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AD HOC COMMITTEE ON THE APPOINTMENT OF THE PUBLIC PROTECTOR
23 August 2002
FINALISATION OF RECOMMENDATION - PROCESS EXTENDED
Chairperson: Mr. MJ Mahlangu (ANC)
Documents handed out
Report on the Appointment of the Public Protector (see Appendix)
The Committee noted that the interviewed candidates were of high calibre and excelled in certain requirements, but no one candidate excelled in all requirements. In the light of the fact that three nominees on the short list of ten candidates had withdrawn and because there were also no women nominees, the Committee felt that it was unable to recommend a suitable candidate to the National Assembly.
The Chairperson said that political parties could come up with their recommended names from the list of those interviewed. He reminded members that in the first round of nominations they had only received seven nominees. The Committee had agreed on 29 July that they needed a bigger pool of candidates. The nomination process was re-opened and ran for two weeks and ten more names had been received. Of the original seven nominees Professor Majola had withdrawn his candidacy. Ten candidates had been short-listed for interviews. Two had withdrawn and Judge Moloto had that very morning sent a letter withdrawing from the process.
Mr. H Schmidt (DP) asked whether the meeting was opened or closed to the public as the media was present. He stated that he would be uncomfortable to discuss the candidates in the presence of the media due to the media publicity received by the Public Protector's appointment process.
The Chairperson said the meeting was open and asked the members not criticise candidates that they do not favour.
Mr. M Mzizi (IFP) suggested that the media should be cautioned not to "blow issues out of proportion". He concurred with Mr. Schmidt's concerns saying that he feared that the media would misconstrue discussion about certain candidates.
Mr. J Durand (NNP) said the meeting should be open and he did not have any problems - even if the media is around.
Mr. L Ngculu (ANC) said that there is no need to impugn any candidate - they should only comment on the names of those with which they are satisfied.
Adv Masutha (ANC) commented that the committee members should not feel constrained if they feel they need to comment on people or differ in their views.
The Chairperson maintained the meeting would remain open and pleaded with the media not to see this as party political games.
Mr. Mzizi said although he had not interviewed all the shortlisted candidates the curriculum vitae of candidates Douglas Stewart and M A Gumbi stood out as impressive. Of these two, he was further impressed with Douglas Stewart who spoke of changes, transformation and the role he has played during his tenure. Mr Mzizi said the level of his independence also impressed him. Mr. Mzizi highlighted that it was unfortunate that it seemed that the womenfolk were not interested in this post. Mr Mzizi further stressed that integrity was important for the post and transformation does not mean that the committee just put in Black people.
The Chairperson concurred that it was unfortunate that not a single woman was nominated for the post.
Mr. Schmidt admitted to being relieved with the withdrawal of the latest candidate, Judge Moloto, because people should not be nominated by political parties. He continued to say that he found the two candidates Douglas Stewart and A Gumbi as the two most impressive from the shortlisted pool. Mr. Gumbi had impressed him by his proactive approach and his comments about being accessible to the rural public. Mr. Stewart impressed him with his good credentials though he had hesitated when asked about his accessibility to rural people.
Adv. Masutha commented that he had not had the privilege of being present for all of the candidate interviews but he had looked at the CVs. In determining who should fill the vacancy they should bear in mind that according to the Act the Public Protector's remuneration should be higher than that of a judge so the candidate should be seen to be fitting for such a promotion.
Mr. Ngculu said the three withdrawals were unsettling and in view of the strict provisions of the Act he concurs with Adv. Masutha.
Adv Masutha, Ms. Z Kota and Mr. Ngculu supported the suggestion of an adjournment so that parties could caucus.
The Chairperson noted that the IFP and DA had come up with the same two names. He proposed that members take a 30 minutes break to think about the entire process thus far.
There was an half hour adjournment so that parties could reflect.
When the committee reconvened the Chairperson announced that Adv. Schmidt had requested an hour more to consult with his principals. The rest of the members felt that an hour was too long.
Adv. Schmidt said he had been unable to get hold of any senior members of his party because they were all tied up in press briefings. He did not have the mandate to represent his party on such a crucial issue.
Ms Z Kota suggested that they should take a decision with the understanding that they are awaiting confirmation from the DP.
Mr. Ngculu believed that the decision they taking must be one of consensus. Therefore he suggested that they break and reconvene later so as to accommodate Mr. Schmidt.
Adv. Masuta felt that the resolution from this platform must go on record as unanimous and free from any party - political games and therefore they should break for half an hour to give DA an opportunity to consult with his principals.
The Committee adjourned and the Chairperson encouraged members to talk to each other and engage in bilaterals. This was done and they later reconvened, Adv. Schmidt having succeeded in contacting his principals.
Mr. Mzizi, for the IFP, said he believed that the process of finding someone for the position should be extended even if it meant that the period for the current incumbent lapses. He said that Mr. Baqwa's deputy should take over in the interim.
Ms. S van der Merwe (ANC) said they have a substantial problem as there have been so many withdrawals, poor response and no women nominees. She added that there are 13 political parties represented in Parliament and they need to increase the representation of political parties. They had had wonderful candidates but, as the ANC, they feel that there is nobody that they can recommend.
Adv. Masutha said the broader public had been caught unaware by this process and a second chance may solicit a greater response. Parliament should assist with publicity. The position of a Public Protector is equivalent to that of a Judge and they should have a broader spectrum of people.
Mr. Schmidt, for the DP, said he supports what has been said. The DP is in favour of the process being fairly advertised. As has been mentioned, the participation of women should be encouraged.
Mr. Durand, for the NNP, said he supported the motion that the process should be extended because it had been tarnished by what had been reported in the media.
A resolution was taken and supported by all parties present for the process to be extended. The Public Protector has a specific constitutional duty on his/her shoulders so Parliament should not be rushed just to appoint anybody.
The Chairperson closed the meeting by saying that this was a very difficult task. He encouraged committee members to take the party politics out of it and appoint a person who has the interest of the public at heart.
The meeting was adjourned.
Report of the Committee on the Appointment of the Public Protector
The Ad Hoc Committee on the Appointment of the Public Protector wishes to report as follows:
The Committee first met on 26 June 2002 and agreed to advertise for the position of Public Protector. Seven nominations were received in response to this advertisement.
The Committee met again on 29 July 2002 to consider these nominations. At this meeting the Committee unanimously agreed that it would be advisable to invite further nominations and therefore the nomination process was reopened for an additional 2 weeks. Advertisements were placed in newspapers for the following two weekends.
A further 10 nominations were received bringing the total to 18. At this time one of the initial nominations was withdrawn reducing the final total to 17 nominations.
A meeting of the Committee was then convened to shortlist candidates to interview for the position. A short list of 10 candidates was unanimously agreed upon.
Interviews were arranged with the 10 short listed candidates and during this process, two of these candidates withdrew their nominations. A further candidate withdrew after being interviewed.
While the Committee was generally impressed with the high calibre of candidates interviewed, it was felt that none of the candidates fulfills ALL the requirements for the position. In the light of this and the fact that so many nominees withdrew, the Committee regrets that it is unable to recommend a suitable candidate to the National Assembly.
The Committee therefore recommends that the National Assembly acts in terms of Section 3(4) of the Public Protector Act of 1994, which provides
"...that whenever the Public Protector is, for any reason, unable to perform the functions of his or her office, or while the appointment of a person to the office of the Public Protector is pending, the most senior Deputy Public Protector available shall perform such functions..." , until the National Assembly is able to finalise the process of making recommendations to the President.
The Committee further recommends that in re-advertising for the position a range of professional publications are considered to elicit a greater response from suitably qualified persons including women.
The committee members felt that in order to give the process a chance and in view of numerous withdrawals, poor response and the absence of female applicants they should close the process because they could not recommend someone. The interviewed candidates were of high calibre and excelled in certain requirements, but no one candidate excelled in all requirements. Furthermore, the Act allows the most senior deputy Public Protector to act if the tenure of the Public Protector expires before a suitable replacement can be appointed.
The Committee felt it needed to re-advertise the position more extensively. Parliament should look at ways to expand the publicity especially in institutions where women are likely to be found, in order to assist in finding a suitable person. The Public Protector has a specific constitutional duty on his/her shoulders so Parliament should not be rushed just to appoint anybody.
The Chairperson closed the meeting by saying that this was a very difficult task. Committee members should take the party politics out of it and appoint a person who has the interest of the public at heart.
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