Public Protector ordered to pay R1.5m to official who was dismissed for calling for probe into Mkhwebane

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Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane.
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  • The CCMA ordered the Public Protector to pay Sphelo Hamilton Samuel R1.5 million after he was dismissed in 2020.
  • Busisiwe Mkhwebane dismissed Samuel after he was charged with several allegations of misconduct. 
  • The charges included writing and distributing a disparaging letter about Mkhwebane.

The Commission for Conciliation, Mediation and Arbitration (CCMA) ruled against the Public Protector in a case regarding the dismissal of former Free State provincial head, Sphelo Hamilton Samuel.

The CCMA ordered the Chapter 9 institution to reinstate Samuel and to back-pay the official an amount of R1.5 million.

Public Protector Busisiwe Mkhwebane dismissed Samuel after he wrote to Parliament in 2020 requesting an investigation into the conduct of the Public Protector as well as the financial mismanagement at the institution.

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In ruling in favour of Samuel, the commissioner, James Ngoako Matshekga, ordered the Public Protector to reinstate Samuel before 4 July 2022, in addition to the payment of 12 months' salary, or R1.5 million.

"The dismissal of the applicant [Samuel] by the respondent [the Public Protector] was substantively unfair, but procedurally fair," Matshekga said in his award.

Mkhwebane did not testify during the process.

Letter to Parliament

In 2020, Samuel was the Bloemfontein representative of the Public Protector's office. During that time, he requested the investigation into Mkhwebane.

The Public Protector "hauled [Samuel] before a disciplinary hearing", Matshekga said, and charged Samuel with several allegations of misconduct, including writing and distributing a disparaging letter on a branded letterhead addressed to the Public Protector.

According to the Public Protector, Samuel also conducted media interviews to slam Mkhwebane's conduct, and called for her to step down as Public Protector.

According to Matshekga: "There is a very important point to be made about the respondent's conduct and decision to discipline and subsequently dismiss the applicant for the views he expressed during the various media interviews. As an institution mandate to support and strengthen constitutional democracy, the respondent should be well aware of … the Constitution which guarantees everyone the right to freedom of expression.

"These remarks ring true in this matter. We should be very astute to condone any form of thought-control, however respectably dressed it may be in the name of discipline."

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He added, however, that the Public Protector did not testify during the process, so no evidence was given to justify a finding that Samuel made disparaging remarks about the Public Protector.

Mkhwebane has been in the spotlight as Parliament forges ahead with its inquiry into her fitness to hold office, despite her attempts to prevent it.

Last month, President Cyril Ramaphosa suspended Mkhwebane.


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