Short-listing for Public Protector interviews

Appointment of Public Protector

07 September 2009
Chairperson: Advocate T Masutha (ANC)
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Meeting Summary

The Committee had had to re-advertise for nominations for the position of Public Protector as an insufficient number of candidates had been nominated that actually met the requirements of the Public Protector Act. With the closing date of 4 September for the second nomination period now past, the Committee went through the second batch of nominations – noting the accomplishments or deficiencies of each candidate.
They weeded out the candidates that were the least suitable. The 14 remaining candidates were added to the chosen list of 19 candidates from the first batch. Out of this pool, the political parties suggested their preferences and consensus was reached on a list of 8 candidates for interviewing.

The candidates for interviews during the following week were:
Mr Thulisile Nomkhosi Madonsela
Mr Mhlaliseni Michael Mthembu
Prof Mzamo Alexander Gumbi
Advocate L Pienaar
Adocate AE Mpofu
Advocate Mamiki Thabitha Shai
Advocate MA Chiktay
Advocate LKB Mpumlwana

Meeting report


The Committee secretary gave a report on the first batch of CVs they had received during the first round of nominations and how the candidates had fared. He corrected minor numbering mistakes and pointed out that there was an updated version of Mr Mohamed’s CV as the one he had handed in before was 10 years old.

The Chair took over and gave background information about the second nomination process for the benefit of those members who had not been present at the initial meeting to consider nominations. The reason they were sitting down to look at a second batch of CVs was that they had agreed at their last meeting that half of the CVs they had received did not qualify. This was firstly because the applicants did not meet the requirements as most of them came from young graduates under 25 looking for employment who did not even meet the minimum requirement of 10 years work experience. Secondly the office was a critical one as it was one of the Chapter Nine institutions, therefore it required multi party input. As a result they had had re-advertise for nominations once more with the closing date for nominations: Friday 4 September.

The Committee then went through the CVs eliminating the ones that did not qualify.

The Chair suggested that the Committee go through the latest CVs eliminating the ones that did not meet the requirements for the post. They would look at the CVs they had received and, with the assistance of the Committee secretary, select potential candidates.

The Committee noted that Mr J T Harper had a strong financial background as he was an associate director for Ernst and Young but he did not possess an equally strong legal background.

The Chair said that the Act was clear on the fact that the administrative work had to be done in the public sector so it did not count if the one had worked for 10 years for Anglo American doing administrative work.

The Chair then moved on to Mr Tutani who was currently working for the Auditor General. The secretary pointed out that he had a strong legal background but had worked as an attorney only for five years between 1980 and 1985.

The Chair remarked that even though Mr Tutani had many accomplishments he clearly did not meet the criteria for 10 years accumulative experience in public administration.

Ms D Smuts (DA) asked for the criteria that one had to fulfill for one to be considered a possible candidate for the position.

The Chair referred the Committee to Section1(A)(3)(a)-(f) of the Public Protector Act attached to the first batch of CVs and listed the requirements for the position. The secretary read out the section:

Section 1A (3) The Public Protector shall be a South African citizen who is a fit and proper person to hold such office, and who-.
(a) is a Judge of a High Court; or
(b) is admitted as an advocate or an attorney and has, for a cumulative period of at least 10 years after having been admitted, practised as an advocate or an attorney; or
(c) is qualified to be admitted as an advocate or an attorney has, for a cumulative period of at least 10 years after having so qualified, lectured in law at a university; or
(d) has specialised knowledge of or experience, for a cumulative period of at least 10 years, in the administration of justice, public administration or public finances
(e) has, for a cumulative period of at least 10 years, been a member of Parliament; or
(f) has acquired any combination of experience mentioned in paragraphs (b)

Ms Smuts pointed out that it did seem that Mr Tutani might have sufficient public administration experience.

The Chair remarked that if that was the case then Mr Tutani might actually qualify but they needed to confirm the cumulative years he had worked in the public sector.

Ms Smuts noted that the CV did not give a clear indication of the number of cumulative years.

The Chair then said that it was not the job of the Committee to guess the number of years one had worked. The onus was on the candidate to make sure that it came to the attention of the Committee.

The Committee also struck off from the list Mr KY Khan whose sole experience was being a senior teacher for 27 years. The other candidates that did not meet the criteria were Mr JJ Wantza, Mrs N Jourbet and Mr AT Mokoma.

Mr M George (COPE) asked if the Act made specific reference to age.

The Chair replied in the negative.

Mr George asked if it was possible for an 80 year old to apply.

The Chair replied in the affirmative.

Mr George remarked that he had asked about age because the Constitution clearly stated that discrimination on the basis of age was wrong.

The Chair replied that a person’s age did come into play because one could be underage. He gave an example of an 18 year old who he said would never be able to meet the criteria due to the fact that they would not have time to acquire the requisite 10 years experience. In addition he said that the constitution disallowed only unfair discrimination not every form of discrimination.

The Committee agreed to consider 14 nominations which they added to the first batch.

The Chair asked for suggestions as to how they should proceed.

Ms Smuts recommended that they target requirements as opposed to a set figure of candidates.

Ms N Michael (DA) reminded the Committee that in their initial meeting they had agreed to short list 6 or 7 candidates for the job. Looking at some of the CVs, there were some that were clearly outstanding.

Mr Ndlovu suggested that they sift through the first batch to come up with a shortlist then look at the second batch and then combine the two and finally choose the best candidates.

Mr M George commented that if the ruling party had candidates they had already decided upon they might as well tell Committee to see if the other parties wanted to endorse them. He said this because his reasoning was it was a matter of numbers and he had no wish to go through an academic exercise of short listing candidates and then have the candidates chosen by the ruling party, foisted on them. He would rather get it over and done with.

The Chair replied that this was a joint effort and no one party had more power over the other.

Ms Michael confirmed what the Chair had said and she remarked that she had faith in the process and commended the Chair for the way he had handled the exercise because from the very beginning it had been a group effort. She said that if anyone had been at their first meeting, one would have seen that there was no form of coercion.  She noted for the benefit of the persons who were not present at the first meeting that the process had been collaborative with everyone listening to everyone else and pitching in.

Mr S Ntapane (UDM) suggested that each party make its own shortlist and present it and then they would choose the candidates from the proposed nominees.

Ms Smuts, Ms Michael, Mr M George and Ms A Dlodlo (ANC) agreed.

Ms Smuts added that after the short listing they could tick off the names they had in common. That way the process would be faster.

The Committee agreed to keep the number of short-listed candidates to 7.

The Chair requested that the parties break and caucus the candidates they wanted to put into the pool before actual short listing.

Caucus break

After a break, the Committee reconvened and presented their party short lists.

Mr Ndlovu presented the IFP list: Mr Mhlaliseni Michael Mthembu (10), Mr Mzamo Alexander Gumbi (4), Thulisile Nomkhosi Madonsela (11) and Advocate Mamiki Thabitha Shai (5) from the first batch. From the second batch he listed Advocate MA Chiktay (13), Advocate L Pienaar (10), Advocate RW Skosana (3) and Advocate AE Mpofu (4).

Mr M George said that from the first batch COPE had as number one the current deputy Public Protector Advocate Thabitha Shai (5), Prof Mzamo Alexander Gumbi (4), Thulisile Nomkhosi Madonsela (11) Advocate AE Mpofu (4), Mr Mhlaliseni Michael Mthembu (10) and Advocate L Pienaar from the new batch.

Ms Smuts and Ms Michael said that the DA list of proposed candidates were from the old list: number Mr Mhlaliseni Michael Mthembu (10) , Thulisile Nomkhosi Madonsela (11) and from the new list Advocate RW Skosana (3),  Advocate AE Mpofu (4) Advocate L Pienaar (10) and Advocate MA Chiktay (13).

Mr Ntapane listed the UDM candidates: Mr Mzamo Alexander Gumbi (4), Mr Mhlaliseni Michael Mthembu (10), Thulisile Nomkhosi Madonsela (11) and from the new list: Advocate AE Mpofu (4), Advocate L Pienaar (10) and Advocate MA Chiktay (13).

Mr J Sibanyoni (ANC) said that at this stage they had only looked at the old list and their list consisted of Advocate Thabitha Shai (5), M Mr Mhlaliseni Michael Mthembu (10), Mr Solomon Bokaba (8), and Prof Mzamo Alexander Gumbi (4) Mr Jacobus Johanes Brynard (2) and lastly Advocate Thulisile Nomkhosi Madonsela (11).

Afternoon session

Ms Dlodlo listed the candidates from the second batch they had chosen during the lunch break and the list consisted of Advocate RW Skosana (3), Advocate AE Mpofu (4), Advocate L Pienaar (10), and Advocate MA Chiktay (13) and in addition they had added two new names which were Advocate LKB Mpumlwana (2) and Advocate TP Mageza (6).

The Chair stated that they had successfully finished the first stage which was the scaling down of candidates and they were now embarking on the second stage which was the short listing of candidates.

Ms Smuts suggested that ANC drop one name from their list as it was too long and suggested dropping Mr Brynard.

The rest of the Committee agreed that Mr Brynard was not a suitable candidate.

The ANC agreed.

Ms Smuts suggested that in short listing the candidates they start with the names that were common to all parties, followed by the ones with the support of four and so forth, until they got to the number of candidates they wanted.

The Committee agreed and the list of candidates they jointly agreed upon was: Mr Mhlaliseni Michael Mthembu (10), Mr Thulisile Nomkhosi Madonsela (11), and the Committee dropped Advocate RW Skosana (3) who they thought fell short of the criteria. They then agreed on Advocate AE Mpofu (4), Advocate L Pienaar (10), Advocate MA Chiktay (13), Thabitha Shai (5) and Prof Mzamo Alexander Gumbi (4).

The Chair asked if the Committee felt strongly about any other person although they should be mindful of the fact that they were sitting with 7 candidates already.

Ms Dlodlo suggested Advocate L Mpumlwana. The reason for her choice was that Advocate Mpumlwana had been shortlisted seven years before for the job and he had lost the position of Public Protector to the current Public Protector because the Committee that sat for the selection felt that the current Public Protector was the stronger candidate

The Committee agreed to add Advocate Mpumlwana to the list as they did not feel that 8 candidates was too long a list.

It was agreed that the candidates would be contacted immediately for interviews scheduled for the following week.

The Committee adopted the minutes of the 18 August meeting.
Meeting was adjourned.

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