.

However, wrote Samuel:

“On her 50th birthday celebration, which she hosted on Saturday 8 February 2020, Mr Zwane was in attendance. This is the same person she is supposed to be investigating, attending a social function she is hosting.”

Other guests at the birthday bash included former State Security Minister Bongani Bongo, currently facing charges of corruption, as well as former NPA head Nomgcobo Jiba, fired by President Cyril Ramaphosa in April 2019 following an inquiry headed by retired Constitutional Court Justice, Yvonne Mokgoro.

In his letter and accompanying affidavit to the speaker’s office, the Free State head of the public protector said that he was aware “that the majority of my colleagues, across all categories and levels, including managers, have similar concerns as I do about the state of the PPSA since Adv Mkhwebane took office in October 2016 but are afraid to speak out lest they be victimised, and put their jobs in jeopardy as has been the case with a number of colleagues that have left the PPSA with others on suspension.”

He was taking the step of writing to the speaker and Parliament “well aware that I will suffer victimisation the minute Adv Mkhwebane gets knowledge of this complaint”.

He had chosen rather “to speak out and suffer in truth and honour, than keep silent and be perceived to have been an accomplice to the destruction of such a prestigious institution many colleagues, past and present have worked hard to build and dedicated ourselves to the good cause of serving the public”.

Samuel said some of his colleagues had been forced into resignation and that he too had considered this option “but chose not to succumb to intimidation. I am also raising it as I take the Speaker and the role of Parliament over the PPSA and other institutions into my confidence”.

Samuel said that he knew that Mkhwebane “will seek to project me as a monster that has been convicted by a court for allegedly assaulting a member of the public, which assault I deny”.

He set out in his affidavit an incident which took place in at the public protector’s offices in Polokwane in 2011 where he was employed. A complainant had, said Samuel, “barged into my office when I declined to see him immediately as he demanded”.

The man had then attacked him, said Samuel, while he was taking a call on his landline.

“I tried to push him out of my office and in the process, we both fell as he was holding on to my shirt. I was rescued by my colleagues.”

Samuel said he immediately reported the matter to the CEO who ordered a private security company to protect staff at the Polokwane office. Samuel said he then filed a report on the assault “which was discussed at the Executive Committee meeting soon thereafter”.

He had also reported the matter to the SAPS in Polokwane as instructed by the CEO, but when he had arrived at the police station to lodge the charge, the complainant was laying a charge against Samuel.

“Both cases were thrown out of court by the Senior Public Prosecutor as he was of the view that the complainant had, in fact, attacked me in my office and I was not particularly interested in pursuing the case against an elderly man,” said Samuel.

Samuel said he was later surprised in 2017 to be served with a subpoena by two female police officers in Bloemfontein to where he [Samuel] had relocated in 2015.

“It transpired that the Senior Public Prosecutor had received instructions to resuscitate the matter following the complainant’s complaint.”

Samuel said he was ultimately found guilty of common assault and sentenced to two months imprisonment or R2,000, half of which was suspended.

He alleged that Mkhwebane sought to use this case “to pursue her agenda of purging me as she has done with a number of my colleagues”.

“It is her modus operandi to tarnish the image of those that she is targeting by laying charges against them, just to have their names tarnished. This she does especially to Senior Managers who she perceived to be a threat to her intellectual and legal knowledge, which I submit she lacks considerably.”

Samuel accused Mkhwebane of introducing “an unhealthy environment of fear, intimidation and mistrust among staff members”, and that she had appointed “compromised people into positions of authority so that they can carry out her orders without question”.

One such appointment, he said, was that of the then CEO, Vussy Mahlangu, who had since left the office “amid pressure from the Public Servant’s Association (PSA) which is the majority union representing the PPSA”.

Mahlangu was “compromised,” said Samuel, as he had been appointed after he was “reportedly dismissed from the Department of Rural Development and Land Affairs following a guilty finding on corruption-related charges in the internal disciplinary hearing”.

Mahlangu, said Samuel, had “issued threats and intimidated staff”, and those who had felt the brunt of Mahlangu’s modus operandi were Chief Investigators, Abongile Madiba and Lesedi Sekele, as well as Executive Manager, Pona Mogaladi, Chief Operations Officer, Basani Baloyi and Senior Investigators, Teboho Kekana and Advocate Issac Matlawe.

Mkhwebane, said Samuel, had “plunged the PPSA into financial ruin as she is running the institution as her personal fiefdom. For instance, this office has for the current 2019/2020 financial year, budgeted R10-million for legal fees”.

This was “a record high amount”, the highest since the inception of the office. He said that as at the end of December 2019, expenditure on legal fees by the public protector’s office amounted to just over R20-million, “with R6.8-million committed already to the remaining quarter”.

This would result in the projected overspending of just over R17-million by the end of the financial year.

“This is happening because of Adv Mkhwebane’s reckless litigation at office expense, on litigation that does not improve the jurisprudence of the PPSA, and does not enhance its effectiveness,” said Samuel.

Other programmes of the public protector were suffering as a result of this expenditure. Samuel said that for “approximately two years now, the office investigators and Outreach Officers have been operating without vehicles”.

In provinces where the public protector had regional offices such as in Phuthaditjaba in QwaQwa, which fell under the Maluti-a-Phofung Municipality “we have been reduced to running those offices from our desks, with no regular file inspections and guidance to investigators”.

“The institution is now directionless and may not recover from the ruin it is destined for under the leadership of Adv Mkhwebane,” warned Samuel.

He added that Mkhwebane had isolated management of the public protector’s office from decisions and any opposition against her “tyranny”.

This was done to isolate and divide the management team, which used to meet once a quarter at Head Office for management meetings and the Task Team sittings. These sittings had later been abandoned by Mkhwebane.

The only way Samuel’s complaint to the speaker can be investigated is if Parliament, with its oversight function, orders a report after a resolution taken in the House.

Parliament could, however, in the meantime order a hearing with Samuel, Mkhwebane and others to investigate these allegations of financial mismanagement and bad conduct. In the end, it would still be up to the NPA and others to act on the matter. The speaker would have to refer this complaint to the Justice Committee, which would have to find time to schedule a hearing.

Daily Maverick has sent Samuel’s affidavit and letter to Modise, and to public protector spokesperson Oupa Segalwe for a right of reply but did not receive a reply. This is a developing story. DM