Sphelo Samuel, the head of the Public Protector's Office in the Free State, is the latest official to submit an affidavit to Parliament, becoming the most senior staff member in Mkhwebane’s administration to do so to date.

He submitted the affidavit to National Assembly Speaker Thandi Modise on February 11, 2020, asking that Parliament investigate Mkhwebane’s conduct and also the operations of her office.

Samuel has worked for the office for nearly two decades, having held senior positions for most of that time, and now accuses Mkhwebane of mismanagement and other misconduct, including in her handling of the politically sensitive Vrede Dairy Farm investigation.

"I am deposing to this affidavit to bring to the attention of the Speaker… and Parliament… some of the unhealthy working conditions the staff in the PPSA [Public Protector South Africa] 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," the affidavit reads.

Mkhwebane’s spokesperson, Oupa Segalwe, said this was nonsense: "Why would the Public Protector want to destroy the institution?" he asked.

He accused Samuel of acting in bad faith: "Only when action is being contemplated against him… he submits an affidavit to Parliament and, not only leaks it to the media, but actively takes media interviews in contravention of the Public Protector media policy.

"The question that any open-minded journalist should ask themselves is why these affidavits are being churned out in quick succession like this when the Parliamentary process for the removal of the Public Protector has just commenced?"

Samuel’s affidavit follows that of senior investigator Tebogo Kekana, which was submitted to the Speaker in December last year. 

A further disclosure by a former senior manager, advocate Isaac Matlawe, was submitted to the Presidency and the Auditor-General in December 2018.

Vrede dairy scandal

News24 and amaBhungane revealed the existence of Kekana’s affidavit last year and his submissions over Mkhwebane’s alleged misconduct in the Vrede matter, as well as in her CIEX/Reserve Bank probe.

Samuel was key in the Public Protector's investigation into the Vrede dairy farm. In that scandal, the Free State government paid some R330m to Estina, a Gupta front company. Emerging farmers did not benefit as promised.

Mkhwebane has been accused of misconduct in her handling of the investigation, including that she removed proposals recommending further investigations of the roles of former premier Ace Magashule and former agriculture MEC Mosebenzi Zwane.

Samuel says Mkhwebane dismantled an internal peer review mechanism that saw senior managers and investigators sit with the Public Protector to review and scrutinise draft reports before they were finalised.

He alleges: "It also gave her the sole authority to chop and change reports submitted to her by Provincial Representatives and Chief Investigators to suit her and her political motives, and protect those she wanted to protect, without interference or objection from the rest of us. This is demonstrated in her continued reckless litigation and lack of knowledge of the practical application of the law and the growing applications for review of her reports, with dire financial consequences for the PPSA."

Samuel says an example of this was the Vrede report, which has been successfully reviewed and set aside by the Gauteng High Court in Pretoria.

"This investigation has been swept under the carpet, despite some of the findings in respect of Messrs Magashule and Zwane being made in our final draft report submitted to her," Samuel claims.

Mkhwebane denied categorically that the draft report had contained findings against Magashule and Zwane or that she had shielded them during the investigation. She also dismissed the allegations of mismanagement.

In follow-up questions, Segalwe did confirm that the office envisaged a budget overrun with legal costs, an issue raised by Samuel in his affidavit.

'Toxic working environment'

He said an amount of R10m was budgeted, but that it was known then that it would not be enough. According to Segalwe, the "spike" in legal costs was directly linked to the Constitutional Court decision in March 2016 (the Nkandla case) that ruled all Public Protector remedial actions were binding, unless set aside by a court.

"This ruling effectively marked the beginning of the rise in expenditure on legal fees, because every single person or institution against whom the Public Protector makes adverse findings could now go to court to challenge the report," Segalwe said.

Mkhwebane, through Segalwe, also dismissed Samuel’s contention that a toxic working environment existed at her office.

"The Public Protector notes with concern the emerging trend where officials who do not want to be held to account maliciously compile dossiers and submit to Parliament, with the hope that this will influence the process that has unfolded in National Assembly," Segalwe said.

Parliament has, under newly adopted rules, instituted a process to examine Mkhwebane’s fitness to hold office through a multi-party committee investigation.

Speaker Modise has approved a DA motion to start the inquiry.

Mkhwebane, who is the first Public Protector to be subjected to this process, has filed court papers in the Western Cape High Court seeking to interdict Parliament from proceeding with the process. She argues that the rules recently adopted that govern the process were unconstitutional. 

Segalwe said that disclosures by Samuel and Kekana, among others, were not done in good faith, but rather done only when they faced disciplinary action.

Kekana was suspended in 2019 when it emerged he had shared sensitive documents with other union members, allegedly in contravention of internal information protection policies. He is a Public Service Association union shop steward.

Samuel was served with a notice of intention to be placed on suspension when it emerged that one Nchaube Eric Seabi – whom Samuel has been convicted of assaulting in a 2011 scuffle at the Polokwane offices of the Public Protector – had filed a lawsuit seeking R350 000 in damages.

Samuel admitted that he had been convicted, but maintains that the court reached an incorrect verdict and ignored evidence from other Public Protector staff members who were present, who said they witnessed Seabi attacking Samuel first.

Counter charges of assault

Seabi was allegedly unhappy with the outcome of a complaint he had filed with the office, and demanded that Samuel alter the outcome. When Samuel refused, he said a scuffle ensued.

Both men laid charges of assault against one another, but Samuel later withdrew his charge as, he said, he was concerned the court dates would become a nuisance for "such a small issue".

An internal investigation by the executive committee of the Public Protector’s office cleared him of wrongdoing in 2011, but in 2015, after he had already moved to take over the Free State office, Samuel was suddenly served with a subpoena to attend court in Polokwane.

He was found guilty of common assault and handed a suspended sentence or a R2 000 fine, a decision he has taken on appeal, which is currently underway.

Mkhwebane said this week that she had taken Samuel’s version of events into consideration, but that the court had arrived at a different conclusion. She was forced to act following the conviction and the lawsuit.

Read Samuel’s affidavit in full:

Samuel Affidavit to Speaker of Parliament by Kyle Cowan on Scribd

News24