‘Public protector’s office splashed out on litigation fees while its core functions suffered’

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Sphelo Samuel testifying before the Section 194 Committee at Parliament. Photo: Jan Gerber/News24
Sphelo Samuel testifying before the Section 194 Committee at Parliament. Photo: Jan Gerber/News24


Money in the office of the Public Protector was allegedly diverted from funding core work to paying for “reckless litigation” to defend reports by suspended Public Protector Busisiwe Mkhwebane.

This was revealed by the recently reinstated head of the Public Protector’s Free State office, Sphelo Hamilton Samuel. He was the fourth witness in Mkhwebane’s impeachment inquiry.

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Samuel was suspended in 2020 after he called for Mkhwebane to resign “to maintain the integrity of her office”. He accused her of being incapacitated. In June, the Commission for Conciliation, Mediation and Arbitration ordered the reinstatement of Samuel and that he be back paid R1.5 million.

On Wednesday, Samuel told the section 194 committee that he had written to then speaker of Parliament Thandi Modise in 2020 “out of extreme concern for what I regarded as a decline within the OPP [office of the Public Protector]”.

He said his concerns emanated from the several instances of “reckless litigation” the office had to defend because of Mkhwebane’s reports.

It is litigation that is basically ill-informed, that is not necessary, that only takes place because we have the money as an institution to engage in that litigation, [but] it doesn’t bring any value to the institution. And the decisions taken to engage in that litigation are really unnecessary.

Samuel said the litigation, where courts mostly found against Mkhwebane, gave rise to criticism against the office of the Public Protector, and put the office in a “bad light”.

“It reflected generally that we did not know what we were doing. There was a marked decline in the confidence of the office from the time before Advocate Mkhwebane came in and during her term.”

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Lead evidence leader Advocate Nazreen Bawa further asked Samuel why the litigation against Mkhwebane had concerned him and how it had affected his work or that of the Free State office.

He said other programmes, which were important to how the office of the Public Protector did its work, suffered.

The money that was budgeted for other programmes was now diverted to legal fees. And the principle we followed until then was that we were not an institution that was involved in litigation as our primary function. But, this trend showed that we were slowly getting more litigious and to the detriment of other programmes, and this affected the province that I was responsible for.

He mentioned that some of those programmes, which included outreach clinics, had been significantly reduced, from 803 in the 2016/17 financial year to just 208 in the 2017/18 financial year. The outreach clinics were important and formed part of the constitutional mandate of the office of the Public Protector – to be accessible to communities.

He said that, through the outreach clinics, they could go to far-flung communities that would not ordinarily have access to the office of the Public Protector or know its functions, and they would educate those communities about the work that they did and assist with complaints.

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In fact, when Mkhwebane had started in the job, she had had the Vision 2023 that entailed making the office more accessible. The vision would require that more time and resources be dedicated to the services going to “communities living on the margins of society”.

“She stated that it was her belief that they too deserved a taste of the fruits of freedom and democracy. And that we intend to achieve this by broadening access to services, especially to rural and impoverished communities,” said Samuel. He went on to explain that, by 2017/18, however, this had not happened, and claimed funds were now diverted to litigation fees and this meant they could not reach the communities where their services were needed most.

According to annual reports, which were part of Samuel’s testimony, in 2016, the Public Protector’s office spent just over R5.6 million on legal fees. This amount climbed to R6.4 million in 2017. By 2019, legal fees stood at R17 million and they were just over R47 million in 2020.

‘Cost cutting’

Samuel said the chapter 9 institution implemented several cost-cutting measures on nonessential expenditure in 2017, including on travel, accommodation, catering, advertising and outreach programmes.

He said the office had reduced its expenditure from R9.5 million in the 2016/17 financial year to about R3.5 million in 2018/19.

Bawa asked Samuel what was wrong with implementing cost-cutting measures. To which he responded that it had no benefit.

Samuel said: 

It was actually absorbed in litigation costs. That is what I meant by saying that a lot of other programmes suffered because what we were supposed to do, for instance, for outreach or even for investigations, travelling to wherever we had to travel to – that money was then channelled elsewhere to litigation. And outreach cannot be described as a nonessential expenditure. It is a constitutional imperative.

He also told the committee that travelling was prohibited and this hampered the work of the investigators.

“It literally stopped and the vehicles that we had as pool vehicles in order to travel for outreach or investigations were grounded. All travelling was cancelled, including for senior managers. We had to use our own vehicles but claim for the travelling expenses.

“We effectively did our investigations from the office by either calling the departments or sending emails and so on. We could not go and do inspections or go and meet with complainants and so on.”

He said he had raised these concerns at management meetings and would be told to take them out of that platform and address them with the CEO. The CEO would say the budget has been depleted and there was no money to do the work.

Mkhwebane’s lawyer, Advocate Dali Mpofu, cross-examines Samuel on Thursday.

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