AFFIDAVIT J, the undersigned, TEBOGO KHOLOFELO KEKANA Siaia under oath that: 1. | am ae adult mele living In Pretoria, employed in the office of the Pubic Protacter of South Africa ("Public Protector") as a Serlor Investigator. tam 4 qualified attorney and an officar of the Court, 2. The facts contained in this affidavit are within my personal knowledge. uniess it appeara otherwise from the context, and ara both irue and correct. 3. Where I make any legal submissions, | do go on the advice of my legal representatives. PURPOSE OF THIS AFFIDAVIT 4. The purpose of this affidavit is to place on revord, and make 2 protected disclosure regarding severat instances of what | consider to be improper behaviour within the office of the Public Protector under tha leadership of the current incumbent of the office, Advacaie Busisiwe Mkiwebane ("Advocate Mitwebane"). | make this allegation basad on my personal knowledge and experience working ditectly under Advocate Mkhwebane in the circumstances | describe below. 5. This affidavit seeks to make a protected disctosure pursuant to the Protected Disclosines Act 26 of 2000 ("PDA") in that it discloses infarmation regarding6 a4 62 2 the conduct of my employer (being the Public Protector) which, in my view, is irregular and improper. 1 believe that this disclosure compies with the conditions contained in seetion 9(2) of the PDA | shall transmit this affidevit in dus course to: the Speaker of Parliament; and the Presidentof the Republic of South Africa. BACKGROUND 10, After graduating from the University of Pretovia with a Bachelor of Laws (LLB) degree in 2094, | bagan my legal career by serving my ericles of clerkship at Chilcane & Associates from January 2006 to July 2006. [was admitted as an attorney In the High Cou of South Africa in 2008. ‘Thereafter, | continued working for Ghiloane & Associates, before taking up the position of ciakns handler for the Road Accident Fund from July 2007 to ‘Ourober 2044 Ucined the office of the Public Protector as an investigator in Octover 2011, during Advocete Thufi Madansela’s tenure as Public Protecter. Advocate Madoneols was the predecessor to Advecate Mkhwebane. tn this capacity. | attended to all incoming complaints and preliminary investigations. i also performed cualily assessment of complaints, drafted memoranda, reporis and correspondence for the Public Protector, and supervised trainee investigators. in December 2016, afer Acvacate Mkhwebane had been appointed as Public Protector, | was appcinied as a Senior Investigator in the Quaity FE. Len, 12. 13, 3 Assurance Unit of the Puble Protector. The purpose of the Quality Assurance Unil was fo quality assure all reports and section 7(8) notices within the institution. In January 2017 | was transferred to tha Private Office of the Public Protector, In this copacity, | reported directly to Advocate Mkhwebane, 1 conducted the invastigations of matters identfied by Advocate Mkhwebane ‘for investigation in the Private Office, dratted formal assessments and memoranda fer the Public Protector, attended to alt allocated queries and correspondence on behalf of the Public Protecter, attended te Task Team and Think Tank mastngs, drafted, reviewed and edited repons of the Public Protector, and coached end supervised trainees in the Quality Assurance Unit. Tremained in the Private Office of tha Publle Protector until Dacember 2017, when { was transferred to the Provincial Investigations and Intagraticn Unt. In my capacity as Senior investigator in this Unit, | conducted investigations, crafted notices and reports and conducted the quality assurance process of reports and notices allocated by the Senior and Executive Manager for Provincial Investigations and Integration. In addition, 1 reviewed! and investigated matters from provincial offless of the Public Protector and acted 3 Senior Manager on occasion. In tha course of my employment within the office of the Public Protector, | witnessed and acquired knowledge of severat troubling Instances of improper conduct by Advocate Mkhwebene hersef. These instances are celailed below.‘THE CIEX INVESTIGATION 14, 19, 16, Following @ complaint taid in 2010, the Pubile Protector conducted an investigation and published @ report tiled "Report on an investigation into allegations of maladtrinistration, corruption, misappropriation of public funda and talture by the South African Goverment to implement the CIEX Report and to recaver public funds from ABSA Bank" (‘ihe CIEX investigation report’). The CIEX investigation had begun during the term of office of the former Public Protector, Advocate Madonsela, but Advocata Mkhwebane took over the investigation, The CIEX investigation report addressed wheiher the South Afri Government should have impiamenied the tecommendation by Ciex, a British company contracted to investigate alaged miseppropriations of funds by the Aparihold era government, es recommended in the Ciax Report: Opsrations on behalf of tha South African Government August 1997 - December 1999 On 21 December 2016, the Public Protecior's provistonal report on the CIEX investigation ("the provisional report”) was leaked and made publicly available. ‘The provisional report is attached marked "TK". The provisional report had never been quelily assured prior to it being leaked, This was also, in my experience, 3 significant departure from standard procedure. When the provisional raport was leaked. | noticed that it contained numeraus errors and was missing vital Information. ( Inforrred Advocate Mkhwebane of the errors and missing information verbally In our meetings in her office and Advocate Mkhwetane indicated to me that these issues shouls be attended ©. After the leak, the organisation Gack First Land First (BLF*) requested @ meeting with the Public Protector in order to discuss the provisional repo.47. 18 19, 2. 8 This meeting was held on 12 January 2017. During this meeting, he BL ingicatad that they wished to be a complainant In the CiEX investigation. As the investigation had alraady progreseed significantly, the BLF wore informed that they coud not ba 2 complainant. However, Advocate Mkhwebane invited the BLF to make submissions on the Investigation (cespite the tact that the BLF was in no way involved in the matters pertaining to the investigation or eny other relevant mater). ‘As part of the investigation, former Public Protector, Advocate Madonsela, interviewed Mr Billy Masetha, a representative of the State Security Agency ('88A°), pror to the provisionat report being finalised. . The transcript of this interview, however, was misplaced, As @ result, Advocate Mkhwebane requesied a meeting with the SSA ard asked me fo attend. Ths mootng ‘occurred on 3 Méy 2017, after the provisional report had been firalised, Advocate Mkhwebane and | attended the meeling with representatives of the ‘SSA, Mr Jamas Ramabuiane and Mr Arthur Fraser, in order te cbtain further submissions from the SSA on the investigation The Minister of State Security at the ime, David Mahlobo, also attended this meeting. ‘On the day of the meeting, | was informed that Advocate Mkiwebane was having a discussion with Minister Mahlobo prior to the macting | was not Party to this discussion. | found it odd that Advocate Mkhwebane would hold a discussion by herself with one of tho altendees of an interview, without anyone else present, The formal meeting then began. When the meeting with the SSA began, 1 took ou! my notepad in ordes to lake notes of the meeting end took cut my recording device in order to record the meeting (as | usually co). Advocate TE2 22. 23. 6 Mkhwebane, howaver, insttucted me to not record the meeting, She also instructed me to not take any notes curing the meeting. ( was extremely Surprised by both of these instuctions, They were entirely oul of Ite ordinary. had always recorded evary meeting which | attended with the Public Protector (either in the form of an audio recording or in writing). The Public Protector was of course aware that this was standaré procedure, Aacordingly, (here is no recording of this SSA meeting as t was instructed not to make ene, Afier al paris (Including the BLF) made thelr submissions on the investigation, the drafting process of the final report began. | was tasked with drafting the final repor. While | was drafting the final report, Advocate Mihivebane told me that | must find a way to include a recommendation in the final report in terms of which the Constitution of the Reoublic of South Africa (‘the Constitution") would have to be amended to caler for the nationalisetion of the South African Reserve Bank (’SARB"). Advocate Mknwebare never informed me of what purpose or motive such a recommendation would serve. | prepared several versions of the dratt inal report. None af the drafts which | prepared included @ recommendaton that the SARB be nationalised. This wes because | did not believe that thls recommendation was warranted based on the findings of the investigaion, In fact | thought that such recommendation was bizarre. On 4 May 2017, Advocate Mihwebane provided me with her comments cn the draft in an email attached marked “TK2’. Advacate Mkhwebane’s comments are typed in capital letters in tha emalt. As can be sean from this email, Advocate Mkhwebane instructs me to "AMEND THE CONSTHUTION FR, le24, 2. 28. ? TO CATER FOR STATE BANK PER GOODSON PROPOSAL". The feferonce to “Goodson” is to the economist, Stephen Goodson, with whom Advocate Mkhwebane alse met after the provisional report was faaked, | did not agree with this suggestion by Advocate Mkhwebane, nor did f boleve that this recommendation was warranted ot legally sound. Despite this, 1 followed her instructions and submitted the final drafl report to Advocate Mkhwebang, as per her comments on 17 May 2017 which included the recommendation that the SARB be nationalised @s per Stephen Goodsen's suggestion On the same day, 17 May 2017, | received an email ftom Advocate Mkhwebane, attached as annex "TKS" (‘the SSA email"). in ‘his email, Advocate Mkhwebane thanked me for the final draft report and steted that She had asked SSA fo provide ineut and economist’. The input that she was seeking [rom the SSA relaied lo her desire to include a recommendation in the raport to amend the Constitution te allow for the nationalisation of the ‘SARE, | pause to note that, in the 2017 High Court applications to review the findings of the CIEX Investigation report by the SARB, Minister of Finance and National Traasury, and ABSA Benk Ltd, tha SSA ema wes inexplicably omitted from the Rule 63 record. It has never heen disclosed untk row. On or arourd 6 June 2017, | attended a meeting with Advocate Mkhwebane and representatives from the SSA - namely Mr Mai Moodley and Mr James Ramabulane, Mr Moodley was introduced to me by Advocate Mkhwebane aS an “economist” who would assist with the constitutional amendment recommendation In the CIEX investigation report,27. 28, 29. 8 During this meeting, Mr Moodley produced a single page which contained 2 Graft of proposed recommendations which were ta be inserted into the final feport, The page containing the recommendatons fam Mr Moodley is attached as annex "TK4". The recommendations fom Mr Moodley states, inter alia, the following: “His recommended that the following sections in the Constitution, relating to the South African Reserve Bank be emanded as follows, end that all comesponding legistation be duly amended: 224. (1) The primery object of the South Aftioan Reserve Bank is to promote balanced and sustainable economic growth in tne Repubtic, while ensuring that the socio-econamie well-being of the citizens are protected. (2) The South Afican Reserve Bank, in pursull of its primary object, must perform its functions independently and vitheut Fear, favour or prejudice, white ensuring that bul there musi be reguiar consultation between the Bank and the Cabine! to achieve meaningfut socio-economic transformation’ ‘Advocate Mkhwebane instruciad me to insert the recommendations received from Mr Moodley inte the final repert, which was published on 19 June 2017. | cid so, Accordingly. the remadial action contained in the final CIEX investigation report dit not come trom the office of the Public Protector, but rather from the SSA. linformed Mr Isaac Matlawe, the Senior investigator in the Quality Asaurance Unit, of this imeguiar incident and he was taken aback. Mr Matlawe was Supposed to quality assure the final report. However, he was not given an Te u 6 Ww9 opportunity to da $9 prior to the release of the final report, Thus, the final reporl was never quality assured ‘THE REVIEW PROCEEDINGS 50. In 2017, the SARB, Minister of Finance and Nafional Troseury, and ABSA Bank Lid insiituted review proceedings against the Public Protector in relation to the findings of the CIEX Investigation report, 31. Twas tasked with compiling the Rule 53 record for the review proceedings, 9 part of this process, ! llaised with the attorneys representing the Public Protector, Sefanyetso Attomeys, as well as counsel for the Public Protector. 32, In Augusi 2017, | attended @ meeting with Sefanyeteo Attorneys. During this meating, | informed the atiomeys ot the fact that the recommendations contained in the final CIEX investigation ceport had actually been prepared by the SSA. 33, On my way to a meeting with the attorneys and Advccate Azhar ham SC (who wos on bret for the Public Protector al the time), | received @ cal irom Advocate Mkhmabane who said that she does not want ail the drafts of the CIEX investigaton report to be included in the Rule 5 record. Advorale Mitwabane said that the drafts which were prepared during her drececessor, Advocate Thuli Madoneela's tenure, could be Included but not tho drafts prepared during ner tenure. I relayed this message to the atiomeys and Advocate Bram SC, Advocale Bham said thal the drafts could ‘not be omitted from the Rule 53 racore as they were relevant to the raview - the rule requires ali relevant documents to be included and disclosed in the Rule 9 record. Advacate Mkhwebene vehemerty opposed this curing a telephone conversation with ma.34, 365. as. 37, 10 “Two weeks later, | allended another meeting with a new legal team who tad been appointed by the Public Protector. Sefanyatsa Altomeys and Advooate Bham were not in attendance. Instead, the meting was with Michael Bit Motsoeneng Attemeys and Advocate Cape Motimele, This was the first tine that | isarned that Advocate Mkhwebane had appointed naw counsel and attorneys. 'infomned Advocate Motimele of all the information at my disposal regarding the CIEX investigation, including tha fact that aspecis of the recommendations in the toport ware prepaved for the Public Protector by the ‘SSA lisell and no! by her. Enote that Advacate Motme'e, tao, was eventually replaced as caunse/ on the matter. Another thing which | found odd during the Rtigetion of the mater was that Mr. Sibusiso Nyembe, now Chief of Staff of the Public Protector, attended ‘wo meetings with the Punic Protecter’s legal represortatives. ir Nyembe, however, was nat en employee of the Public Protecior at the time of these meetings. Advocate Mkhwebane introduced him ie the meetings as her political advisor, At the end of November 2017, | was called to a meeting with Mr Gumbi Tyelela, @ senior Human Resources manager. | waa informed during this meeting that Advocate Mkhwebane no jonger wanted me to work in the private office of the Pubic Protector. When | asked for the reasons for this decision, | was (old thal it was because Advocate Mkhwebane was of the ‘opinion that J say too much to the lawyers representing the Public Protector in the review proceedings. Alter ihis meeting, | iokt Advocate Mkhwenane that | did not undarstand why | was being asked io leave the private office but" ‘hat | accepied ‘his decision. | was accordingly transferred to the Provincial inwastigations and Integration Unit in December 2017. THE VREDE DAIRY PROJECT REPORT 38, 39, a. in Febuary 2018, the Public Protector releazed 9 report on the Viede Dairy Project in te Free: State tiled "Report on aa investigation into complaints of malatiministration against tho Free State Depactment of Agriculture in respect of non-adherence to Treasury prescripts and lack of financial control in the sdmiaittration of the Viede integrated Dairy Project" (‘the Vrede Dairy Project Report’) | was informed thet Advocale Mkhwebane had removed the investigation from thi ital investigator on the matteey, Mls Erika Celliers of the Free State Provincial office, as it was alleged that she was @ member af the Democratic Alliance, | was ‘hen appcinted as lead investigator in this matter. | was assisted by Mr Nditsheni Raedani and Mr Muntu Sithole, We all reported to Mr Regmnalt Nou, the executive manager for the Provingiel Investigations and Integraton Unk. Much of the evidence needed for the Investigation was contained in the leaked emails of embers of the Gusta famity (which became popularly known in the media as the #Guptaleaks). Advocate Mkhwebane, howover, stated that the #GupteLeaks were not to be used in the investigation or included in the repor.. { was also informed by Mr Néou that Advocate Mknwebane had inetructed him not to make any findings in the report aganst any politician. We wera accordingly forced to remove any adverse findings contained in the report against eny politician, Inctuding Mr Ace Magashule, the Premier of the Free12 State at ine relevant time, and Mr Moseberzi Zwane, who was the MEG for the Free Siate Department of Agriculture at the time. 42, On 8 February 2018, the investigation team was metructed to report to ‘Advocate Mihiebane's boardroom for a meeting with her. | attended vatts the team. Mr Nisumbenzen! Nemasis, the Seniot Manager. Legal Services, Was also in altendance. During the meeting, Advocate Mkhwebane Instructed us to remove material information relaling 10 the investigation, including Information relating to the ination of goods and information ratating {tc beneficiaries, Mr Nemasisi wamed Acvacato Mehwobane about removing vial information in the report, as it could feed to a review. Aduccate Mihwabane incicated that she did not care whether ihe report was reviewed oF not, 43. | note that ihe Democratic Allance and the Cound for the Advancement of the South African Constitution successfully applied to have the Vrede Dairy Project Report declared unconstitutonal and set aside by the High Court. | was not involved In tha review proceedings; by then, as I have said, {hac been relocated at the instance af Advocate Mkhwebane. HARRASSMENT AND INTIMIDATION OF ME BY THE PUBLIC PROTECTORS OFFICE 44. On 29 May 2018, | was informed by Ms Maureen Papo. the human resource Officer, that | was required to aitend an interview to be concusted by Diale Mogashoa Attomeys on 31 May 2019. When | requested the reasons and Purpose for this meeting, | was advised that it wes not Necessary for me to have this information, | requested the reasons for this investigation to be Provided to me in writing. To date, these reasons have never bacn provided FR. be46, 48, 47. 48. 83 On 31 May 2019, | aliended the meeting with Diale Mogashoa Atomeys together with my union representative, Advocate Jeno Singh, No offcial fram Ihe office of the Public Protector was present at the meeting, which found to be odd. Al this meeting, Diale Mogashoa Atlomeys Informed me that they had been mandsied te conduct an tavestigation by the Public Protector's office, Advocate Singh and | raised concems about the process of the investigation and requested an assurance that the process was property constituted and lawful. In addition, | confirmed that | had no! received any written correspondence regarding the purpose of the Meeting or what it was ‘about ang that it appeared fo be an ambush. ‘Alter we raised theso concerns, the attorneys requested us to leave the roam 50 that they could discuss the matter. After 10 minutes, we wore called back into the room and were advised tnat the proceedings would not coninue as they would discuss the concems raised with the Office of the Public Protector and the meeting enced. Fifteen minutes tater, Mr Gumbi Tyelela, the Senior Manager: Human Resources, iniomed me that | was required (o hend over my laptop to Diale Mogashoa Attorneys, requested reasons for this end was advised to speak to he CEO of the Public Protecior's office, Mr Vussy Mahlangu, When | asked the CEO for reasons why | was being asked fo hand over ry faptop, he told me thal Diala Mogashoa Atiomeys were conducting a fect- finding investigation into communications between Mr Baldwin Neshunzhi, the Senior Manager: Security, and Mr iswac Mallawe. The CEQ alo insisted that | must hand aver my laptop so that 3 copy of if could be made as |was a perscn of interest in the investigation. I handed over my laptep under protest FR. Le49, 494 492 43.4 49.5 50. a1 4 Several concerns about this were raised in an email fram Advocate Singh Salad 31 May 2019, atiached as annex "TKS", including the folowing: the process undertaken by Diale Mogashoa Axcrneys was not ‘Sanctionad by any polloy of the Public Protector’s office, ‘8 6 shop-sleward, | have confidential and orlviteged information on my faptop which wes received from otter employees in he Public Protector's cffice who are curenty participating in grievance Procedures, The employer, agains whom the employees hed taid grievances, would now have accose to this information; in addition, § have sensitive information regarding pending investigations being conducted by the Public Protector on my laptop. Il wes unclear whether the attomeys had recelved secutlly clearance to he In possession of this information; this process eppeared to be @ fishing exoedition, possibly with the intention to find something on my feplop which coulc be used against me in order fo charge me: and there were no assurances provided as to the legitimacy of the process. ‘These concerns were algo raised in a formal grievance which | laid on 7 June 2018 attached as annex "TK6", as well as a letler from the PSA Union 19 the Public Proxector dated 7 June 2079 attachad as annex *TK7”. The grievance was never altended or responded to. ‘On 27 June 2010, | received a letter attached as annex “TKB" in whicr | was invited fo comment on the preliminary findings of Diale Mogashoa Atiomoys that | disseminated certain confidential information without authority. CE. Le62, 83. 54, 55. 6 | respended to this letter cr § July 2019. My response is allached as annex "TKS". AS can be sean from my response, 1 denied all allegations of wrongcoing. In adidion, t raguasted further information and a detailed explanation on the charges against me in order to enable me te properly Fespond to the findings ageinst me. To dale, no response has been received ‘o my request for further Information, On 23 July 2018, | received @ notice of intention to place me on Precautionary cuspension as a resull of the finding that, according to the CEO, my response to the preliminary findings did not provide satisfactory answers to ihe allegations egainst me, The notice of intention to placa me on Precautionary suspension is attached as ennex “TK10". No reasons were Provided for how or why my responee wae unsatisfactory. Furthermore, 00 rationale wes provided on how the decision to institute format disciplinary Proceedings against me was arrived af | responded to che notice of intention to place me on grecautionary Suspension in a letter dated 2 July 2019, attached as annex "TK11". in my response, | poinied out that the lack of reasons for the decision to place me on precautionary suspension wes entirely prejudicial to me. Furthermore, & Precautionary suspension is only resorted to hy an amplayer where there is a Pending investigation agalast the employee. | had not been informed of any Pending investigation against me. Il therefore appears that the purpose of the precautionary suspension is fo punish me and to harass ard victimise me 85.2 rosuit of me raising concems of maladminisiration within the office of the Public Protector. On 4 August 2019 (after my laptop was ratumed to me after being seized), ! FE noticed that ai the emails stored in my archive folder from the email i C58. 97. 16 addresses Uinwenanes lama and Susisive nO froin 2017 had disappeared. | sent an ‘emait to our IT Depariment about this, attached as annex "TK12. The IT Department could not locale the emaits in the archives of my Outlook email account and could ‘only retrieve them on Mimecast, an onling back-up storage system for our email account, The IT Department could not exatain why these emaits were no tonger in my Outlook orchives. (On 27 August 2049, | was placed on precautionary suspension. The notice Of precautionary suspension is attached as annex “TK13". in addtion, a Formal discipinary inquiry was instituted agains| me. The charge sheat in relation to the d'sciplinary inquiry (as amended) is attached as annex "TK24" ‘The hearing of the disciplinary inquiry was scheduled far 18 to 20 September 2019 but was posteoned lo 2 to 3 October 2019, due fo the unavailability of the Chairperson of the inquiry. On 2 October 2019, a further postoonement was requestad by the Office of the Public Protector, as they had included an outdated iT policy in thair bundle of avidence. As a rasul, the matter was Pestooned, yet again, to 7 'o 8 Novernber 2019. On 15 October 2019, the Chairperson of the inquiry requested @ furiher postponement as he had io attend a Strategic Planning Session fram 7 to 9 November 2019, tt was eventually agreed te posipone the matter to 21 to 22 November 2019, The matter has again bean postzoned at the instance of the Office of the Public Protector in order to introduce @ new document into the bundle of avidance. At the time of deposing to tis affidavit, my disciptinary inquiry hearing has nat yet baen held, cc Fz. oODEPONENT The ceponent has acknowledgad that the deponent knows and understands the contents of this affidavil, which was signed ard wom io befre me at S hel tert on this the 12-day of December 2019, the regulations contained in Government Notica No. R1258 of 21 July 1972, a6 gmended, and Government Notice No. R1648 of 19 August 4877, as eirended, having been complied wit. COMMISSIONER OF GATHS Fuil oames: Business address: Designation: Capacity: ATTORNEY [asa STH FLCCR. 8: XATHERINE STREET SANDTON Z196 pate lP LIZ | 2-0