PP Inquiry day 9: Sphelo Samuel

Meeting report

Opening Remarks
The Chairperson made brief opening remarks and welcomed those in attendance, including the Public Protector, Adv Dali Mpofu, evidence leaders Adv Nazreen Bawa and Adv Ncumisa Mayosi and visitors from the African Ombuds Office.

Remarks by Public Protector’s Legal Team
Adv Dali Mpofu thanked the Committee for allowing the Public Protector and himself to be in court on 25 and 26 July. The case was finalised and judgment was reserved. As far as it would have implications for this process, he would update the Committee if and when that was.

On 18 July 2022, a letter was written to the Committee tabling various issues which might crop up as the Committee proceeded. He was happy to have received the Committee’s response dated 22 July 2022 to that letter. Some of the matters, according to the response, had been referred for legal opinions. He awaited the outcomes of that, if there was anything still outstanding.

On 19 July 2022, a letter was written to the President of South Africa requesting the President to voluntarily testify - this is as contained in Committee Directive 5.9. The reasons for this request were outlined in the letter. He would send this to the Committee in due course, when the next step was taken. A response was received from the President on Monday 25 July 2022, which was the deadline. The President declined the invitation to testify voluntarily. This correspondence would form part of what would be sent to the Committee as part of the next steps in ensuring the President’s attendance.

Mr B Herron (GOOD) noted that the directives had not been amended, directive 5.9 still stood. Questions had arisen out of Mr Kekana’s contributions that the Committee had wanted to pose to the Public Protector. Those questions were not asked, because the Committee needed to debate if Directive 5.9 needed to be amended. He asked for clarity about when those questions could be posed to the Public Protector.

The Chairperson stated that he would respond to this during the course of the day.

Vrede Dairy Project complaint against Public Protector: background
Adv Nazreen Bawa stated that the witness would predominantly speak about the Vrede matter.

Adv Ncumisa Mayosi provided background to the relevance of the witness and introductory remarks about the Vrede Dairy Project and the reasons there was a complaint against the Public Protector arising from that matter.

The Vrede Dairy Project complaint against the Public Protector emanated from three complaints made by Dr Jankielsohn of the Free State Provincial Legislature to the Office of the Public Protector. His first complaint was on 12 September 2013, he lodged another complaint in March 2014 and again in May 2016. Prior to that National Treasury had investigated the Vrede Integrated Dairy Project in June 2013. National Treasury’s Chief Procurement Officer had enlisted National Treasury to investigate allegations of procurement irregularities allegedly committed by the Free State Department of Agriculture and Rural Development. ENS Forensics was then commissioned to assist National Treasury with this investigation. Some procurement irregularities were identified. Certain disciplinary actions were recommended by ENS Forensics, arising from its investigation.

The Office of the Public Protector investigation in response to the Jankielsohn complaint led to the provisional report dated November 2014. It was unsigned and in the name of the former Public Protector, Adv Thuli Madonsela. The matter of who the report should be attributed to was a matter that the witness would testify about. The current Public Protector issued the final report on the investigation on 8 February 2018 as Report No 31 of 2017/18. Her findings identified procurement irregularities and a failure to comply with National Treasury prescripts. In her remedial action, the Public Protector required the Free State Premier to institute disciplinary action against implicated officials in the Vrede Dairy Farm project.

On 20 February 2018, court proceedings were launched stating that the Public Protector had acted unlawfully and in violation of her constitutional mandate and that the report should be reviewed and set aside. Later that same month the Council for the Advancement of the South African Constitution (CASAC) launched proceedings seeking the review and setting aside of the report. The applications were based on the same facts and were heard simultaneously. Judgment was handed down on 20 May 2019. The Court declared that in conducting her investigation and reporting on the Vrede Dairy Project, the Public Protector had failed in her duties, under sections 6 and 7 of the Public Protector Act and section 182 of the Constitution. Report No 31 of 2017/18 was set aside and declared to be unlawful and unconstitutional. The court reserved judgment on costs. This judgment was reserved pending the Constitutional Court Judgment in the Public Protector versus the South African Reserve Bank matter, which dealt with an award of a punitive cost order by the High Court in that matter against the Public Protector in her official and personal capacity. The Constitutional Court handed down judgment in July 2019. Thereafter the High Court handed down judgment on costs on 15 August 2019. The Public Protector in her official capacity was ordered to pay 85% of the costs of the Democratic Alliance and of CASAC on an attorney and client scale, which costs include costs of two counsel. The Public Protector in her personal capacity was ordered to pay 7.5% of the costs of the DA and of CASAC on an attorney and client scale, which costs will include the costs of two counsel. The Public Protector applied for leave to appeal, appealing both judgments on the merits and on costs. The hearing happened on 11 December 2019. Judgment was given on 13 December 2019 and leave to appeal was dismissed on both judgments. The complaints against Adv Mkhwebane about the Vrede Dairy Project concerned both the manner in which she allegedly conducted the investigation and the manner in which she conducted herself during the litigation. She was said to be guilty of misconduct.

Witness: Mr Sphelo Samuel
Ms Fatima Ebrahim, Legal Advisor at Parliament, read the oath to the witness and swore him in.

Evidence Leader Adv Nazreen Bawa: You provided the evidence leaders with an affidavit. And you have a copy of that affidavit before you correct?

Mr Samuel: That is correct.

Adv Bawa: There is also a previous affidavit, which was provided to the Speaker of the National Assembly on 11 February 2020. The affidavits are in Bundle D. The first one which I'm going to spend a considerable amount of time with is located on page 2069. It's item eight. The second affidavit is located on page 2747. Mr Samuel, you are an attorney of the High Court of South Africa, correct?

Mr Samuel: That is correct.

Adv Bawa: You were so admitted in 20 April 1995.

Mr Samuel: Correct.

Adv Bawa: You hold a B. Proc degree from the University of KwaZulu Natal (the University of Natal). You have practised law and worked briefly as the Executive Officer for the Law Society of the Free State.

Mr Samuel: That is correct.

Adv Bawa: You joined the Office of the Public Protector on a December 2000.

Mr Samuel: That is correct.

Adv Bawa: You joined in the capacity as senior investigator. You held that position for nine years. Thereafter you were appointed as the provincial representative of the Public Protector in Limpopo.

Mr Samuel: That is correct.

Adv Bawa: You stayed there until 2015. You were then transferred at your request to the Free State Provincial Office as provincial representative.

Mr Samuel: That is correct.

Adv Bawa: You held that position for some 20 years prior to dismissal, which we will deal with in greater detail later.

Mr Samuel: Correct. That position I held only for 11 years but in total I've been in the employ of the Public Protector for 20 years.

Adv Bawa: Not to leave that hanging, subsequent to that you were reinstated.

Mr Samuel: That is correct.

Adv Bawa: We will deal with those details as we go on. Mr Samuel, I want to deal in the first instance with the matter which Adv Mayosi dealt with, and that's the matter in your affidavit on page 2116, from paragraph 30 onwards. This was an investigation that commenced during the term of Adv Madonsela. Correct?

Mr Samuel: That is correct.

Adv Bawa: The investigation had not yet been completed by the time she had vacated the Office

Mr Samuel: That is correct.

Adv Bawa: The report, which Adv Mayosi referred to, was published in February 2018. Correct?

Mr Samuel: That is correct.

Adv Bawa: When did you first have any involvement in the investigation? During your transfer to the Free State office in 2015?

Mr Samuel: I became involved in the investigation when I transferred to the Free State Provincial Office in 2015. But prior to that, this report was presented at the think tank during Adv Madonsela’s term, and so, I knew about this investigation.

Adv Bawa: So, a report that had been presented to the think tank during Adv Madonsela’s term?

Mr Samuel: That is correct.

Adv Bawa: By virtue of your transfer to the Free State, did it now fall under your supervision of investigation?

Mr Samuel: That is correct.

Adv Bawa: Who were the assigned investigators?

Mr Samuel: The assigned investigator was Adv Erika Cilliers – she was assisted by some investigators in the office, including Mr Sisa Mlonyeni.

Adv Bawa: You indicate in paragraph 132 that at the time you had taken office in 2015, there was a draft of the Vrede report dated November 2014, which had been prepared by Adv Erika Cilliers.

Mr Samuel: That is correct. The draft was referred back for further investigation because Adv Madonsela was not happy with the fact that it was it was not wide enough, including the role of politicians.

Adv Bawa: How did you come to know that Adv Madonsela was not happy about that?

Mr Samuel: It was noted in a think tank before I transferred to the Free State. Then when I was in the Free State, she spoke to me to take charge of the investigation and explore the role of politicians.

Adv Bawa: In paragraph 133, you saw that another draft was prepared in 2016. What transpired with that draft?

Mr Samuel: Yes, that is correct. Adv Madonsela was still not happy with that draft. She sent it back again and requested that I take charge of the report and expedite it.

Adv Bawa: You refer to a draft prepared in 2016, if we turn to p. 2200, can you identify this email?

Mr Samuel: Yes, this was an email sent by Adv Cilliers to me and copied to other members of the Free State Office, a number of reports were attached for the think tank. Amongst those reports was the Vrede Dairy Report.

Adv Bawa: If you go to the next page, is this an extract of the report that was attached to the email?

Mr Samuel: Yes, that is correct.

Adv Bawa: And if you turn to p. 2000…actually, you can stay on p. 2203 where we are. In the top heading, the date still says November 2014. Can you explain that Mr Samuel?

Mr Samuel: This report was the initial report, the reference to November 2014 was the reference to the very first report that was submitted to the think tank. Further drafts would still reflect the date of November 2014. The later reports were not updated to reflect the period when the reports were revised and sent through.

Adv Bawa: If you go to p. 2217, further down on the page you will see whose name was signed at the end of that report.

Mr Samuel: It reflected the name of the Public Protector Adv Mkhwebane.

Adv Bawa: It says she was assisted by the Free State Provincial Office.

Mr Samuel: That is correct.

Adv Bawa: Why was that the case at the time Mr Samuel?

Mr Samuel: Could you repeat the question please?

Adv Bawa: How come her name was at the end of the report?

Mr Samuel: It was on this report because she had already been appointed as the Public Protector.

Adv Bawa: When Adv Cilliers sent that email off on 14 November 2016 with a draft report attached Adv Mkhwebane’s name is at the end of the report.

Mr Samuel: That is correct.

Adv Bawa: If you go back to p. 2117 of the affidavit, paragraph 134.3. You say that this is the report, this is the same report that was filed in the court proceedings as the provisional report.

Mr Samuel: That is correct.

Adv Bawa: What is the difference between this report and the report attached to Adv Cilliers email?

Mr Samuel: It was the same report as the 2014 draft, but the one that was used in the proceedings reflected Adv Madonsela at the end of the document.

Adv Bawa: Had there been changes made to this report since Adv Madonsela had left office?

Mr Samuel: No.

Adv Bawa: Had Adv Madonsela signed off on any provisional report?
 
Mr Samuel: No, she had not.

Adv Bawa: And did this draft address Adv Madonsela’s concerns?

Mr Samuel: No, it did not.

Adv Bawa: Why not?

Mr Samuel: There was a further investigation still underway, specifically to address Adv Madonsela’s concerns which as I've said were specifically to look at the role of the politicians in the whole Vrede Dairy matter.

Adv Bawa: Okay. You had the 2014 report in 2016 and then what did you do after that Mr Samuel?

Mr Samuel: The investigation are still ongoing. But what I then did was to inquire whether section 7(9) letters had been sent to Head Office Quality Assurance Unit. This was at the request of the Public Protector and that those section 7(9) letters be sent with a draft report. As Adv Matlawe was doing quality assurance of reports at the time indicated.

Adv Bawa: Adv Cilliers sent you the draft; if you look at p. 2218, this is the email requesting the draft. At the bottom of p. 2218, Adv Cilliers says that these were the ones sent after the TT (think tank) approved the report. What does that mean?

Mr Samuel: It suggests that the draft report that was discussed in the think tank was approved by the PP when in fact, that was not the case. It was just discussed there but not approved, and it was sent back.

Adv Bawa: You then sent the letters on to Adv Matlawe.

Mr Samuel: That is correct.

Adv Bawa: Those drafts were then forwarded, p. 2241 at the bottom it said that in February 2017, there is an email. Do you see it Mr Samuel?

Mr Samuel: Yes, I see it.

Adv Bawa: It says Dear PP, from Adv Matlawe to Adv Mkhwebane. The attached draft documents relates to the Vrede matter raised by Minister Zwane yesterday. Do you know what that reference "raised by Minister Zwane yesterday" is?

Mr Samuel: I was not part of any meeting with Minister Zwane. I took it that it was a meeting that was held at the PP Head Office with Minister Zwane.

Adv Bawa: ‘These documents have been going to and fro because your predecessor felt that Free State did not address the issues that were raised with her. It was a futile exercise to submit them to her because she was expecting Free State to make specific findings, which it seems was not captured in the section 7 notice and the draft provisional report. Further than that these documents were not drafted in accordance with the relevant formats approved. So we would still have to send them for non-compliance. I hope this clarifies the method; we can still discuss the documents, if you need further clarity.’ Does that accord with your understanding of the position at the time?

Mr Samuel: That is correct.

Adv Bawa: Then if we go to p. 2119, paragraph 139 of your affidavit. There is then a stakeholder consultative engagement which takes place and the PP comes to the Free State in March 2017. You recall that?

Mr Samuel: Yes, I do.

Adv Bawa: What was the purpose of this visit?

Mr Samuel: This was a process that had been initiated by Adv Madonsela during her time when she did would go around the country once a year to meet with stakeholders. The stakeholders that she wanted to meet and engage with were politicians on the one hand and members of the public on the other. The Public Protector Adv Mkhwebane continued with that practice. So this visit in March 2017, was one such visit to the Free State.

Adv Bawa: Was there any specific request made for any particular visit she was meant to have at that stage?

Mr Samuel: No. Well, there was a request made, conveyed to me, apparently made by the then Premier Ace Magashule. We were working with the officials from the Premier's Office during this roadshow. They conveyed a message to me that I should convey it to the advocate.

Adv Bawa: And did you do so?

Mr Samuel: Yes, I did. The message was that the Premier wanted to meet with Adv Mkhwebane before she went to the legislature the following day.

Adv Bawa: What was her response?

Mr Samuel: I remember we were in her hotel suite. I was there as the representative from the Free State Office who had to brief her on the process and the itinerary for the two days that she was there to visit. Other people that were present were the CEO at the time and people from Head Office. I recall that one of them was the spokesperson at the time. Her reaction was that she ‘did not take instructions from him.’ She doesn't know him. And she is not going to go and meet him. She also asked me whether I had met him. I said no. Since I transferred to the Free State, I had made attempts to meet with him, just introduce myself, as I had done in the Limpopo Province, as part of introducing myself to the leadership in the province and trying to seek cooperation with our investigations.

Adv Bawa: What then transpired Mr Samuel?

Mr Samuel: We went through the briefing and a few minutes later, she received the call. I don't know who had called her but she then walked to the one end of the room and took the call. On her return, she said she had changed their mind and said she would she go ahead and meet the Premier and that she would introduce me and the then CEO to the Premier. She then instructed that they should meet her the following day at seven in the morning or half past seven, I can't remember correctly, but to meet at the Premier's Office. We left it at that. We agreed. I then arranged with the then CEO to pick him up at his hotel, the following day, to go to the Premier's Office, as instructed. On our arrival the following day at the Premier's Office, Adv Mkhwebane, her security and driver were already there. We were then ushered in to go to the fourth floor, which is where the Premier's office was located. On our arrival on the first floor, the Premier’s PA was already waiting for us. She ushered Adv Mkhwebane to the Premier's office, and myself and the CEO, we were ushered to the waiting room.

Adv Bawa: Then what happened?

Mr Samuel: She had that meeting with the Premier. I think it must have lasted about 15 to 20 minutes. Then she came out and went…I think the Premier escorted her to the lift, and she left. Thereafter the Premier came to the waiting room and introduced himself to the CEO. Thereafter he just turned walked away. He didn't interact with me at all.

Adv Bawa: Did he acknowledge you at all?

Mr Samuel: Not at all.

Adv Bawa: You do not actually know what the conversation was between the Premier and the Public Protector?

Mr Samuel: No, I don't.

Adv Bawa: Did she tell you anything?

Mr Samuel: No, she did not.

Adv Bawa: You could only speculate as to what it's about. You have no personal knowledge as to that conversation.

Mr Samuel: I do not.

Adv Bawa: Did she relay any information to you after this meeting about the Vrede matter?

Mr Samuel: No, she did not. But sometime later, she indicated that she had made some undertakings to release that report and started following up on that.

Adv Bawa: What was the nature of those undertakings?

Mr Samuel: It was that she had made an undertaking to release the report and that it would be ready by the end of April. I then assumed that this undertaking must have been made or might have been made during her meeting with the Premier.

Adv Bawa: But she didn't say anything to you coming out of the meeting?

Mr Samuel: No she did not.

Adv Bawa: If you go to SS10, which is on p. 2223. There is an email dated 27 March 2017. Where the PP says I made a commitment that the following reports will be ready end of April by Free State, the Vrede Dairy report – she wanted to visit before the report was finalised. The Hlasela report, the taxi rank report and the website report.

Mr Samuel: That is correct. All the reports were being handled by the Free State except the website which was done at Head Office.

Adv Bawa: Okay, but it related to the Free State

Mr Samuel: That is correct.

Adv Bawa: If one looks further on that page, there is then an endeavour for her to get a date together to come and visit the Vrede Dairy Project. Correct?

Mr Samuel: That is correct.

Adv Bawa: If one looks at p. 2121 of your affidavit you say that Adv Matlawe then sent the draft from the Provincial Investigations Unit at Head Office together with section 7(9) correspondence to be reformatted. That is the same documentation that is annexure SS9. Correct?

Mr Samuel: That is correct.

Adv Bawa: Attached to Adv Matlawe's correspondence was another draft of the report. You refer to that at paragraph 141 of your affidavit. Did you get this draft?

Mr Samuel: Yes, I did.

Adv Bawa: What was the difference between this draft and the one Adv Cilliers circulated earlier?

Mr Samuel: It was the same with a few peculiar changes.

Adv Bawa: You deal with that in 141, and what were those changes that you're referring to?

Mr Samuel: The Public Protector was referred to as being T N Madonsela instead of Busisiwe Mkhwebane. And it also reflected that the Public Protector had been assisted by Erika Cilliers and Tshiamo Mocumi rather than the Free State Provincial Office.

Adv Bawa: Why do you describe that as being peculiar?

Mr Samuel: It was peculiar because the Public Protector at the time was now Adv Mkhwebane and the directive that she had given, subsequent to her appointment as Public Protector, was that reference should not be made to individual investigators that had assisted in the drafting of the report. It must instead reflect the originating office. It should have said Free State Provincial Office

Adv Bawa: Were the names reflected, which you see at 2241, were they investigators at the Free State Office?

Mr Samuel: That is correct. Erika Cilliers was a senior investigator and Tshiamo Mocumi was the investigator at the time.

Adv Bawa: When this document was sent on 27 March 2017 were they both still there?

Mr Samuel: No only Adv Cilliers was still there, Tshiamo Mocumi resigned in April 2015. A month after I transferred to the Free State.

Adv Bawa: Do you know how this change came about, putting the name back?

Mr Samuel: I don't know how the changes came about.

Adv Bawa: Did this draft reflect the changes that Adv Madonsela had wanted to implement?

Mr Samuel: No it did not.

Adv Bawa: In every other respect was this draft the same as the one Adv Cilliers had sent previously.

Mr Samuel: That is correct.

Adv Bawa: Go to SS12 at 2242. You then sent an email, what was attached to this email?

Mr Samuel: It was the section 7(9) letters in respect of the Vrede Dairy investigation.

Adv Bawa: You then say that there was a scheduled visit by the PP and team of the farm on 10 April 2017 and ‘I hope observations will not affect the report and letters as they stand.’ What did you mean by that?

Mr Samuel: I cannot quite recall what the issues were but because the investigation was still incomplete I might have been referring to issues that the Public Protector might want to be included or might not want to be included in the report. For us it was still a draft which had not incorporated the concerns of the previous Public Protector.

Adv Bawa: Okay. This draft report that you sent is attached to your affidavit marked SS13. It starts at p. 2243 of the affidavit.

Mr Samuel: Yes, that's correct.

Adv Bawa: It if one looks at this, there are comments on the right hand margin. Are those formatting changes?

Mr Samuel: That is correct.

Adv Bawa: If you look at the heading on the top of p. 2244. That date had now changed. It was no longer November 2014. Isn't that?

Mr Samuel: That is correct.

Adv Bawa: It now says March 2017.

Mr Samuel: That's correct.

Adv: Bawa: What were the changes effectively on this report that you can recall?

Mr Samuel: The changes related mainly to the structure and the format of the reports as required by Adv Mkhwebane. She required that report, or the draft, presumably in preparation for a visit to the Vrede Dairy Farm which was to take place in April.

Adv Bawa: Had the investigation at that stage being completed as yet?

Mr Samuel: No, it was not.

Adv Bawa: What still needed to go into the report?

Mr Samuel: The role of the politicians still needed to be considered. I had made attempts to engage with the Premier. The politicians that were relevant to the investigation were Premier Adv Ace Magashule and the MEC at the time. I had made attempts to interview them, and they had not cooperated. 

Adv Bawa: What else did you do? If you look at paragraph 145 of your affidavit. You describe certain steps that you had taken on p. 2123. Can you tell us what those steps were?

Mr Samuel: The steps I took were to consider the only relevant information available to us at the time, which was the information from the legislature's Hansard, some public speeches and speeches made in the legislature and in the public. There was also evidence that we had received from officials employed in the provincial Department of Agriculture, including head of department (HoD). The other officials were not willing to come forward. They feared reprisals. I also took into account the information or evidence that was collected by Adv Cilliers. At the time that we went for the inspection at Vrede, I requested permission from the Public Protector to issue a subpoena against the politicians because they were not cooperating with us.

Adv Bawa: In what way were they not cooperating?

Mr Samuel: They were not responding at all to our advances to meet or provide information regarding that.

Adv Bawa: As a provincial representative, could you issue the subpoena against politicians?

Mr Samuel: No, the directive was that any subpoena against politicians at whatever level would have to be issued by the Public Protector; but against officials including HoDs or Directors General, I could issue those subpoenas.

Adv Bawa: Right. So you say you then had a site inspection at the Vrede Dairy Farm.

Mr Samuel: That is correct.

Adv Bawa: When did you make this request to the Public Protector to issue the subpoenas?

Mr Samuel: It was on the day of the inspection as we were being taken around the dairy farm.

Adv Bawa: What was her response?

Mr Samuel: Her response was that she did not want any findings made against the politicians. She declined my request to prepare the subpoenas for signature.

Adv Bawa: What was your view on the matter?

Mr Samuel: I accepted her directive at the time and knew that I could not take the matter any further. I had to rely on what was available to me.

Adv Bawa: What did you then do? The PP on your evidence said that she did not want any findings against politicians.

Mr Samuel: I did not persist with my requests. I then prepared a draft and made adverse findings against both politicians to the fact that they owned up to this project and that it is impossible that the HoD could have been acting alone in whatever he had done without either direction or direct instructions from both politicians.

Adv Bawa: So if I take you to p. 2261, which is an email; tell us about this email.

Mr Samuel: This email was sent by Adv Cilliers to myself in which she says ‘Dear SHS,’ that was short for my full name. ‘We have finished the report and are starting section 7(9) letters, we are making findings of maladministration against the Premier and MEC. Therefore, three notices and one discretionary notice for the SIU. We took out remedial action for the Auditor General and Auditor General Free State was already busy with auditing the project. Sisa and I met him and his team on Friday. Thanks, Erika.’

Adv Bawa: If you turn the page there is a report attached. Was this the report you received from Adv Cilliers?

Mr Samuel: That is correct.

Adv Bawa: The report dated April 2017. If you go to your affidavit at paragraph 150, you summarise some of the findings in the report. Can you talk to that?

Mr Samuel: Yes, I noted that the evidence showed that the agreement was not concluded in accordance with the binding procurement framework, which constituted maladministration and contravention of Section 217 of the Constitution. That the applicable rules regarding public private partnerships were not followed. The price paid for the equipment, cows and infrastructure was considerably higher than the market value. We concluded that the accounting officer was guilty of trust irregularity, maladministration, abuse of power and improper conduct, as well as irregular expenditure. We found that, amongst other things, he should not have paid more than R143 million, which raised some concerns about the transaction. Furthermore, he had failed to put in place financial controls, and risk management measures in respect of the project. There were no invoices or receipts to substantiate the claims. Findings were also made against the Premier and MEC for their failure to institute disciplinary action against the senior officials responsible for the unlawful agreement in accordance with the Accountant General's recommendations. That this constituted maladministration on their part and the allegations that environmental legislation had been breached, were not substantiated.

Adv Bawa: If you go to p. 2327 on annexure SS15. You see the last sentence on paragraph 6.12. Is that the finding that the failure by the Premier and the MEC to institute disciplinary action amounted to maladministration?

Mr Samuel: Yes.

Adv Bawa: If you go back to your affidavit, paragraph 152. What happened with this report?

Mr Samuel: This report was circulated to both the Free State and Head Office. And in addition, draft correspondence was sent to Head Office together with the certificate of compliance, in respect of the investigation.

Adv Bawa: Explain to us what is that certificate of compliance?

Mr Samuel: The certificate of compliance was one of the requirements introduced by Adv Mkhwebane, that we had to complete from the investigator assigned to do an investigation, his or her line manager all the way up until the report gets to her for signature, to certify that we had observed all the requirements. We had stated all the facts in the law, and that our findings, aligned with what the complaint was and remedial actions, everything, including certifying that the structure is in accordance with the directives and so on.

Adv Bawa: If I take you to annexure SS16 on p. 2333. This is the email that contains the certificate of compliance. Then it refers to the section 7(9) letter, who gets the section 7(9) letter?

Mr Samuel: All implicated parties against whom adverse findings were found should be sent section 7(9) letters. In this case, it was Premier Adv Ace Magashule, the HOD of the Free State Department of Agriculture and the MEC of Agriculture at the time and any other parties that we deemed fit to receive the report who would have to consider the remedial action. In this case, it was the SIU.

Adv Bawa: And so that you call a discretionary letter?

Mr Samuel: Yes, that is a discretionary letter, as opposed to Section 7(9) notice because we're not making adverse findings against them.

Adv Bawa: Now, Mr Samuel, how did you get these emails?

Mr Samuel: The emails relating to?

Adv Bawa: The emails, which refer to all the documentation, because you say in your report that you can't locate a copy of the email to which the report was annexed. When you left the PP’s Office did you have all these emails?

Mr Samuel: No.

Adv Bawa: So how did you get these emails?

Mr Samuel: The emails were recovered by the evidence leaders and sent to me to have a look and see if I could assist this committee when looking at those emails in relation to what I had stated.

Adv Bawa: Did you get a copy of the email to which the report was attached?

Mr Samuel: No.

Adv Bawa: Were the emails provided to you all your emails?

Mr Samuel: No, when I was suspended, my laptop was taken; prior to that, I had been completely blocked from the ICT infrastructure. When my laptop was confiscated, that was the last time I had an opportunity to access my emails. Not all the emails were amongst those that were recovered by the evidence leaders. Some of the glaring examples was that between March during the Public Protector’s visit to the Free State during the roadshow, I was requested to go and manage and do an investigation in the Gauteng Provincial Office. None of those emails related to my work there, were amongst those. There were quite a number of others that I wanted that I had a recollection of that were not recovered.

Adv Bawa: If you turn to an annexure 2217, p. 2334. There was an email at the bottom from Adv Matlawe, where he says 'Dear PP, I have looked at attached letters, specifically the one addressed to the MEC and made appropriate comments. I'm not sure what all the letters are marked discretionary notices. In fact, the only discretion notice should be a letter addressed to the complainant, which to me seems from the way it was drafted. The letter to the SIU should rather be a cover letter to the section 7(9) notice addressed to the HOD, since the SIU is not implicated, it's technically incorrect to address a section 7(9) notice directly to it'. You're included in that email.

Mr Samuel: That is correct.

Adv Bawa: There is a further email sent which one sees if you go up the page on 22 May. Where he sees he has not in fact attached the section 7(9) notice addressed to the HOD. He then attaches the documentation which is new corrected draft MEC, new corrected draft SIU, new corrected draft Premier. The PP is included in both emails.

Mr Samuel: That is correct.

Adv Bawa: What follows in the annexure SS18 is a request from Adv Matlawe to the PP asking for her approval and signature of the section 7(9) notices.

Mr Samuel: Yes

Adv Bawa: If you turn to SS19, one sees the letter that is prepared for the Premier. Correct?

Mr Samuel: That is correct.

Adv Bawa: And if you turn to p. 2357, paragraph 10.1.3, can you read that?

Mr Samuel: The paragraph reads: 'The Accountant General's report recommended that the Premier and the then MEC institute disciplinary action against the HOD and the then Chief Financial Officer. The failure by the Premier and the then MEC to institute disciplinary action amounts to maladministration'.

Adv Bawa: So that last sentence, which you've noted, Mr Samuel. I referred you earlier to the paragraph in the April report, paragraph 6.1.2. at p. 2327. This was the section 7(9) included in the April 2017 findings in the report.

Mr Samuel: That is correct.

Adv Bawa: If you go to SS20, which is on p. 2363.

Mr Samuel: Yes.

Adv Bawa: That's the signed letter that goes off from the PP’s Office to the Premier, correct?

Mr Samuel: That is correct.

Adv Bawa: If you look at the page you see her signature on that on 7 June 2017.

Mr Samuel: That is correct.

Adv Bawa: If you go back to p. 2383 of the letter. You see the finding at the bottom of the failure by the Premier and MEC to institute disciplinary action that amounts to maladministration.

Mr Samuel: That is correct.

Adv Bawa: When the litigation ensued in respect of the Vrede report where was the record and the documentation of the Vrede report?

Mr Samuel: Our whole file was contained in the record at Head Office. It was sent to Head Office, by direction, I can't recall whether it was by the PP or the Unit that was to consider the whole report. The file was no longer with us in the Free State.

Adv Bawa: What was your involvement in the compilation of the Rule 53 record?

Mr Samuel: None whatsoever.

Adv Bawa: What was your involvement in the preparation of affidavits for purposes of opposing relief or putting an affidavit before court?

Mr Samuel: I did not make any contribution.

Adv Bawa: We provided you with a copy of the Rule 53 record index, correct?

Mr Samuel: That is correct.

Adv Bawa: That index is SS21 to your affidavit at 2389.

Mr Samuel: That is so.

Adv Bawa: Why did you say that Mr Samuel?

Mr Samuel: Because if relevant information was not attached to the findings to which the Premier was supposed to respond, or the proposed findings and remedial action.

Adv Bawa: If you go back to 2401, on the top Adv Cilliers then resends the letters she had sent.

Mr Samuel: Yes, that's correct.

Adv Bawa: You then say in paragraph 159 of your affidavit that as far as you were aware, the Premier was later provided with all the information he needed to submit a section 7(9) response.

Mr Samuel: That is correct.

Adv Bawa: Did you understand that the section 7(9) notice was sent to the Premier and the MEC for their information, as pointed out by the PP in her email or because there was findings against them?

Mr Samuel: Because there were findings against them.

Adv Bawa: And those are the findings that you referred to earlier on, which were set out in the April 2017 report.

Mr Samuel: That is correct.

Adv Bawa: You then say the Premier responded to the section 7(9) notice as did the MEC and the Accounting Officer at 161 of your report.

Mr Samuel: That is correct.

Adv Bawa: What happens when you get responses to section 7(9) notices, does your investigation stop or does it still continue?

Mr Samuel: No, the investigation continues. Responses to the section 7(9) would invariably shed light that needs to be taken into account in finalising the report, specifically around the findings and the information relied on and so on. The report cannot be finalised unless the responses to the section 7(9) had been taken into account.

Adv Bawa: I had asked you this question but I see I jumped the gun a bit. In paragraph 163 of your affidavit, you say the investigation in its entirety had been sent to Head Office sometime in 2017.

Mr Samuel: That's correct.

Adv Bawa: Can you recall precisely when in 2017?

Mr Samuel: No, I cannot.

Adv Bawa: You took some time off from work between July and September 2017.

Mr Samuel: Correct.

Adv Bawa: Although you got some of the emails you were not in the office, correct?

Mr Samuel: Yes.

Adv Bawa: It was Adv Cilliers who took the lead in providing Head Office with assistance?

Mr Samuel: Yes, in as far as the Vrede investigation was concerned.

Adv Bawa: What is subsequent in your affidavit is what you have been able to reconstruct from emails that had been made available to you for the most part,

Mr Samuel: Correct.

Adv Bawa: In paragraph 166, refer to a further report, that Adv Cilliers circulated on 8 August 2017.

Mr Samuel: That is correct.

Adv Bawa: This report, SS23, is then provided to Head Office or more specifically Mr Matlawe and others have been cc’d on it.

Mr Samuel: Yes, that is correct.

Adv Bawa: You did not assist in this report?

Mr Samuel: No, I did not. I was still on sick leave.

Adv Bawa: Right. What is attached to this email is the report which you see in SS24 on p. 243.

Mr Samuel: That is correct.

Adv Bawa: In this draft, there are no findings of maladministration or wrongdoing on the part of the Premier / the MEC, correct?

Mr Samuel: That is correct.

Adv Bawa: Do you know how it came about that these were omitted?

Mr Samuel: I do not know.

Adv Bawa: But then in paragraph 170.1 you point out that there are still several other findings that exist in this report, correct?

Mr Samuel: That is correct.

Adv Bawa: Those include?

Mr Samuel: Those include that the Accounting Officer is guilty of improper conduct, gross negligence, abuse of power, loss irregularity and maladministration and that the rules regarding public private partnerships which were applicable were not followed. The prices for the goods and services had been inflated. That the allegations regarding the environmental legislation where it was ‘breached,’ were not substantiated.

Adv Bawa: If you go to p. 2462 of the report, Mr Samuel. Pictures of the gates, which were alleged to have cost R2.6 million are still in the reports, correct?

Mr Samuel: That is correct.

Adv Bawa: The milking parlour that was alleged to cost R30 million is still referred to at 5.3.16 and if you turn the page you will see the pictures there.

Mr Samuel: That is correct.

Adv Bawa: If you then go to the next annexure SS25, you will see the email from Adv Cilliers dated 21 August 2017. She says corrections made per TT, what is your understanding of TT?

Mr Samuel: My understanding of TT was there was a stage when he used TT to refer to the ‘think tank’. But later on when a task team was formed at Head Office it was also referred to as TT.

Adv Bawa: There was then a further draft which is attached to this email.

Mr Samuel: That is correct.

Adv Bawa: You didn't have any involvement in this draft did you?

Mr Samuel: No, I did not.

Adv Bawa: You say that this draft, although it said September, it was circulated in August based on the email.

Mr Samuel: That's correct.

Adv Bawa: Did that draft have any findings against the Premier / the MEC?

Mr Samuel: No, it did not.

Adv Bawa: You then refer to what's called ‘dashboard minutes,’ located at SS27.

Mr Samuel: Yes, correct.

Adv Bawa: You refer specifically to p. 2500. Which says that the final report had been submitted await feedback from PII. You see that in the second column number one, second row? On p. 2500. At number one, it says EPC, which probably stands for Erika Cilliers Vrede Dairy project final report submitted, ‘await feedback from PII.’

Mr Samuel: Yes, I see that.

Adv Bawa: And what is PII?

Mr Samuel: PII stands for Provincial Investigations and Integration. It's the unit to which all provinces report at Head Office.

Adv Bawa: That would essentially be Adv Matlawe and a few other members who would be looking at the report, correct?

Mr Samuel: They were not attached to PII. PII was the unit that we reported to but Adv Matlawe would have been placed elsewhere either in the PP’s office or in another unit.

Adv Bawa: Who was in charge of PII at that stage?

Mr Samuel: The executive managers. There were two of them. One was responsible for inland provinces and the other one for coastal provinces. The one that we reported to was in charge of the inland provinces.

Adv Bawa: You then say that Mr Ndou then submitted the report to Mr Nemasisi. Who were they?

Mr Samuel: Mr Nemasisi was the senior manager for legal services at the time.

Adv Bawa: He then sent the report back to Mr Ndou with changes and comments.

Mr Samuel: That is correct.

Adv Bawa: You see that from SS28 on p. 2503.

Mr Samuel: That's correct.

Adv Bawa: If you look at p. 2512 specifically. You make reference to a comment that these are limited studies. The one I was referring to is the one in 174.1 of your affidavit where you say Mr Nemasisi’s comments note that: 'If Treasury issued a report on this with recommendations, maybe we can ensure enforcement of such recommendations in the form of remedial action'. You see that?

Mr Samuel: Yes, I see them.

Adv Bawa: You say in paragraph 174.3 Adv Cilliers’ response was that the remedial action requiring the Premier to ensure the implementation of the findings and recommendations by the Accountant General should be removed.

Mr Samuel: That's correct.

Adv Bawa: You then conclude having looked at this in 174.3, that otherwise the findings of the September report are largely the same as those in the July report.

Mr Samuel: That is correct.

Adv Bawa: You had no part to play in this report,

Mr Samuel: None.

Adv Bawa: Adv Ndou submitted this to the PP.

Mr Samuel: That's correct.

Adv Bawa: If you go to SS29 at p. 2525. The Public Protector sends it back to Adv Cilliers, Adv Ndou and Adv Nemasisi.

Mr Samuel: Correct.

Adv Bawa: There was a specific request if they can verify whether indeed this response captures the issues raised by the Premier.

Mr Samuel: That is correct.

Adv Bawa: You are then included in this chain because Mr Ndou seeks the section 7(9) notice that was sent to the Premier.

Mr Samuel: Correct.

Adv Bawa: In the next couple of paragraphs you refer us to a revised report. Tell us about that. At paragraph 177 of your affidavit on p. 2133.

Mr Samuel: That revised report had not been only limited to the politicians failing to take disciplinary action. In my mind, they were implicated in the transactions because they had taken ownership of the project in public. I was satisfied that there was no way that the Accounting Officer could not have been acting alone, instead he must have been acting under political direction from the Premier and MEC. I accordingly concluded that those political office bearers were culpable of maladministration, negligence and misconduct.

Adv Bawa: So what did you do?

Mr Samuel: I prepared a revised report reflecting my conclusions - that have just been presented - making findings against them, that they should be held liable. This was not only for failing to discipline the Accounting Officer, but because they had overall responsibility for the project, the manner in which it had been implemented and the extent to which it had failed the beneficiaries. I submitted that report to the Head [Office], as far as I can recall. In that report, I basically disobeyed the directive from the Public Protector, that we should not make findings against the politicians. I felt strongly that they were responsible for the project, and that findings have to be made against them. And I base those on the evidence that we had discovered from a number of sources. The unfortunate thing is that when my emails were recovered, we could not trace, could not find this email, under the cover of which I would have sent that report.

Adv Bawa: Who would you have provided that report to?

Mr Samuel: I would have sent the report to Mr Ndou, my line manager.

Adv Bawa: What do you think happened to that report?

Mr Samuel: I have no idea. Without the benefit of verifying from my emails, I can only speculate that it was excluded or those findings were removed from that report.

Adv Bawa: To who do you recall sending that report?

Mr Samuel: My recollection is that I sent it to Mr Ndou.

Adv Bawa: Can you recall more or less when you sent it?

Mr Samuel: No, I cannot recall.

Adv Bawa: When you returned to the office since September 2017, did you have any further involvement in the Vrede Dairy project?

Mr Samuel: No, I did not.

Adv Bawa: You were not involved in finalising the report in February 2018?

Mr Samuel: No, not at all.

Adv Bawa: The changes that were made to that report were not discussed with you in any way?

Mr Samuel: No.

Adv Bawa: You note in paragraph 183, the findings in the final report departed from the earlier conclusions that had been reached.

Mr Samuel: That is correct.

Adv Bawa: Can you detail that for the Committee?

Mr Samuel: Specifically, the complaint had alleged that the processing equipment, the cows, construction and administration services had been procured at inflated prices. The department that indicated that it had spent R2.6 on the security gate and the guardhouse and R30 million on the milking parlour. We had concluded that the prices of the milking equipment, the cows, the gate and guardhouse had been considerably higher than the prevailing market prices. These conclusions were based on the evidence we received from the independent sources involved in the industry. For instance, they indicated that only R3.3 million should have been spent on the cows and R7.2 million on the milking parlour. Our own inspection of the simple infrastructure comprising the security gate and the guard house revealed that the structure should not have cost more than R50 000 as opposed to the R2.6 million that was allegedly paid for that.

Adv Bawa: Those were the pictures you had included in the report that had been removed.

Mr Samuel: That is correct. We were satisfied that there was sufficient reliable evidence to make findings on the other items that were alleged by the complainant to have been overcharged. The PP concluded that finding could not be made due to the fact that there was no procurement process followed. And the Public Protector could not test the markets to determine the market value of goods and services procured without the necessary documents, which prove the actual price for the goods and services procured. This was in complete ignorance of the independent information acquired from the Breeders Association which rendered it unnecessary for the Office to take further steps to test the market. I have no idea why this information was not. Determining the value of the security gate and the gatehouse did not require specialist input. It was basic construction of a rudimentary structure. The April 2017 report included the pictures that we had attached to the report which are reflected on p. 2137 of my affidavit.

Adv Bawa: That's the structure that they attributed the cost of R2.6 million to?

Mr Samuel: That is correct.

Adv Bawa: So these are the photographs, or some of the photographs, that you say were included in earlier reports that was removed from the final version?

Mr Samuel: That is correct.

Adv Bawa: Then at paragraph 184 of your affidavit. You refer to the final report stating that there was an inability to investigate certain issues due to capacity and financial constraints. What do you know about that?

Mr Samuel: I do not agree. I did not agree then and I do not agree now. I was of the view that the investigation was not hampered by any capacity or financial constraints. We were perfectly capable of determining some of those issues. As I said, we consulted some experts, which was done for free, so there was no need or issue about finances to be dispensed in obtaining that information. That information was included in the April 2017 reports, and a number of other versions of the report. I concluded that the external forensic investigator was not required, because we could scrutinise the financial records sufficiently. Prior to this, I had not been told…I was never informed that the Public Protector required additional external forensic expertise.

Adv Bawa: Now, let's deal with the issue of beneficiaries because the final report records that the beneficiaries intended to benefit from the project could not be investigated due to a lack of information.

Mr Samuel: Yes.

Adv Bawa: Were you able to track down the beneficiaries?

Mr Samuel: Yes, we were.

Adv Bawa: Would it have been a tremendous exercise to do that?

Mr Samuel: No, not at all. We were in contact with the beneficiaries through their leader, who subsequently died, he was killed. And we had the list of the beneficiaries. Even when we went for the inspection, we inquired from the Public Protector through her PA or secretary, whether the PP would require the presence of the beneficiaries during the inspection. Her response was that they were not required.

Adv Bawa: That response could be seen at p. 2529, it was indicated that there was no need to invite the complainant and delegation of beneficiaries to the inspection, correct?

Mr Samuel: That is correct.

Adv Bawa: Now, do you think the input of the beneficiaries would have added anything additional to the report? You deal with that 187.4.

Mr Samuel: No, I do not think they would have added any value.

Adv Bawa: Why do you say that?

Mr Samuel: They would not have shed light on the nature of the complaint itself. They were just the beneficiaries. To that extent, we agreed, perhaps for different reasons, with the Public Protector that there was no need for the beneficiaries to be present at the inspection. They were at the tail end of the project.

Adv Bawa: Effectively they had not gotten any benefits.

Mr Samuel: Yes.

Adv Bawa: You agreed essentially with the Public Protector report, that it wouldn't have added anything to the report. When the report was set aside, and the matter was going to be reinvestigated, who conducted that investigation?

Mr Samuel: That was done at Head Office. My information is that it was done by one of the chief investigators.

Adv Bawa: Were you not involved in that investigation at all?

Mr Samuel: No, I was not. We were not involved at all as the Free State Office.

Adv Bawa: Is there anything else in respect of the Vrede investigation that you wish to add?

Mr Samuel: No, I cannot think of anything.

Adv Bawa: We started in the middle of your affidavit. You describe your personal circumstances since submitting the initial affidavit.

Mr Samuel: Yes, that is correct.

Adv Bawa: Essentially, you had submitted an affidavit previously to the Speaker of the National Assembly; the affidavit was deposed on 11 February 2020.

Mr Samuel: That is correct.

Adv Bawa: What informed the submission of that affidavit to the Speaker of the National Assembly?

Mr Samuel: Prior to submitting that report, I had made inquiries about escalating the fact that our Office was getting involved more and more in litigation. And that there were other problems which were suffering as a result. I had made inquiries regarding the legal fees or the litigation that we were involved in and requested information on why we were involved in that and how much money was being spent. Looking at the reports that were submitted to the Management Committee to which I sat in. There was a standing report on finances, which at the time indicated that we had budgeted R10 million for legal fees or litigation. By that time, we had almost doubled it. It was somewhere during the middle of the financial year, we had almost doubled the expenditure relating to that. And another amount I think I recall of about R6 million had been set aside or ring-fenced to be paid within that financial year. So those were the issues, amongst others, that worried me, that necessitated that I ended up approaching the Speaker with a request to do an investigation into the Office of the Public Protector and the conduct of the Public Protector.

Adv Bawa: If we go to the bottom of 189 on p. 2140 you then say there was severe professional consequences for you.

Mr Samuel: That is correct.

Adv Bawa: So let's take it from the top, you write this letter and affidavit in February 2020. You say in the next paragraph that you write to the Acting CEO in March 2020.

Mr Samuel: That is correct.

Adv Bawa: Once again raise the issue of the expenditure on legal fees and request documentation.

Mr Samuel: That is correct.

Adv Bawa: The annexure you refer to is at p. 2198. The acting CEO at that time is a Ms Lusibane. Right?

Mr Samuel: That is correct. Ms Lusibane was in fact the Chief Financial Officer, but at the time she was the acting CEO when I wrote the letter.

Adv Bawa: You refer to an interview that the Public Protector had given, tell us about that.

Mr Samuel: As I recall, it was the day before I sent this letter, but I'm subject to correction. The Public Protector was interviewed by Mr Thabo Mdluli of Newsroom Africa. The question that worried me that he had posed to the Public Protector, regarding the expenditure on legal fees, he asked who was responsible for the decisions regarding that expenditure. Her response was that she was not involved in that decision, that It was actually the Accounting Officer. That was why I then decided to direct this letter the very following day to the Acting CEO in the accounting office.

Adv Bawa: What information did you seek?

Mr Samuel: I wanted a detailed and complete list of all matters that the Public Protector South Africa, as an institution, had been involved in since October 2016. Details of how much money has been spent on each of these cases, in respect of legal fees up to that date, where these legal fees paid to, and what they were for. What policy had been used to determine which case to litigate on and what informed the decision to litigate in each case. I also acquired what was what the current status of each of those cases was to date and who had been selected that such litigation we entered into and what the budgets were for legal services and litigation since October 2016. I received an acknowledgement of this letter from the Acting CEO.

Adv Bawa: If you go back to 2141. You address the letter to the Public Protector.

Mr Samuel: Yes, that is correct.

Adv Bawa: What was the reason for that letter?

Mr Samuel: I basically asked the Public Protector to resign. It was at the back of the recent judgments in which the presiding officer had been scathing about her conduct

Adv Bawa: Did you get a response to the letter?

Mr Samuel: No, I did not.

Adv Bawa: A copy of that letter can be seen on p. 2356. It's in this letter that you appeal to her to resign.

Mr Samuel: That is correct.

Adv Bawa: The following day there were various disciplinary charges brought against you.

Mr Samuel: I think it might have been error in stating it like that. The charges came at a later stage. What happened the following day, was that when I went to the office and I tried to log in to the server to get my emails and so on, I had been blocked. So I made inquiries to the CEO. That is not reflected here in these paragraphs, but you know as to why I had been locked out, and that I considered that to be constructive dismissal. Instead, I was then served with the Notice of Suspension on the same day. And my laptop was taken away from me. The charges came a few days thereafter.

Adv Bawa: What is omitted from paragraph 192 on 11 March 2020 was that you were suspended. One of the charges dealt with the Limpopo assault that was described in the initial affidavit. What is the date of that assault that occurred? Do you recall?

Mr Samuel: Yes, I do, it was 14 December 2011.

Adv Bawa: You are now being charged in 2020 for an assault that was alleged to have occurred nine years prior.

Mr Samuel: That is correct.

Adv Bawa: Without belabouring it, tell the Committee briefly the circumstances of what had occurred in 2011.

Mr Samuel: On the day in question, it was early in the morning, just after eight, I was sitting in my office, on the first floor of the building we were at the time in Polokwane, where I was the provincial representative. I got a call from our receptionist to advise me that the complainant was at the reception and he demanded to see me. I was busy with the Head Office, I was on the line talking to one of the officials in the HR explaining the reports that I had submitted. The next thing the complainant barged into my office. He initially sat opposite myself but I could see he was agitated and angry. When I finished my call, I told him that I cannot see him on the day because I'm busy with reports. I suggested to him that I could see him later in the afternoon at 2pm or the following day. Instead, he just stood up accusing me. He came for me and grabbed me by my clothes by the collar. I tried to push him away, to let go of me and that is when the struggle ensued. I actually managed to push him to just outside the door and there was another door with a sliding door, a glass door. He tripped on that and we both fell, as he was still holding on to me. Because of the commotion, the other officials within the office came out to investigate. They separated us and took him downstairs. I then reported the matter to the CEO.

Adv Bawa: Who was the CEO at the time?

Mr Samuel: The CEO was Mr Themba Dlamini.

Adv Bawa: What did he then do?

Mr Samuel: He instructed me to go to the police station and lay a charge and to prepare a written report of the incident. On the same day before even my report could reach him, he had dispatched the private security firm, a male and female officer to come and guard us in the building at the time. That continued for some years. I’m told now that they are no longer there. At the time they were there to protect us and ensure our safety.

Adv Bawa: You went to the police station to lay your charge?

Mr Samuel: That is correct. I went to the police station. On my arrival there, I found the complainant also laying a charge against me. The officer in charge of the charge office at the time on noticing that we were there for the same case emanating from the same incident, called us into his office and tried to broker some kind of an agreement that we should drop those charges against each other. The complainant refused; I was amenable to that because I was not particularly interested in laying a charge against an elderly person which would take up most of my time going to and from court. But he refused. Both cases were then opened and sent to a senior public prosecutor for a decision. I think a day or two afterwards, we appeared in court. The Senior Public Prosecutor withdrew both charges against us. He declined to prosecute basically on both cases. That was at the time the end of the matter until later.

In between nothing happened until 2017. When I had already moved to the Free State provincial office. I got a call from one of the investigating officers plus two ladies came and serve me, the police officers to come and serve me with a summons to appear in court. The case had been revived against me, after the person complained to the NDPP that the prosecutor was unwilling to see his case to finality. That's how it got to be reinstated. It was finalised in the same year 2017, where I was found guilty of common assault sentenced to a month imprisonment or R1000 which was wholly suspended for five years. I opted to pay to secure my release. Within 14 days thereafter, I applied for leave to appeal, which is still pending in the High Court in Polokwane. As the trial record was incomplete; it was moved from the roll. I've been informed by my attorney that the record had been completed and that the matter is proceeding. I'm waiting for a date.

Adv Bawa: That was one of the charges you had.

Mr Samuel: That is correct. That was one of the charges that was brought against me in 2020.

Adv Bawa: There were also other charges.

Mr Samuel: Yes.

Adv Bawa: What did that relate to?

Mr Samuel: It related firstly to the February 2020 affidavit and request made to the Speaker to launch an investigation into the Public Protector and her conduct in running the Office. Flowing from that affidavit, I was contacted by various media houses to confirm effectively whether I'm the author of that affidavit and the letter to the Speaker and on the contents thereof. I was then involved in those interviews together with the spokesperson for the Public Protector in the Office. I was then charged with conducting those interviews. Secondly, leaking or allegedly leaking my affidavits to the media and making disparaging remarks against the Public Protector. In total nine charges, including insulting the Public Protector, breaching the Public Protector Act and the policies of the Public Protector, mainly the grievance policy procedure in that I had taken my complaint to the Speaker and not to the Public Protector. The other related I think to the breach of the confidentiality clause that I had signed. At the end of it all, I was subjected to a disciplinary hearing. In my absence, I was found guilty on five of those charges.

Adv Bawa: You didn't attend the disciplinary proceedings?

Mr Samuel: Yes, I did, on the first day, which was in October 2020. The charges had been served on me earlier in March, but because of the hard lockdown, we could not sit. Then on the first day of the sitting of the hearing, I was there with my union rep. The lead evidence was from one witness, my line manager. We could not finish, so it was then postponed to late November spilling over to early December 2020. About three days before we were to go back to those hearings, I advised all the parties, employer, the chairperson, and my rep everyone that I had been in contact with a relative who had tested positive for COVID-19. In terms of the protocols, I had to isolate. I requested a postponement for 10 to 14 days. The chairperson wanted proof of that. I said I would bring the proof on the date the matter would be postponed to 10 to 14 days later, because I was already in isolation at home and could not go out. He refused to grant the postponement, so the hearing continued in my absence.

Adv Bawa: You were found guilty on the charges and subsequently dismissed.

Mr Samuel: That is correct.

Adv Bawa: You then took them to the CCMA.

Mr Samuel: Correct.

Adv Bawa: You recently got an arbitration award from the CCMA.

Mr Samuel: That is correct.

Adv Bawa: That came down on the 4 July 2022.

Mr Samuel: It came down a few days before but it said I must report for duty on the 4 July, which I have done up until now.

Adv Bawa: It effectively set aside the disciplinary hearing.

Mr Samuel: That is correct, yes.

Adv Bawa: Now, when the assault occurred in 2011 were there any steps taken internally by the Office; did you provide a report or anything?

Mr Samuel: I provided the report as instructed by the then CEO. He later came back to say the executive committee (exco) had discussed the matter and found that based on my report, there was no wrongdoing on my part, and so no steps would be taken. That was the decision taken at the time.

Adv Bawa: Let's go back to the start of your affidavit. You explain the fact that you hadn't received all your emails and you set the background to the evidence you have presented in the first few paragraphs of the affidavit. We have also dealt with your background as a provincial representative. And in paragraph 15 we essentially set out what the tasks are of that office and I do not believe that to be of any contention. You then say that in your capacity as provincial representative, if I can take you to paragraph 15.7, you talk about attending quarterly management meetings, on p. 2074. You refer to three kinds of meetings that took place, can you just briefly describe that?

Mr Samuel: Yes. One was the think tank meeting which should be chaired by the Public Protector where all the senior managers and sometimes the relevant investigators and senior investigators would sit at this committee and discuss reports that were ready to be issued or that we're ready to be finalised. This think tank essentially did quality assurance of those reports. Then there were management meetings, chaired by the chief executive officer, which included submission of reports from each of our offices, or units. These included scrutinising financial reports, management reports, and reporting by the management team on the state of affairs in their respective provinces. Then there was a separate forum, which was the provincial forum, where only the provincial managers, the nine provincial managers would sit and engage with executive managers, to whom they report about issues peculiar to their respective offices. So those are the three main meetings or the three forums that I would attend.

Adv Bawa: You would be part of the management meetings, where budgets would be discussed and allocated, correct?

Mr Samuel: That is correct.

Adv Bawa: How would you get a provincial budget?

Mr Samuel: When we have a ascertained as an office what our budget for a particular financial year was, the CEO would then instruct that all the provincial and investigation unit managers, including HR and so on, prepare their own budgets for their own units, and would submit those for approval. It is on the basis of those reports that funds will be allocated to us.

Adv Bawa: When you need funding, you have to request that from Head Office. Correct?

Mr Samuel: That is correct. The budgets were managed and expended from the central unit at Head Office.

Adv Bawa: Does the PP have any involvement in this?

Mr Samuel: No.

Adv Bawa: Did the PP have any involvement in supply chain management, which affects you?

Mr Samuel: No.

Adv Bawa: So she doesn't get involved in the financial to-ing and fro-ing between you and Head Office?

Mr Samuel: No, she doesn't.

Adv Bawa: Now, the think tank was at some point abolished? Correct?

Mr Samuel: That is correct.

Adv Bawa: Do you more or less have an idea as to when that was?

Mr Samuel: I don't quite remember. But from the records of the image that I could trace, it would appear that the last think tank was around November 2018 or thereabouts.

Adv Bawa: In paragraph 18 of your affidavit, five or six lines from the bottom. I'm not going to read or take you through every aspect of your affidavits, but just pick on stuff that I think the Committee would require some clarification on. You refer to the Vrede investigation as being politically sensitive. What do you mean by that?

Mr Samuel: Prior to the arrival of the current Public Protector, we had a system under Adv Madonsela of classifying investigations and complaints in terms of the nature and relief sought. Politically sensitive investigations would be investigations that were either launched by a political committee or implicated a political figure. Generally, complex investigations were around tender irregularities and so on, which implicated politicians.

Adv Bawa: If you go to paragraph 90, you set out your investigation processes. Does the PP sign off on all investigations?

Mr Samuel: No, only on the formal reports on all investigations where a formal report had to be issued, that were delegated to us to sign off.

Adv Bawa: So the run-of-the-mill complaints, and I don't mean to denigrate the complaints in anyway, but there were a number of complaints that you would deal with that would never come to Head Office

Mr Samuel: Correct.

Adv Bawa: In paragraph 20, you said that the overwhelming majority of cases get finalised without formal investigative reports.

Mr Samuel: That's correct.

Adv Bawa: What's the difference between a closing report and a formal report?

Mr Samuel: Formal reports is one where we would have investigated complex issues and issue a formal report to be signed by the PP. A closing report would be on ordinary investigations, or even if the complaint emanated from a politician or involved tender irregularities but we found that they were unfounded, we could not even commence the investigation. We would then do a closing report on those. Those were generally delegated to unit heads and the provincial offices to sign off.

Adv Bawa: Right. Now, in paragraph 22 onwards, you talk about the circumstances that you submitted the initial affidavit. Essentially in that affidavit on p. 2756 you sought the intervention of Parliament in taking any action necessary to safeguard the existence of the institution and investigate the operations of the Office and the conduct of Adv Mkhwebane.

Mr Samuel: Yes, that's correct.

Adv Bawa: You then say, "I'm speaking with confidence when I say that the majority of staff that I interact with, especially in management have lost faith and trust in Adv Mkhwebane". How did you obtain such knowledge?

Mr Samuel: I interact generally with staff from different offices, especially in management and also below management. These views were heard in my interaction with staff members that were afraid to speak but would constantly discuss with me over the years.

Adv Bawa: In paragraph 22 of your affidavit you say you're concerned about the decline within the Office and unhealthy working conditions that were filtering down to the provincial office. How did you see this filtering down to the provincial offices?

Mr Samuel: To be specific to my office, I would have staff that were reporting to me questioning how we would have come to some decisions as management. They would not be satisfied with, for instance, if I told them that this is not a decision that was taken in management but was being filtered down to us as a decision taken by Exco. As a result, we could not question some of these decisions. But there was generally, you know, some fear and apprehension from a lot of staff members and others outside of the office about the working conditions that were prevailing.

Adv Bawa: Mr Samuel, you then talk about reckless litigation. Can you tell us, maybe in brief, what do you mean by that?

Mr Samuel: What I mean by that is litigation that is not informed, that is basically ill-informed, that only takes place because we have the money as an institution to engage in that litigation. It did not bring any value to the institution. The decisions taken to engage in that litigation, were really unnecessary. That is what I generally mean.

Adv Bawa: In paragraph 26 onwards, you give some examples and refer to the litigation. In paragraph 26.2, you refer to the litigation in respect of the Vrede Dairy matter.

Mr Samuel: Correct. That is correct.

Adv Bawa: All right. Mr Samuel, you refer to the litigation in the Vrede Dairy project, that's the matter we discussed earlier on. You say in paragraph 26.2 that whilst the PP initially elected to abide by the matter, they then opposed it in full and that counsel was briefed to represent the Office in one application and in the other, which you regarded as inexplicable, given the limited resources of the Office, correct?

Mr Samuel: That is correct.

Adv Bawa: You then say the High Court declared the report invalid and set it aside and then issued a declaration that the PP had failed to discharge her duties under Section 192?

Mr Samuel: That's correct.

Adv Bawa: You make reference to paragraph 43 of the judgment where the Court said, "Seen within the context of the factual background, the scope of the investigation, as identified by the PP, seems to be too narrow and seems to ignore the issues raised in the report from Treasury, the media reports as well as the complaints lodged. There does not seem any logical and legitimate explanation for the narrowing of the scope of the investigation." Is that what you're referring to?

Mr Samuel: That is correct.

Adv Bawa: Then if we go to paragraphs 47 to 49. The court says "[47] Her decision to limit the scope of her investigation so dramatically was irrational as it side stepped all the crucial aspects regarding the complaints and led to a failure on her part to execute her constitutional duty. [48] In her report, the PP indicated that on assuming office during October 2016, she took the following steps regarding the investigation into the Project: a. she sourced four additional documents - namely, a list of employees at the Project; the milking records for the Vrede Dairy Farm from ·1 April 2016 to 31 March 2017; the financial statements for the Vrede Dairy Farm from September 2014 to March 2017; and a company report from CIPC on Vargafield (Pty) Ltd" Those were obtained in the Free State, correct?

Mr Samuel: That's correct.

Adv Bawa: "a. she sourced four additional documents - namely, a list of employees at the Project; the milking records for the Vrede Dairy Farm from ·1 April 2016 to 31 March 2017; the financial statements for the Vrede Dairy Farm from September 2014 to March 2017; and a company report from CIPC on Vargafield (Pty) Ltd, b. she held three interviews, namely with the Free State Department of Agriculture, the Manager of Studbook, SA Holstein Breeders Association and with the CFO of the Free State Development Corporation," That is Breeders Association from whom you obtained the pricing for the cows, correct?

Mr Samuel: That is correct.

Adv Bawa: "c. she conducted one inspection in loco at the Vrede Dairy Farm. d. she consulted one website, the CIPC website (to confirm the details of the Mohoma Mobung company)." That would also have been done right?

Mr Samuel: That's correct.

Adv Bawa: In paragraph 67 of the judgment, or let me go to 60 first, the court concluded: "Significantly, whereas the provisional report had sought to give effect to Treasury's investigations and recommendations, the PP did not accept these findings. She instead found, that compliance with the requirements for concluding a PPP was not required for the Estina agreement. On what basis she could justifiably come to such a conclusion is unclear. It points either to ineptitude or gross negligence in the execution of her duties".

Then paragraph 75 "The PP also determined whether the prices for goods and services procured were inflated. On this issue, the provisional report stated that independent evidence indicated that, prices of processing equipment and the cows purchased were considerably higher than. market value, which confirmed that proper procurement processes were not followed. It indicated that lack of proper monitoring and control measures were the reasons for discrepancies noted in the financial statements, which in turn pointed to gross negligence and maladministration which led to fruitless expenditure." These were one of the findings excluded from the final report. Correct?

Mr Samuel: That is correct.

Adv Bawa: I'm not going to take you through all of it but you refer to various paragraphs in the judgment in which conclusions are reached, correct?

Mr Samuel: That's correct.

Adv Bawa: If you go to the end, there was then a second judgment handed down where the court concluded that the Public Protector should be personally liable for 7.5% of the applicants' costs on a punitive scale. See that at 26.3 of your affidavit?

Mr Samuel: That is correct.

Adv Bawa: This judgment, as you point out in paragraph 26.4, was appealed from the High Court, then to the Supreme Court, and then to the Constitutional Court, and in each case, the application was dismissed.

Mr Samuel: Correct.

Adv Bawa: In paragraph 26.5, you deal with the litigation on the Financial Sector Conduct Authority report, correct?

Mr Samuel: That's correct.

Adv Bawa: In paragraph 26.7, you deal with litigation of Report No 37 of 2019/20, and the findings made by the court in that case.

Mr Samuel: Correct.

Adv Bawa: In paragraph 26.8, you pointed out that again that was taken on appeal and was dismissed by the Constitutional Court.

Mr Samuel: That is correct.

Adv Bawa: This was a sample of cases which concerned you at the time
.
Mr Samuel: That is correct.

Adv Bawa: Did this give rise to adverse media coverage?

Mr Samuel: It did.

Adv Bawa: Did it reflect poorly on the reputation of the OPP?

Mr Samuel: Yes, it did.

Adv Bawa: Did it give rise to criticism against the Public Protector and the OPP?

Mr Samuel: Yes.

Adv Bawa: Why do you think that occurred?

Mr Samuel: It was because the continued loss or pursuit of this line of litigation and with the resultant losses to the Office, put the Office in a bad light. It reflected generally that we did not know what we're doing as the Office. There was a marked decline in the confidence of the Office from the time Adv Mkhwebane came in and during her term when this litigation was taking place.

Adv Bawa: If you go to the next section, which deals with soaring legal costs in your affidavit, you mentioned earlier that you obtained this, you became aware of these legal costs because of quarterly management meetings, correct?

Mr Samuel: That is correct.

Adv Bawa: You make reference to the annual financial statement in these subparagraphs.

Mr Samuel: Correct.

Adv Bawa: Let me take you quickly to annexure SS1 under the heading of Administrative Expenses. The Legal Fees in the 2015/16 year is in the amount of R5 626 607. Do you see that?

Mr Samuel: Yes I do.

Adv Bawa: If you go up further on the schedule, you will see a heading that says Consulting and Professional Fees. It's the line item six on the same page.

Mr Samuel: Yes.

Adv Bawa: You will see an increase from approx. R1.5 million in 2016 to over R5.2 million in 2017.

Mr Samuel: Yes.

Adv Bawa: If you go to the following financial year, at p. 2159, you no longer see Legal Fees, but under the Consulting and Professional Fees, they had now joined Legal Fees with Consulting and Professional Fees. We know that because there is a footnote in the annual financial statements that tell us that, correct?

Mr Samuel: That is correct.

Adv Bawa: So the R13 million of 2017 would be the two totals and that's increased to R24 million.

Mr Samuel: That's correct.

Adv Bawa: If you look at p. 2167 of the financials in the first paragraph in the second column. It says, as one of its legal strategies, the PPSA has not been defending all matters taken on review. To reduce costs, expenditure on legal fees is reduced by R6 million from R20 million in 2017/18 to R14 million in 2018/19.

Mr Samuel: Yes.

Adv Bawa: If we look at the financials at p. 2171. R24 million on the fourth column becomes approximately R18 million. If I take you to p. 2187, fourth item under number 20 the R17 million became R47,000,200 at the end of the 2019/20 financial year.

Mr Samuel: That is correct.

Adv Bawa: If I go back to your affidavit. In paragraph 35, your complaint was actually based on R10 million being budgeted for legal fees in 2019/20. And you thought that was really high amount.

Mr Samuel: That is true.

Adv Bawa: You actually underestimated the amount that was spent?

Mr Samuel: Yes. This was based on the documents we were receiving in the management meeting at the time.

Adv Bawa: Those would be quarterly documents, so they wouldn't always be entirely accurate. You would agree with that.

Mr Samuel: Yes, I agree.

Adv Bawa: Why did this concern you from your office as a provincial representative? How did it affect you and your office?

Mr Samuel: It meant that other programmes in the PP Office would suffer because money budgeted for other programmes was now diverted to legal fees. The principle up until then was that we are not an institution involved in litigation as our primary function. But this trend showed that we were slowly getting more litigious to the detriment of other programmes, and this affected the province that I was responsible for.

Adv Bawa: Okay, so let me take you to paragraph 48 of your affidavit where you talk about some of these programmes. You refer to the holding of outreach clinics, offer us a bit more about that, Mr Samuel, what does that entail?

Mr Samuel: These clinics were a means for us as an office in meeting the constitutional mandate of being accessible to all communities. It meant that we would have to go to the communities, especially those that were far flung from the Office, or the provincial offices where they could just walk in and lodge complaints or get information about the services of the Public Protector. It allowed for our outreach officers, sometimes accompanied by investigators, to have a direct interface with members of the public. In that process, they would explain what our Office was about, assist complainants to complete the forms where they wanted to lodge complaints, and then come back to the office with those complaints.

Adv Bawa: Most of the PP offices are established in the big cities, correct?

Mr Samuel: That is correct, with a few regional offices or constituency offices in places other than the city.

Adv Bawa: In the Free State there was one regional office under your control, correct?

Mr Samuel: Correct.

Adv Bawa: You then quote what the objectives of the organisation were in 2016/17. Can you read that to the Committee as detailed in the Annual Report?

Mr Samuel: When the Public Protector first started in the OPP, during the 2016/17 financial year, she had a vision, Vision 2023. In that vision, she had as a matter of emphasis to make the Office more accessible. To achieve that, a few mechanisms were suggested to reach that. In the Annual Report, she recorded that in the early stages of the launch of the blueprint document, Vision 2023, she envisaged taking the services of the Public Protector to the grassroots. That Vision 2023 seeks to ensure that we dedicate more of our time and resources to services being filtered to communities living on the margins of society. She states that they too deserve a taste of the fruits of freedom and democracy and that we intend to achieve this by broadening access to our services, especially to rural and impoverished communities.

Adv Bawa: Did you agree with that approach?

Mr Samuel: Yes.

Adv Bawa: In your next paragraph you noted in the same 2016/17 Annual Report that as many as 803 community outreach clinics were held countrywide resulting in 9563 complaints received during that period, correct?

Mr Samuel: That is correct.

Adv Bawa: You detail further aspects of the report. If you can just take us through that?

Mr Samuel: She stated that the institution's goal was to reach as many people as possible through its outreach activities, it reached many communities through our 800 clinics that were conducted during the period under review. Furthermore, the impact of the outreach activities such as media house visits, numerous newspaper articles about the Office and interviews resulted in South Africans being made aware of the existence of the Office, the work it does and the type of assistance it can obtain. While millions of people were reached through outreach activities, the objective going forward is to focus more on bringing these services to people living in villages and townships.

Adv Bawa: And so what is the next 2017/18 Annual Report record?

Mr Samuel: It states that "For my Office to make a meaningful contribution towards its shared responsibility of strengthening constitutional democracy, our services must be accessible to all. The success I refer to above would therefore not have been possible without our efforts to enhance access to our services. In the intervening period, 815 outreach clinics were held to take our services to far flung communities with only 19 offices countrywide, these clinics make up for our limitations where our footprint is concerned".

Adv Bawa: In paragraph 54, you talk about the 2018/19 Annual Report. What does it say?

Mr Samuel: Making the Office of the Public Protector accessible really changed significantly. And for the worse. In 2018/19 she stated that: "Other targets included conducting 208 community outreach clinics and 36 radio slots also by financial year end. Clinics are mass meetings were presentations on the Public Protector’s mandate are made in vernacular to remote communities. Complaints are also lodged during such outings. Slots, on the other hand, involve call-in programmes on SABC and community radio, where the message about this institution is spread. These two targets relate to the enhancements of public access to the services of this office."

Adv Bawa: So what happened?

Mr Samuel: It got reduced from the figures that I mentioned earlier. They went down to 208 for 2018/19. This was despite acknowledging the usefulness of those clinics.

Adv Bawa: How did this affect the province where you were operating?

Mr Samuel: It meant that it affected firstly, our targets, which generally would have been better in order to meet those lower targets. It meant that we could not reach the communities that needed our services.

Adv Bawa: In paragraph 47, it did exceed the target that was set by 69. There were 277 community outreach clinics when the plan was only 208.

Mr Samuel: It was easy to exceed your targets if you reduce them. The general practice has always been that we increase them each year and not decrease them – with the rider that we would have to go to other areas we had not concentrated on in the previous year. Reducing them made it easy to effectively manage meeting our targets, when in fact these targets were reduced.

Adv Bawa: In paragraph 59, you say that there was a preference for radio engagement. Don’t you reach more people with radio?

Mr Samuel: Yes, especially those that are in rural areas, they listen to the radio, but it is one sided. We can only tell our audience what the Office does. But they cannot contact us to lodge complaints because it's over the radio. Invariably, these radio slots would not be call-in programmes.

Adv Bawa: When you go out on these outreach clinics, are you expected to assist complainants in filing complaints?

Mr Samuel: Yes, that's why in most cases, we send at least one investigator, we can also give advice on the spot on alternative avenues through which complainants can resolve complaints, where perhaps we don't have jurisdiction and so on. But largely in order to receive complaints, we would have to assist them by completing the forms.

Adv Bawa: Did the PP Office have a toll free number.

Mr Samuel: Yes. I'm not sure it's still there. But it is based at Head Office. If you call from anywhere in South Africa, it gets answered at Head Office. The practice in the past was that where a complaint was taken over the phone through that channel, it would have to be sent to the nearest office where the complaint was placed, so that we can obtain further information and conduct the investigation.

Adv Bawa: You then refer to the need for cost cutting in paragraph 60.

Mr Samuel: Yes.

Adv Bawa: You refer to the 2018/19 Annual Report. Can you elaborate on that?

Mr Samuel: Yes. It was justified in the following terms that the PPSA implemented various cost containment measures from 2017 in an effort to reduce spending on non essential expenditure – items like travel and subsistence, accommodation, catering, advertising and outreach programmes. This resulted in PPSA reducing actual expenditure on that significantly from R9.5 million in 2016/17 to approximately R3.5 million in 2018/19.

Adv Bawa: So what was your issue with this?

Mr Samuel: The issue was that if we made this kind of saving, where was the benefit? Where would it be absorbed, it was actually absorbed in litigation costs. A lot of other programmes suffered. Money was channelled from services related to investigations to litigation. Outreach cannot be described as a non-essential expenditure. It is a constitutional imperative for the Office of the Public Protector, along with investigation and reporting.

Adv Bawa: I'm sorry I skipped over that. You do say earlier that under Section 182(4) of the Constitution, the PP Office must be accessible to all persons and communities. Is that what you're referring to?

Mr Samuel: Yes, that's what it is.

Adv Bawa: In paragraph 65 you deal with the impact on investigations and administration.

Mr Samuel: Yes.

Adv Bawa: You have already talked about requisitioning funding from Head Office. How did that impact on your operation in the Provincial Office?

Mr Samuel: The impact was that even though we had our own provincial budgets and funds were allocated in terms of it, when you try to access the funds in order to operate, which was from a central controller at Head Office, those requisitions would be declined. The only reason invariably would be that 'funds were depleted', even though we knew that we have not used up our budget because we planned for the whole year. Sometimes during the middle of the year, you were told that your budget is depleted.

Adv Bawa: You mentioned that you were grounded, what did you mean by that?

Mr Samuel: Travelling was not allowed. It literally stopped. The vehicles that we had in order to travel, either for outreach or investigations, were grounded. They could not be driven. This included us as senior managers; we had to use our own vehicles but claim for expenses for travelling from the Office,

Adv Bawa: For investigations, could you go out and investigate?

Mr Samuel: No, we effectively did our investigations from the Office, from the desktop, calling the departments, sending emails and so on. We could not go and do inspections nor meet with complainants.

Adv Bawa: This was during the 2018/19 period?

Mr Samuel: That is correct.

Adv Bawa: Did you ever raise these concerns?

Mr Samuel: Yes, I did

Adv Bawa: I raised them in the management meetings, which had by then been reduced to being conducted virtually from our offices.

Adv Bawa: What was the response you got?

Mr Samuel: Invariably, the response would be that we must take the issue outside of the meeting and individually ask the CEO what the reason was. When you did take it out of the meeting, the CEO would tell you that there was no budget, the money had been depleted.

Adv Bawa: Who took the decision?

Mr Samuel: He would just say the decision was taken at Exco, which was comprised of the Public Protector, the Deputy Public Protector and the CEO.

Adv Bawa: In paragraph 70 you deal with the think tank. Initially, you say that the think tank had operated?

Mr Samuel: That's correct.

Adv Bawa: Then it was not operating any longer.

Mr Samuel: That is correct.

Adv Bawa: Surely any person who comes into the Office can change how matters operated in the Office?

Mr Samuel: Yes. That is correct.

Adv Bawa: That doesn't necessarily there's nothing wrong with that. You agree?

Mr Samuel: Yes, there's nothing wrong with that. We don't have to continue operating the same way simply because things have been done that way. I mean, there could be various reasons that influence the necessity for a change. It was up to the leader of the institution, in this case, the Public Protector, to change how we do things.

Adv Bawa: The manner in which the think tank operated was set up so that everybody from across the country would converge in Pretoria for a few days, every quarter, to consider reports. By abolishing that structure you save time and you save costs, didn't you?

Mr Samuel: Yes, that was the case. But you know, it also affected the quality of the reports that would have been subjected to a peer review. It really assists where we all come together and quality assure reports to assess their readiness to be released. We had a lot of success.

Adv Bawa: In doing away with the think tank, it wasn't that there was nothing that replaced it.

Mr Samuel: There was nothing wrong with doing away with it which perhaps travelling all the way to Head Office for all managers coming from different provinces. But consideration could at least have been given to continue the think tank virtually, at least to see if it is going to work or not.

Adv Bawa: Did you suggest this at any stage?

Mr Samuel: No, I don't recall suggesting it.

Adv Bawa: There was a quality assurance mechanism in place to consider reports when the think tank didn't exist anymore.

Mr Samuel: Yes, there were.

Adv Bawa: What was the difficulty with that which was put into place?

Mr Samuel: There are different things that were tried, I think at some stage there was what was called the test team. And at some stage, and this comprised of people, mainly senior investigators, maybe two or three would be assigned to quality assure reports and then at some stage the Public Protector directed that reports be sent to her via the senior manager for legal services, who was just one person who had to quality assure. That was way too much for him. Essentially, there was nothing wrong with that provided it yielded the results that we wanted, meaning the quality of reports. My assessment is that this was where everything went haywire.

Adv Bawa: There was a certification process put in place, wasn't there?

Mr Samuel: Yes, there was.

Adv Bawa: Where you had to take responsibility for the reports coming out of your provinces.

Mr Samuel: Yes, there was that certificate of compliance she introduced. Starting with the investigator who was assigned to do the investigation. When they handed it over to their line manager, they would have to sign that certificate of compliance. It was a very good innovation and it went all the way up to her.

Adv Bawa: Then there was an issue of training. You had some cause for concern for ongoing training in the organisation.

Mr Samuel: Yes, training has always been provided, since I joined the Office in 2000. At any given point in time, investigators would either resign or go to other institutions and new investigators were appointed. There was always the need for continuous training. Some of the training we got from judges about drafting reports. We would also get training from other ombudsman offices outside of South Africa. There was also internal training. It was done away with.

Adv Bawa: There was less external funding for purposes of training. So that funding that previously been available was no longer there.

Mr Samuel: Yes, it was no longer there, because we would either get funding from foreign governments, more particularly the German government or some NGOs in Germany, that would fund our training at no cost to the Office each fiscal year.

Adv Bawa: You say even other kinds of training that didn't have cost implications.

Mr Samuel: All kinds of training activities. It had the effect of affecting the quality of our reports.

Adv Bawa: Okay, in paragraph 91 onwards, you talk about an unhealthy workplace. You are a member of the trade union, the Public Servants Association (PSA), correct?

Mr Samuel: That is correct. I'm still a member.

Adv Bawa: How did you obtain information about what was going on in the organisation?

Mr Samuel: The information would come from the PSA when they briefed all members, either through circulars or meetings about the kind of complaints they're getting from members regarding the way the Office was operating or against the Public Protector. They would brief us all about their engagements with the Public Protector or the Office in trying to resolve those complaints. That was one way that we got to know about what's happening in our offices.

Adv Bawa: In paragraph 92, you talk about the impression you had about information. Tell us about that.

Mr Samuel: Yes, the view that we all had, particularly as senior managers, was that when the PP came in 2016, she had some kind of knowledge about some of the activities we had been involved in individually. In 2017, I think it was when she made opening remarks in one strategic planning session, which we generally hold around October/ November. She went to town attacking some of the managers or most of them with specific information about what they allegedly had done or that she knows. I was one of those. She mentioned in that open forum that I had allegedly assaulted a complainant. She put it as a fact that I had assaulted the complainant, stating ‘imagine what the media would do if they got wind of that.’ She would go to the next person and attack them directly.

Adv Bawa: Would it not have been expected that she knew this information because she was the head of the organisation?

Mr Samuel: When we discussed that during the break, we thought that the fact that she came from the SSA might have given her that advantage to have that information. We did not have a copy of the handover report from Adv Madonsela but this is not information that would have been relayed in that kind of report. We had no idea where she got that from.

Adv Bawa: It was merely a suspicion.

Mr Samuel: It was a suspicion. I'm just mentioning it because that's what we thought.

Adv Bawa. You then say that she sought to undermine the work of the Office. Can you explain that? That lots of people left office or that there was a high departure rate of senior staff members.

Mr Samuel: Yes. Before she came in as the Public Protector, I remember even in the interview that she went to, the politicians kept saying to her, ‘You are going to an office that is high up there that has over the years built up good prestige and is well known and it has success in its in its operations.’ They impressed on her not to undermine that kind of prestige. Her actions coming in was either to force people out, especially senior managers, or make the situation so untenable for them that they ended up resigning.

Adv Bawa: In what way?

Mr Samuel: Firstly, there were other committees that were in place at the time. I remember the editorial committee, which would then be the last committee that edits our draft reports before they get signed by the PP. Other committees that generally advise the PP on the aspects of reports to give her the satisfaction that the reports were ready to be released. Those people were forced out. They either resigned or some information would be used against them to force them out. As far as work is concerned, she took charge of all the investigations, all the complaints that we had as an Office, from the simplest of complaints to the most complex. She introduced a system where we had to populate the spreadsheet, she insisted that she wanted reports on those cases every week, with the result that it shifted our focus from actually doing investigations to only meeting our deadlines, because some of the deadlines will be very tight. In some cases, you would perhaps have a meeting with a member of the executive, and would then be required to, in preparation for that meeting at very short notice provide information. In most cases, this was information would be requested of us nocturnally. We would only see when you got to the office that you have a deadline at eight. That information requested probably came the night before or in the early hours of the morning. Failure to comply would be followed with some kind of consequence management. It generally affected the morale of the staff. That is how I make the observation that she undermined the work of the Office.

Adv Bawa: If we can just take it maybe one at a time on the weekly meetings, on investigations and reports. What is so wrong about it because I understand that there was a huge backlog at the Office and there was a desire on the part of the PP to work this backlog away and not leave it there for her successor. It became a mechanism by which this backlog was going to be eradicated.

Mr Samuel: There was nothing essentially wrong with it. What was wrong, what was objectionable was the fact that in order to provide this information, we in turn had to have our own meetings and so we spent most time in meetings collating this information, populating the spreadsheet, accounting to our executive managers who then sat in the meeting with her. They got directives from her on each of those cases, how they should be handled going forward. It was the threats attached to not complying or being late with those that really affected our morale. There was nothing wrong essentially with taking charge of that.

Adv Bawa: How did these threats you're referring to manifest themselves?

Mr Samuel: The CEO would take action against those that do not comply or have executive managers take action - consequence management, charge people, and so on. That was an everyday thing, you had to justify why you should not be charged and provide reasons and so on.

Adv Bawa: Did you get such a charge?

Mr Samuel: No. Fortunately, I never got that.

Adv Bawa: Was that because you did not miss deadlines? Or what was the reason?

Mr Samuel: No, I missed quite a lot of deadlines. The reason I missed them was because if a deadline is unreasonable, and I have to give a report within that time, it would mean that I must give substandard work in order to comply; that would be malicious compliance. I would be generally be late, but make sure that my report is thorough and it covers everything. That was what my line manager appreciated at the time. I think he would generally shield me from action against me, where he also felt that the deadline was unreasonable.

Adv Bawa: So you did not face the impact of that kind of approach?

Mr Samuel: Personally, I did not because I insisted on taking my time doing what was required of me. Once I sign my signature to a report or a document, I take ownership of whatever it stated.

Adv Bawa: When you talk about these deadlines, if you didn't submit by the deadline because you were ensuring a quality report, then it would not actually impact on the quality of the report. Right, making sense, Mr Samuel? If you took the time to finalise your report, then would you accept that that wouldn't affect the quality of your report?

Mr Samuel: Yes.

Adv Bawa: So in paragraph 102, the deadlines for investigation outcomes and reports. If you could maybe explain that in the context of your submission.

Mr Samuel: Adv Mkhwebane would demand say that certain deadlines be met. If you required an extension legitimately in order to comply fully, she would not grant those. People feared the consequences of the disciplinary action, and so submitted substandard work because they were not allowed sufficient time.

Adv Bawa: Were you given substandard work by people under you?

Mr Samuel: Yes.

Adv Bawa: What would you then do with it?

Mr Samuel: I would take my time to fix what I found objectionable, so that as I sent it on, it met the required standard.

Adv Bawa: Even though you didn't meet the deadline?

Mr Samuel: Yes.

Adv Bawa: You then say that this resulted in an overworked and demoralised staff complement fearing their jobs. Did you feel like that?

Mr Samuel: Yes, I did.

Adv Bawa: If no letter was issued against you, and you submitted your reports late, why did you still feel like that?

Mr Samuel: No one can function normally if there's always a constant threat against you. At some point, you have to make a choice whether you should be charged for not complying or complying late and not for submitting substandard work. That was my approach. It took its toll on me as well but I preferred doing that then.

Adv Bawa: Do you think that as a consequence of you adopting this approach, it resulted in shoddy work?

Mr Samuel: No.

Adv Bawa: You then talk about persons who were unfairly targeted by the PP and you refer to some of the people in the affidavit. I will give you an indication of who I anticipate to come and give evidence so that they can speak for themselves.

Mr Samuel: One of them was the executive manager to whom I reported. There were allegations of misconduct against him. As a result of that, he was suspended. An external law firm, Strauss Daly, was appointed to investigate the allegations against him. The law firm concluded the investigation and submitted a report which absolved him and he returned to work. There was also a criminal case opened which also did not go anywhere – because the senior public prosecutor declined to prosecute. More than a year after, he resigned. In the last week that he was serving notice, he was then charged for the misconduct that I've just referred to. He appointed me to represent him in the disciplinary hearing. The disciplinary hearing never took place. We asked for postponement because he was off sick. The postponement was granted and that was the end of that matter.

Adv Bawa: You don't have knowledge as to what happened in that year.

Mr Samuel: No, I do not. And then you refer to Ms Mogaladi. 

Mr Samuel: Yes. She was one of the executive managers at Head Office. They started together in the Office as senior investigators in December 2000. She was responsible for the investigation into the financial sector, following a complaint lodged by the EFF. The investigation led to a report that was challenged in a judicial review and set aside by the court. The PP alleged that Ms Mogaladi had set her up. She was charged, along with others. She was found guilty on some of the charges. It did not warrant a dismissal. Even though the chairperson had found that they were not to be dismissed, the Public Protector then wrote to them to inform them that they must give reasons why she should not dismiss them. This was challenged in the Labour Court and they were then reinstated. There is pending litigation.

Adv Bawa: Mr Madiba had passed?

Mr Samuel: That is correct.

Adv Bawa: You then refer to other individuals, as people who you regarded as having been targeted.

Mr Samuel: Yes, that's correct.

Adv Bawa: What security clearance did you have?

Mr Samuel: None.

Adv Bawa: You served on the think tank?

Mr Samuel: That's correct.

Adv Bawa: Did you apply for security clearance?

Mr Samuel: Yes.

Adv Bawa: What transpired?

Mr Samuel: Nothing. I applied two times since Adv Mkhwebane came in and insisted on that, but up until today, nothing happened with those applications. We have completed the forms and supplied whatever information was required to the security manager and he sent it to the SSA. But no security assessments were done at least up until I was dismissed.

Adv Bawa: The introduction of security clearance or the necessity for security clearance in the organisation was introduced by Adv Mkhwebane.

Mr Samuel: That is correct.

Adv Bawa: And prior to that?

Mr Samuel: It was not a requirement, it was sufficient for us just to sign annual confidentiality clauses. Security clearance was never a requirement. It is now a requirement when positions are advertised for investigations and perhaps in finance and so on.

Adv Bawa: In the two decades that you worked at the PP Office, did you need to handle top secret or classified information or anything of that kind?

Mr Samuel: No. The bulk of our work does not does not involve those. That might be a requirement; it would be in relation to information that one might have to acquire in the course of investigating the executive. Those have always been confined to the Public Protector to investigate. The requirements would be for her, not for us. Our documents were never classified.

Adv Bawa: You regarded the imposition of the security clearance requirement as a reason people were removed or excluded.

Mr Samuel: Yes. Initially, we were we were very reluctant to accede to the instruction for people to do their security clearances, because it was the first time that had been introduced and we regarded that as a way of trying to remove us from our positions. This was particularly informed by the fact that the Deputy Public Protector at the time and the CFO at the time had issues around their security clearance. One was dismissed because of that.

Adv Bawa: You were not involved in that labour dispute at all.

Mr Samuel: No, I was not.

Adv Bawa: I have no further questions

Closing remarks
The Chairperson thanked Adv Bawa for leading the session and the responses from the witness. He stated that Adv Mpofu would start the cross-examination the following morning, due to the health issues of the witness.

Mr K Mileham (DA) stated there was an outstanding matter. This being the response from the Public Protector to the questions that were raised over a week before. Those were meant to be in by Friday at 5pm – he did not believe any Members had seen those responses as yet.

The Chairperson stated that he was on top of that issue. He did not want to get into it now. It was a matter being handled ‘quite diligently.’

The meeting was adjourned.