Interviews for Public Protector Position

Appointment of Public Protector

11 August 2016
Chairperson: Dr M Khoza (ANC)
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Meeting Summary

The Ad Hoc Committee formed to interview the 14 candidates for the post of Public Protector asked searching and relevant questions in the course of the marathon session.

The most commonly asked questions aimed at establishing the candidates’ notions regarding their fitness and propriety to fill the post. They were also asked what their response would be to an allegation of financial impropriety by a Member of the national legislative arm of government. Several candidates were questioned about what concrete plans they had to ensure far greater access to the Office of the Public Protector, especially for the country’s rural poor.

The issue of how the Office’s activities would be funded was extensively interrogated, given the present financial constraints, and candidates were asked whether they would consider a funding model outside of the Parliamentary appropriations process. Lastly, almost all candidates were asked about their practical legal experience.

Meeting report

Questions posed by the Ad Hoc Committee to Public Protector (PP) candidates

Candidate 1

Adv Mhlaliseni Michael Mthembu

Adv G Breytenbach (DA) said that Adv Mthembu had indicated through his questionnaire that he had no relevant matters concerning his honesty, integrity and reliability that should be disclosed before the Committee.

She asked if it was correct that Adv Mthembu had two civil judgments against him in favour of Nedbank and South African Revenue Service (SARS) respectively, for significant amounts. Once it was confirmed that the only existing judgment against him was that in favour of Nedbank, she asked on what date the judgment had been given and if he had repaid the amount owed to the bank.

She said it had been confirmed that he had been found guilty of unprofessional conduct 27 years ago, involving acts such as failure to reply to correspondence, failure to pay fines levied by the Law Society, double booking and failure to pay subscription fees, and asked if he would agree that he had a history of ignoring his financial commitments.

Mr N Masondo (ANC) asked how relevant Adv Mthembu’s academic knowledge and skills were in relation to the position of the Public Protector (PP). He also asked for his comments on intergovernmental relations, and how they could impact positively or negatively on the role of the PP.

Dr P Maesela (ANC) asked for an analysis of the significance of the PP being designated as a Chapter 9 institution in terms of the historical underpinnings, current priorities, and its contribution to the building of the national democratic society. An analysis of the role of the office of the PP in enhancing the objectives of the developmental State, on the grounds that the office of the PP was there to assist the State in improving on its constitutional obligations, was also requested.

Mr S Swart (ACDP) noted that financial constraints remained a major challenge facing the office of the PP. He asked how Adv Mthembu would deal with the financial constraints being faced by the office, especially because of the recent constitutional court judgment that required a review of many PP decisions by the court. He asked about Adv Mthembu’s management skills, and whether he had any experience in running a large office.

Mr F Shivambu (EFF) asked for the role Adv Mthembu had played in opposing apartheid, whether he was affiliated to any organisation that had fought against apartheid, his understanding of the relationship between the PP’s office and Parliament, and his understanding of the Executive Members’ Ethics Act, and how best the Act could be implemented.

Mr S Mncwabe (NFP) asked what current challenges were facing the office of the PP, as well as a recommendation on what should be done to resolve the challenges, bearing in mind the recent Constitutional Court judgment delivered by the Chief Justice.

Ms P van Damme (DA) asked for Adv Mthembu’s political affiliations – whether he was a member or office bearer for any political party. She also asked if he had the requisite skills to investigate matters reported to the office of the PP, and if he considered the findings of the PP were legally binding.

Ms G Tseke (ANC) asked how Adv Mthembu would ensure that provincial offices were strengthened and capacitated, and that there would be a transfer of skills from national level to local level. What would be his response to a complaint or an allegation of financial impropriety against a public office bearer of the national legislative arm of the State, brought before the office of the PP?

Ms M Mothapo (ANC) said that the post of PP required a high degree of integrity, which was best defined by the characteristics of honesty, principle, honour, reputability, truthfulness, trustworthiness, incorruptibility and uprightness. She asked if Adv Mthembu’s associates had attributed the above mentioned characteristics to him, and whether there were examples to buttress such instances. Was there anything that could hinder the Committee in reaching a decision on his fitness and integrity to hold the office of PP?

Mr B Bongo (ANC) asked what constituted the independence of the office of PP, and how such independence would be applied. What was Adv Mthembu’s understanding of the meaning of ‘without fear and favour’?

Prof C Msimang (IFP) asked if Adv Mthembu had the capabilities required to manage the finances of the office of the PP.

The Chairperson, in moderating the answers of Adv Mthembu, emphasised the need for concise answers. The ability to communicate effectively within a limited time was stressed as one of the attributes that would be considered for a PP. She cautioned him against attempting to read through his curriculum vitae (CV) in answering the question of investigative skills, noting that Members had received and perused his CV beforehand.

Candidate 2

Judge Sharise Erica Weiner

Ms Mothapo referred to the timeous delivery of some judgments during Judge Weiner’s five-year term as a judge, although some had been delivered after three months. However, most of the judgments delivered were not relevant to the position of PP, and her legal specialization was corporate law. She asked, therefore, if Judge Weiner regarded herself as having the relevant experience needed for the position of PP. What were the reasons behind the delay in delivering judgments within the set norms and standards required for the performance of judicial functions? Some of the cases for which judgment had been delivered after the three month prescribed period were highlighted.

Dr Maesela asked Judge Weiner to analyse the significance of the PP’s office in terms of its historical underpinnings, current priorities, contribution to the building of a national democratic society, and how the office would assist the State in improving on its contribution to constitutional obligations in enhancing the objectives of the developmental State. He stressed the need to build a national democratic society and developmental state in relation to some judgments about evictions from houses without an alternative, as this had created an enormous strain on the lives of the people, and on the state as well.

Ms Tseke asked for the means by which the provincial offices of the PP would be strengthened and capacitated in order to ensure adequate service delivery to the people. She asked for the response that Judge Weiner would give if a complaint and an allegation of financial impropriety against a public office bearer of the national legislative arm of the state was brought before her, if she were the PP.

Adv Breytenbach asked for an elaboration of Judge Weiner’s view of the office of the PP as one that would fight corruption and align itself with the national development plan (NDP).

Mr W Horn (DA) asked for Judge Weiner’s view on balancing swift justice while adhering to the rules of natural justice in investigations, without duplicating the functions of the courts.

Mr N Koornof (ANC) noted that Judge Weiner had been called to the Bar of England and Wales in March 1990, and it was assumed that she underwent the necessary pupillage and exams. He asked for the reason behind getting such pupillage. He also commented that South Africa had a limited number of women on the Bench, and asked for her comments on serving South Africa better by remaining in the judiciary. He sought her view on the components of the independence of the PP’s office.

Mr Swart asked about the relationship between the PP, Chapter 9 institutions in general, and Parliament. It had been pointed out that a Constitutional Court’s decision (EFF judgment) suggested the probability of more reviews of the PP by government departments. In view of that decision, Judge Weiner was asked to explain how she would deal with the additional funding constraints likely to be caused by the numerous reviews.

Mr Shivambu asked what role Judge Weiner had played in the struggle against apartheid; the relationship between the PP’s office and Parliament; what the consequence of failure to comply with remedial actions by executive members should be; and who the PP should report to if the President violated the Executive Members’ Ethics Act.

Ms Van Damme asked about any experience that Judge Weiner had had in dealing with political opponents, or attacks on any of her judgments, and how she had dealt with such attacks, if any. What was her view on the accountability of Chapter 9 institutions to Parliament -- in terms of answering to Parliament, or merely reporting to Parliament?

Mr Bongo asked for an understanding of what constituted the independence of the PP in relation to other spheres of government.

Mr Masondo asked for Judge Weiner’s view on balancing the relationship of the PP with intergovernmental organisations in such a way that antagonistic tendencies could be avoided.

Mr Mncwabe asked for a clear understanding of the activities carried out by the ‘Warm the World’ non-profit organisation (NPO) founded by Judge Weiner.  What were the sources of funds for the NPO, and what communities were being serviced by it?

The Chairperson asked Judge Weiner for a proposal on how to address the challenges of budget constraints for the PP; what remedies should be given to assist the national fiscus in recovering the huge amounts being lost to corruption annually; the role of the PP in integrating society in such a way that the linguistic divide was linked to economics; how many of the official languages were spoken by Judge Weiner; and practical examples of ways in which high profile cases would be balanced in relation to ordinary ones.

Candidate 3

Adv Chris Madibeng Mokoditwa

Mr Bongo asked Adv Mokoditwa about the elements that constituted the independence of the PP in relation to other spheres of government, and what the reason was for the nondisclosure of a judgment against him by Standard Bank, which was relevant to whether he was fit and proper to hold the post of PP.

Adv Breytenbach asked for the key challenges facing the country; the role of the PP in supporting national democracy; the rationale behind Adv Mokoditwa’s view that prisons should not be State-funded, but should be self-sustaining, and why this fell within the purview of the PP; and why he believed that concerns about the high salaries of South African civil servants and the reduction of gun use came within the purview of the PP.

Dr Maesela asked for an explanation on how the office of the PP would assist with the development of a national democratic society and enhance the objectives of a developmental state.

Ms Mothapo asked for the key attributes that the PP should possess, and if Adv Mokoditwa possessed any of those attributes relevant to being fit and proper for the position of PP.

Mr Masondo asked for an elaboration of Adv Mokoditwa’s academic record and skills, and why such records and skills qualified him for the post of PP. He also asked for comment on his understanding of intergovernmental relations, and where the PP fitted into such relations.

Ms Van Damme asked if he had considered an application to the Bench since he became an attorney in 1973 and an advocate in 1994; the result of his application to the Bench, if he had applied; and reasons for not applying to the Bench, if otherwise.

The Chairperson asked for Adv Mokoditwa’s view on his age working against him for the position of PP, especially as the current challenges facing the office of the PP demanded an energetic person capable of managing different stakeholders. How would he manage the numerous stakeholders, as this was critical to ensuring an effective office of the PP?

Mr Shivambu asked for Adv Mokoditwa’s philosophical view on the land issue in South Africa, how the land dispute had been resolved since 1994, and what role the PP could play in dealing with the issues around land ownership; his view on the debate around the limitations of the PP’s powers, or whether the PP’s decisions were binding; the relationship between the PP and Parliament; and his understanding of how to enforce the Executive Members’ Ethics Act.

Ms Van Damme notified the House of the social media posts that revealed that members of Rape Crisis were being prevented from entering the venue for the meeting. Protection Services were advised that the meeting was an open one and no one should be prevented from entering the venue to observe.

The Chairperson also emphasised that Parliamentary meetings were open to the public, and those prevented from entering the venue should be allowed in.

Candidate 4

Judge Serajudien Desai

Adv Breytenbach referred to page 5 of Judge Desai’s questionnaire, and read out his answer to the question on why he believed he was the right person to serve as the next PP, as well as his answer to the question which asked for his opinion on what the key challenges facing the country were, and the role the PP should play. She sought clarification on the meanings of the answers, and on his submission about defending hundreds of thousands of activists.

Mr Horn said that the Constitutional Court’s judgment had clarified the binding nature of the powers of the PP. It had found that a key attribute sought for in the PP was zero tolerance for impunity. The Public Protector Act (PPA) simultaneously required that the office be fit and proper, which implied that any indications of dishonesty amounted to being unfit and improper for the office. He then referred to the Mumbai incident in which Judge Desai had been found not guilty and the charges had later been withdrawn. He asked for Judge Desai’s comment on the fact that the incident had been widely reported, and that he had initially denied the allegation of any sexual intercourse on his part, but had later stated in his defence that it had been consensual sexual intercourse. He asked for clarification on how such different versions of the facts of the case could have been alluded to by Judge Desai. What was his view on the country’s immediate need for a PP who would carry out his duties without being high profile, seeing that he had stated in an interview that “My life has always been controversial; everything I do is high profile”.

Ms Van Damme noted that Judge Desai had a number of health issues, and asked if those health issues would affect his ability to carry out his functions as PP, bearing in mind that the position was for a seven-year term. She also asked if Judge Desai would regard himself as being cool-headed, especially since his records showed his involvement in some public disagreements and confrontations with his colleagues.

Mr Koornhof asked for Judge Desai’s understanding of the independence of the PP, and if he would respect that independence at all times.

Mr Swart asked for Judge Desai’s opinion on the possibility of the PP liaising with Parliament, and with the Justice Committee. This was because a link had been created through the budget emanating from Parliament, and also because the office of the PP was currently battling with severe financial constraints. He asked how Judge Desai would resolve the issues around PP’s relationship with Parliament, as well as the financial issues.

Mr Masondo asked what skills would contribute to enhancing the office of the PP; the role of the PP in preventing antagonistic relations among other government institutions, and maintaining a balance between intergovernmental institutions; and a comment on whether the PP should protect the people as a whole, and not just a certain group of people.

Mr Mncwabe also referred to the question in Judge Desai’s questionnaire on why he believed he was qualified for the job, and his answer, which was to the effect that “Chapter 9 institutions are fundamental pillars of democratic State and their interest are to be protected, advanced and preserved”. He asked for the strategies that would be employed to ensure that the interests of the PP’s office were protected and preserved.

Mr Shivambu referred to the way the current PP, Adv Thuli Madonsela, had conducted herself while in office, and especially the way she handled attacks, insults and opposition. He queried whether Judge Desai had the stable temperament required to deal with the pressure that came with the criticisms of the position and office of the PP, seeing that he had earlier displayed some form of impatience by interjecting during the questioning session. He also asked for a proposed solution to the inflated civil service salaries; the meaning of being a socialist in relation to Judge Desai’s aspiration for a transformed society; his opinion on the assault by the protection services of the Presidency on a group of young women protesting against rape; whether he felt there was a wrongdoing on the part of the President in the construction of private residences, as revealed by the “Secure in Comfort” report; and his opinion on the means to enforce the Executive Members’ Ethics Act properly.

Mr Bongo asked for a comment on the objection from Afriforum, which was to the effect that Judge Desai had served as a legal adviser to Umkhonto we Sizwe, and whether this could impact on his fitness to hold the post of PP. He also asked for a comment on the judgments raised against him after his nomination for the post of PP.

Ms Mothapo noted that objections to Judge Desai’s nomination had been received on the grounds of impartiality. Some political parties had raised the issue of a commission of enquiry that had been set up in 2001 for Democratic Alliance (DA), the New National Party and the African National Congress (ANC), but which had made findings against the DA. The DA was therefore doubting Judge Desai’s impartiality. He was asked to comment on this view, particularly because the attribute of impartiality was key to being a PP.

Another objection to his nomination had been raised on the grounds of delayed judgments (delivery of judgments after six months and above from the stipulated time). It was noted that the norms and standards for judicial officers had come into effect only in 2014, whereas the judgments referred to had been delivered prior to the enforcement of the norms and standards. It was also noted that Judge Desai was among the panel of judges dealing with the aforementioned cases. He was therefore asked to comment on the issue of delayed judgments, not forgetting to consider the fact that the office of the PP had an enormous case load.

He was also asked to comment on the garnishee order case that had brought joy to the most vulnerable.

Prof Msimang noted that Judge Desai emphasised the wide powers conferred on the PP, noting that such powers were unprecedented in the world. He had also maintained that he was the best candidate for the post of PP, a position that seemed to contradict his initial stance on the powers of the PP. He asked for the areas where the powers of the PP could be trimmed down, if possible.

The Chairperson said that one of the biggest threats facing the continent as a whole was corruption, as it undermined the developmental agenda and development of the continent. The PP would be saddled with the responsibility of handling such corruption cases. She asked for a proposal on how to balance high profile cases with seemingly ordinary cases that affected the poor and vulnerable people. She also asked for strategies that could be introduced to assist the state to recover money that had been wrongly accumulated; and methods by which the message of the PP could reach every section of society through the use of the official languages.

Candidate 5

Adjunct Prof Narnia Bohler-Muller

Mr Bongo asked Prof Bohler-Muller to explain, with examples, her understanding of the independence of the PP and its relationship with other spheres of government. What was the reason for the nondisclosure of several misconducts for which she had been found guilty by the Nelson Mandela Metropolitan University, which impacted directly on professionalism and the attribute of fitness to hold the post of PP?

Mr Horn noted that Prof Bohler-Muller was the project leader of the Constitutional Justice Project. The office of the PP dealt with both high profile cases and thousands of ordinary cases. The Constitutional Justice Project had been first announced in 2012, and was thereafter awarded a contract worth R10 million to commence work in September 2013, for a duration of 18 months. However, completion of the contract had been delayed for more than a year. She was asked to explain why it should not be assumed that swift justice would be unattainable should she become the next PP.

Ms Tseke asked what response Prof Bohler-Muller would give to a complaint and an allegation of financial impropriety against a public office bearer of the national legislative arm of the State. What would be her recommendations on how to strengthen the provincial and regional offices of the PP in order to make services more accessible to the people on ground?

Ms Van Damme asked for Prof Bohler-Muller’s views on the Private Security Bill, particularly on the clause that allowed for the expropriation of 51% of ownership of foreign-owned security; and what section of the Constitution or Bill of Rights would she amend if she was given a chance to do so.

The Chairperson reiterated the question previously asked by Mr Bongo on the series of misconducts levied against Prof Bohler-Muller by the Nelson Mandela Metropolitan University, which questioned her fitness to hold the post of the PP. The misconducts included the disclosure of confidential information to a student; failure to report a state of ill-health to the Head of Department (HOD), contrary to the express instruction of the HOD to do so; as well as a warning issued by the HOD to Prof Bohler-Muller. She had been found guilty on all charges.

Mr Shivambu asked for the role Prof Bohler-Muller had played during struggle against apartheid; clarification on the part of the Executive Members’ Ethics Act that allowed the PP to investigate Members of Parliament, since the Act spoke only about the investigation of Members of the Executive, which included the President, Deputy President, Cabinet members, Ministers, Deputy Ministers, Premiers and Members of the Executive Councils; what steps would be taken to increase accessibility to the Office of the PP; and if she would support a constitutional amendment to Section 25 of the Constitution to empower the State to expropriate land without compensation, especially since the control of land was still in the hands of those who controlled it during the colonial regime.

Mr Swart asked how the challenge of limited resources and funding for the office of the PP would be dealt with; an explanation on the relationship between Parliament and Chapter 9 institutions, in light of the fact that the PP would be accountable to Parliament; and how the relationship between the PP and Parliament would be improved without infringing on the independence of the PP.

Dr Maesela asked what steps would be taken by the PP to contribute towards the building of a national democratic society; for comment on whether the office of the PP had been established only to address corruption, maladministration and patronage, which would strengthen the national democracy, the rule of law, and legitimacy of the state; and what contributions would be made to the constitutional obligation of enhancing the objectives of a developmental state.

Mr Mncwabe noted that Prof Bohler-Muller’s records reflected a focus on the academic practice of law. He asked if she had practiced as an attorney or an advocate.

Adv Breytenbach noted that Prof Bohler-Muller had a very impressive list of qualifications and institutions with which she had been involved. However, she had not practiced law in the robust sense of actual law practice. The office of the PP was a very public office that attracted a considerable amount of attention and positive/negative interactions. She asked Prof Bohler-Muller for the qualities she possessed that qualified her to hold such a position.

The Chairperson asked for a timeline for the submission of the information promised by Prof Bohler-Muller on the allegations of misconduct at the Nelson Mandela Metropolitan University.

Candidate 6

Adv Mamiki Thabitha Goodman

Mr Koornhof noted that Adv Goodman’s employment records revealed that she had been engaged in 11 jobs that had lasted for a period of one or two years since 1986, with the exception of her current job as Deputy PP, linked to a term. He asked for a comment on this issue, noting that it reflected an attribute of inconsistency on Adv Goodman’s part. He also asked for her views on the independence of the PP’s office.

Ms Van Damme asked if Adv Goodman was currently holding the post of Chief Compliance Officer at the National Gambling Board (NGB), as reflected in her curriculum vitae (CV), or if she had been suspended from that post, and sought confirmation of the fact that she had never been subjected to any disciplinary proceedings at the NGB. After receiving clarification about the existence of a disciplinary proceeding against Adv Goodman leading to her suspension, Ms Van Damme asked for the reason for non-disclosure of the this fact in the questionnaire she had submitted.

Adv Breytenbach asked for the period when Adv Goodman had been suspended. She also noted that Adv Goodman had a history of engaging in confrontations with her superiors, such as the confrontation with Adv Madonsela on the grounds that the latter was biased, and an accusation against former PP Adv Mushwana of sexual harassment. She asked for the plans Adv Goodman had to take up the post of PP without causing absolute mayhem, especially since the outgoing PP was greatly supported by other staff members.

Mr Bongo asked for Adv Goodman’s understanding of section 182 of the Constitution, which vested wide powers in the PP. He also referred to the various accusations Adv Goodman had brought against several people, such as the allegation of sexual harassment against the former PP, allegation of signature forgery brought against Mr Mthethwa, as well as several allegations brought against Adv Madonsela, all of which she did not win. He asked Adv Goodman to clarify the various cases of allegations brought against various individuals.

Ms Tseke asked what steps would be taken to ensure that people at the grassroots level had access to the services of the PP; and what response would be given to an allegation or complaint of financial impropriety brought against a public office bearer of the national legislative arm of the state.

Mr Swart drew Adv Goodman’s attention to the fact that an ad hoc committee had been unable to substantiate her claims against Adv Mushwana. The Justice Committee had labelled her allegations against Adv Madonsela as office politics, and that it indicated the existence of a rift during her tenure as the deputy PP. A comment clarifying this situation was requested. She was also asked to state what steps would be taken to improve the independence of the PP’s office and enhance the relationship between the PP and Parliament.

The Chairperson highlighted that the pattern of questions already posed to Adv Goodman focused mainly on her leadership style and conduct in a work environment. She had defined the role of the PP as being ‘the mother of the South African nation’. She was therefore asked to comment on the analogy used to describe the role of the PP, and to give practical examples of the role she had played while she had occupied the position of Deputy PP.

Mr Shivambu said that he was not comfortable with Adv Goodman, because of the allegations of sexual harassment that she had brought against Adv Mushwana while serving as his Deputy PP. This had led to litigation resulting in a judgment involving millions of Rands. In his opinion, Adv Goodman had acted irresponsibly through ridiculing the office of the PP, which could had led to the public’s loss of faith in the office of the PP. He what steps would be taken to increase accessibility to the office of the PP; what funding model should be adopted for the PP’s office that would exceed the appropriations office; what her views were on the PP report on Nkandla; and whether she agreed with the observation of the Constitutional Court that the President had acted outside the law and failed to uphold, defend and respect the Constitution.

Mr Horn’s question was centered on the binding nature of the remedial action of the PP. He asked if Adv Goodman had read the Nkandla judgment of the Constitutional Court and, if so, the reason for her disagreement with other legal scholars of the country that this issue had been totally clarified by the Constitutional Court to the effect that the submission was not merely a recommendation, but had a binding effect of a court order, and could be set aside only by a judicial review.

Ms Mothapo asked for an explanation of Adv Goodman’s interpersonal character and communication skills in relation to personal attributes that were relevant to the position of PP.

Dr Maesela asked for suggestions on how to transform the office of the PP into a nation-building entity.

Mr Mncwabe asked Adv Goodman to indicate what was lacking in the PP’s office, since she had worked in the office previously, how such gaps could be filled, and why she believed she was the best candidate for the position.

Mr Masondo asked for three key changes that Adv Goodman would bring about, if appointed as the PP.

Candidate 7

Adv Busisiwe Mkhwebane

Adv Breytenbach said Adv Mkhwebane was currently employed as an analyst at the State Security Agency (SSA). While she was unfamiliar with the job description, she wanted to know if this was not a demotion from the position of Director at the Department of Home Affairs (DHA). Adv Mkhwebane had described herself as a person of “prestige and influence in her questionnaire,” and could this be elaborated on. Lastly, she had had outstanding masters research for six years -- had she completed her degree, or what was the present position?

Prof Msimang wanted to know if Adv Mkhwebane had been engaged in the robust practice of law, either as an advocate or an attorney, because it was an essential requirement. He was aware that she had had three years’ experience as a public prosecutor, but he wanted her to cite other instances where she was involved in the practice of the law.

Mr Swart said Adv Mkhwebane had been with the Office of the Public Protector (OPP) between 1999 and 2005 as an investigator. At that stage, what had caused her to leave the OPP? At that point, the OPP was already facing financial constraints, although this was a long time before the judgments about the Public Protector’s remedial action. He asked for an explanation of her experience then and how she would do things differently now, if she were appointed as Public Protector, especially now that there was clear jurisprudence about the remedial action recommended by the Public Protector being binding. Back when she had been with the OPP, she would have experienced the Office’s funding constraints, and it was known that the OPP currently faced severe funding constraints -- how would she deal with these if she were to be appointed. Adv Mkhwebane also had experience with the South African Human Rights Commission (SAHRC) -- did she see a lot of overlapping in the work of the SAHRC and OPP? This had been addressed in the Kader Asmal reports. How would she address this overlap, so that the limited resources of the OPP were carefully used?

Mr Koornhof asked whether Adv Mkhwebane had any active business interests which might cause a conflict of interest, were she to be appointed.  Secondly, in her opinion, what constituted the independence of the OPP?

Mr Masondo said he had heard mention of the South African Local Government Association (SALGA) for the first time in a long while. In what way would Adv Mkhwebane envisage working with organised local government? Given her past contact with the OPP, what were the key changes which she would effect if she were appointed?

Ms Van Damme said in her questionnaire, Adv Mkhwebane had stated that the OPP could assist the state in monitoring the implementation of the NDP, with institutionalised long term planning and forging a people-centered government.  She wanted to understand how she saw the role of the Public Protector -- was it an oversight role over government, or something else?

Mr Bongo said the Public Protector Act envisaged that the person appointed as PP must be fit and proper. Further, in discharging their responsibilities, they were to act without fear, favour or prejudice. He wanted to know what her general understanding of these concepts were. Secondly, fit and proper was also related to business interests, and in her questionnaire she had been requested to provide any information on her financial interests, and she declared none. He also wanted a general comment on that.

Dr Maesela (said he would like Adv Mkhwebane to explain how she would sort out the problem mentioned in her presentation -- that “our country is faced with the challenges of poverty, unemployment and inequality. This is as a result of the scourge of apartheid and it is still a young democracy to redress the imbalances of the past. Government is not taking a radical approach to redress the imbalances between races.” This was a very mundane thing which everyone was stating currently. How would she use her experiences, if she was appointed as PP, to address these challenges, and what radical steps would she take?

The Chairperson said Adv Mkhwebane had stated that the relationship between the PP and the state should not be antagonistic. Rather it should be supportive and assist in the process. She asked for Adv Mkhwebane to share with the Committee how she would deal with the situation where that relationship became antagonistic. What steps would she take to ensure that she was still fulfilling her mandate as the PP, but at the same time striking the balance to ensure the relationship did not become antagonistic? There was a very thin line there, but Members would like to hear what she had to say. Comments had been received from the public on many candidates, but there nothing bad had been said about her.

Mr Bongo said in the report received by Corruption Watch, it stated that Adv Mkhwebane had seven active business interests, and asked her to comment on this. Secondly, from his own investigations he had been unable to confirm Adv Mkhwebane’s Bachelor of Laws degree from the University of Limpopo.. From his investigations, the degree was still pending and the University could not confirm whether she had received the degree. Could she comment?

Ms Tseke asked how Adv Mkhwebane would respond to an allegation of financial impropriety against a public office bearer of the national legislative arm, bearing in mind that the PP was accountable to Parliament.

Mr Shivambu said Adv Mkhwebane had described herself as having prestige, but also as being apolitical. What did that mean? Was she not a member of any organisation? Had she never been a member of any political organisation or organisation in pursuit of political struggles? He also wanted to know if she had proximity to any politician who served at the national level. Further, on the apolitical statement,  when she was answering the question about the key challenges facing South African society, the following three political statements had been made and he would like them explained. First, “government is not taking a radical approach to address the economic imbalances between the races”. What was meant by that and what would be her version of a radical approach? Secondly, “the Constitution, though being the best in the world, never assisted citizens to enjoy the benefits of democracy, but it was open to everyone”. That was a political observation -- and what were the limitations of the Constitution in addressing the needs of the people?  Lastly, “poor service delivery, especially in the local government sphere and lack of responsiveness is part of the major challenges confronting society.” He asked for her to dwell on that and give context to her apolitical nature. Further, how would she deal with the question of accessibility of the OPP, because earlier in her response she had responded by asking further questions, asking why we do not use one or other means? He wanted a definite answer about what she would do about local municipalities, where a lot of maladministration occurs. What would she do to ensure that ordinary people who did not have internet access and were in far flung places, had access to the PP. On the funding model of the Office, when the incumbent Public Protector had last appeared before the Portfolio Committee on Justice and Correctional Services, she had spoken about a new funding model, because there was recognition that not enough money would be appropriated for the functions of the PP, “due to a number of things which defined the sitting government”. What funding model would Adv Mkhwebane look into, that was not entirely dependent on the state? Lastly, what was the role of the PP in enforcing the Executive Members’ Ethics Act, given that when the Public Protector made findings on violations of the Executive Members’ Ethics Code, she had faced a lot of hostility from the ruling party. They had called her a CIA agent and a variety of things.

The Chairperson agreed with the question on the accessibility of the OPP.

Ms Mothapo said that in Adv Mkhwebane’s CV and presentation she had mentioned the skills which she had, including leadership and management. What was not mentioned were the qualities or attributes required for this important position. She had made statements indicating that the Department of Home Affairs (DHA) did not know about the Musina Refugee Detention Centre, but the following day the Director General of the DHA had released a statement confirming the Department’s association with the Centre. Teamwork was very important for this position in her opinion, so given that background, could she comment on the statement and mention qualities and attributes important to this position.

Mr Horn said there seemed to be a difference between the dates in the questionnaire and her CV, regarding the dates of her qualifications. He asked for an explanation of this.

Candidate 8

Ms Jill Claudelle Oliphant

Mr Mncwabe asked for Ms Oliphant’s view on what challenges currently faced the OPP and how these could be addressed.

Mr Swart said Ms Oliphant had an extensive and impressive background in law in the private sector, and had been involved in forensic investigations and due diligence. In her responses in the questionnaire, she had gone into some of the challenges at the OPP. She had indicated that the OPP was dependent upon sufficient resources, including appropriate skills, experience, financial resources and infrastructure. She had then referred to the 4 700 issues at the OPP which required investigation and stated that the only inference to be drawn from this was that the office currently lacked the capacity and resources required to meet the current demand -- a situation which should give rise concern.  Bearing in mind that there were financial constraints and that Parliament appropriates funds, how would she go about addressing those constraints? Ms Oliphant had had experience drafting legislation, meaning she should have some Parliamentary experience. How would she see the relationships between the PP and Parliament, given that the PP was an independent institution that was accountable to Parliament? He asked for an indication of how she saw that independence operating in our constitutional democracy. Ms Oliphant had disclosed an incident relating to Sun City -- could some detail be provided?

Mr Koornhof said Mr Swart had mentioned the Sun City incident, and he felt it had been clumsily worded in Ms Oliphant’s disclosure. It is difficult for him to bring a casino and the Anglican church together -- was she now properly an Anglican, or was she out of the church into the casino?

Ms Van Damme said being Public Protector required a specific skills set and qualifications, which she felt Ms Oliphant possessed. However, it also required other personality traits, such as being firm, principled and able to withstand sustained political attacks. She asked whether Ms Oliphant possessed those traits and whether she was a strong, principled person who would stand firm in the face of attacks. Further, could an example be provided where she had been under similar attack, but had stood firm on principle, specifically in her work life? Other Members had mentioned the Sun City incident, but could an explanation of the reckless driving charge, which had been withdrawn, be explained.

Mr Bongo said Section 181 of the Constitution indicated that the PP was required to act without fear, favour or prejudice -- could she share her understanding of this section? Secondly, the Public Protector Act required the PP to be fit and proper, so could she also comment on the indication by Corruption Watch that she had nine active business interests. Further, why had she not disclosed the reckless and negligent driving incident, despite its being withdrawn, as that had to do with the fitness and propriety of her candidacy?   

Mr Horn said much had been said of her 21 years in private practice, dealing especially with commercial and private law. Could she indicate to the Committee what the main duties imposed by the Public Finance Management Act (PFMA) would place on her, were she to be appointed.

Ms Tseke said in South Africa there were three arms of state: legislative, executive and judicial. Supposing an allegation of financial impropriety was made against a public office bearer of the national legislative arm, how would she respond to such a complaint? Secondly, Ms Oliphant had participated in different projects aimed at giving back to the underprivileged -- could she share the nature of the involvement and how they assisted the underprivileged. Further, South Africa was facing a huge challenge of financial constraints and most of the regional offices of the OPP had closed down, and many people in the rural areas were struggling to access its services. What was her response to this?

Dr Maesela quoted Ms Oliphant as saying, “I have always been and remain a champion of equality and fairness, as these principles are indicative that all rules apply equally to all and not just a few. However, improving the lives of others and creating positive change is dependent upon effective, diligent, transparent, corruption-free and accountable administration.” She would be familiar with the phrase freedom, equality and fraternity, which was essentially what was spoken about in the quote. He therefore would think she would understand the problem with people “who eat cake”. He thought it was a question of resources, rather than all the nice words, that brought about justice. Marie Antoinette had been guillotined because she had asked why people looking for bread, did not simply eat cakes. One should not confuse the questions of corruption-busting and justice, because they were two different things. It was not Ms Oliphant’s fault -- it was a matter of socialisation and people understanding reality out there, beyond just books. How would busting 100 or 1 000 corrupt people help him if he have nothing to eat? Therefore, one should look at what it was that would make us a cohesive nation and not different people, with different aspirations and means.

Ms Mothapo said honesty and integrity were inherent qualities for the PP position. According to information at her disposal, there had been the cell phone issue at Sun City, which she would like to have upacked for the Committee.

The Chairperson stated that this question had been answered, and asked if Ms Mothapo was not happy with the response.

Ms Mothapo said she had not heard the response. She continued by saying that Ms Oliphant had legal qualifications and had proved herself as a notary and conveyancer, aside from being admitted as an attorney. With her 21 years of experience, why did she want to leave private practice to be considered for this position?

Mr Shivambu said Ms Oliphant had stated that the key challenges facing South Africa were primarily corruption and allegations of state capture. He wanted to know what was meant by state capture, because it arose from “the reality that there is the Gupta family which has colonised the President of the ANC”. Is that what Ms Oliphant was referring to as a major challenge? She had mentioned a lot of business partnerships as a panacea to some of the challenges confronting the public sector. He was unsure if he had understood properly, but if this was the case he felt she was misguided, because there was too much corruption committed by businesses. This was particularly the case with the multi-national corporations and financial institutions, which were responsible for the theft of billions of Rands from South Africa through tax avoidance and transfer pricing. There were many illustrations of this and yet Ms Oliphant seemed to be leaning towards a business-driven solution. On the accessibility of the Public Protector, the OPP had about 20 site offices around the country, yet there were 54 districts and more than 200 local municipalities in South Africa. How would she ensure rural communities had access to the PP’s services. These people had no internet access, were poor and jobless, but they were aware of abuses by local officials. Further, the incumbent PP had indicated that there was not enough money to finance the expansion to all corners of South Africa -- what funding model would Ms Oliphant adopt to achieve this? On the Sun City incident, he was not interested in what had happened with the misplaced cell phone, but Ms Oliphant had indicated that she was gambling. Did she think it would be fair to South Africa to appoint a gambling Public Protector?

Mr Masondo congratulated Ms Oliphant for having nine companies. He wanted to know, in brief, what these nine companies did. It would also be useful to find out if the observation by Corruption Watch, that there were no risk indicators with regard to her, was correct.

The Chairperson said Ms Oliphant had aided in ensuring the public’s concerns were taken seriously, because most of the people who were overtly political had not made it on to the shortlist, as that had been an unambiguous message from the public during the entire process of public participation. So Ms Oliphant should not be surprised she had been shortlisted, and it was good that she had no political connection.

Candidate 9

Ms Kaajal Ramjathan-Keogh

Ms Mothapo said that by her own admission, Ms Ramjathan-Keogh had civil society experience and perspective, which may not be palatable to government. She had acknowledged this, and yet was a person of integrity and honesty. Could this be elaborated upon, especially why she was a fit and proper person, given that she had stated that her experience was not what was required for the position?

Dr Maesela quoted Ms Ramjathan-Keogh, who in turn had quoted former Chief Justice Sandile Ngcobo’s statement that “for a Constitution to have a meaningful place in the heart, it must address the concerns of people. Corruption, racism, violent protest, the slow pace of service delivery and access to land, are all threats to the country’s constitutional democracy.” She had said, “I agree with this and believe these are all key challenges facing our country. Transformation of South African society is important and should seek to redress key harms of the past and develop society into a future founded on social justice”. How would she carry out this injunction articulated by former Chief Justice Sandile Ngcobo, and so aptly quoted by herself?

Ms Tseke said in 2015 some of the regional offices of the OPP had been closed down due to lack of finances. This had left communities struggling to access the services of the PP. How would she ensure access for the rural poor and disadvantaged? Secondly, how would she deal with an allegation of financial impropriety against a public office bearer in the national legislative branch of the state?

Mr Bongo said his question was around the fit and proper requirement under the Public Protector Act and the independence which Ms Ramjathan-Keogh had already alluded to. He wanted to know her concepts of the above and her fitness and propriety for the position, in light of national unity and her involvement in the Omar al Bashir matter. This must be linked with her understanding of this Office being “an enemy of the state”, particularly given her role in the Omar al Bashir matter. He also wanted to know about the NGO of which she was a part, as NGOs were seen as more often acting against the state, rather than around issues which united South Africa.

Ms Van Damme said she felt it was a good thing that Ms Ramjathan-Keogh worked in human rights litigation, and that this might not be palatable to government, because the Committee was to appoint a Public Protector, not a government protector -- a person who would fight on behalf of the public, and not government. It did not matter whether the government liked the work Ms Ramjathan-Keogh did or not, as she was to fight on behalf of the public.

Mr Bongo rose on a point of order, saying that the Chairperson had given Ms Van Damme the floor to ask a question, but she was now not asking a question and was responding to what he had said.

The Chairperson asked Ms Van Damme to proceed.

Ms Van Damme said if Ms Ramjathan-Keogh was appointed, it was likely that she would have a very antagonistic relationship with government, as clearly some Members present were very touched by the great work she was doing in the public sector. How would Ms Ramjathan-Keogh deal with this antagonistic relationship?

The Chairperson said part of the reason Ms Ramjathan-Keogh had been short-listed was because she would be bringing an international justice perspective. She wanted to know whether Ms Ramjathan-Keogh had been sincere when she said the PP’s role as a Chapter Nine Institution (CNI) was to strengthen constitutional democracy, but was now also saying there may be times when the OPP had an antagonistic relationship with the state, although she was happy to be friends with the state. Under which circumstances would she be friends with the state? Given the role she had played in the Al Bashir case, could she briefly give her view on African geopolitical dynamics.  Further, what were her views on the international justice system? Notwithstanding the fact that South Africa was a signatory, there was a school of thought which argued that the international justice system had tended to be much harsher, as opposed to the western super powers. Given that Ms Ramjathan-Keogh was bringing the international angle, she felt it important to have these views.

Mr Masondo said post-1994, funding had become a very big problem for NGOs across the country. Given the number of these organisations, there were many questions to be asked, including about her own organisation. Ms Ramjathan-Keogh’s NGO operated in 10 African countries, but not much was known about it, so could she explain some more about the organisation and what it does. Secondly, the Al Bashir issue had been a high profile case -- could she indicate how much the case had cost and the source of funding? Who was funding Ms Ramjathan-Keogh’s organization, and who funded these funders? Was this organisation foreign controlled and foreign run?

Mr Swart objected, saying that no other institutions were asked these types of questions, so why was Ms Ramjathan-Keogh being subjected to this?

Mr Masondo asked Ms Ramjathan-Keogh, when answering the question about the organisation, to indicate what the aims of the Southern African Litigation Centre were, and whether it had political alliances in other countries. If so, who were these with? She had spoken about changing the state -- did this mean the same thing as regime change, as advocated by some people in Libya, Egypt and elsewhere?

Mr Shivambu said litigating against the state did not define any lawyer as an enemy of the state. That was a very sorry interpretation, and anyone who believed that was reactionary and did not understand constitutional democracy. He wanted to test Ms Ramjathan-Keogh’s philosophical commitment to the prosecution she pursued against Omar al Bashir. In the context of international peace and justice, there was always an interesting discussion around what the relationship between peace and justice was. Did she at times pursue justice at the expense of peace? Here in South Africa, there had been a deliberate pursuit of peace at the expense of justice, when “apartheid murderers were forgiven through the Truth and Reconciliation Commission process”. There had been a deliberate pursuit of peace for the transition to happen, turning  a blind eye to the justice aspect. Ms Ramjathan-Keogh was saying that justice should be pursued, even if it invited terrorists from Sudan who wanted to fight for their president. He did not know what underpinned this philosophically, because there were many cases on the continent where transitions for political stability needed to deal with the peace question first, and with justice at a later point.

As part of the key challenges facing South Africa, she had quoted former Chief Justice Sandile Ngcobo, but had also identified part of the issue as access to land. Would she as a candidate for Public Protector and as the Southern African Litigation Centre, support a constitutional change to section 25, allowing for state expropriation of land without compensation? Would Ms Ramjathan-Keogh support such a constitutional change, not land invasion? In response to the questions, she had said she was not fully aware of the OPP’s financial arrangements. The OPP had to reach out to many people and part of the limitations which the present PP faced was not being able to reach out to as many communities as possible, due to financial constraints. How would she deal with that question, particularly as she did not know how the money worked at the OPP? What was needed was someone who could hit the ground running. How would she deal with that?

Mr Swart, with reference to the 400 000 people killed in Sudan, said surely that was why the Southern African Litigation Centre had brought that application, and it was interesting that the response of Members on the panel was very similar to the response to the Nkandla judgment. He was aware that the Al Bashir matter was still pending in the Constitutional Court and Ms Ramjathan-Keogh had been asked about the cost, but he would like to know what it had cost the state. Given that it has been found that the state has acted unlawfully, this was something to be borne in mind, as it was an NGO litigating against the deep pockets of the state. While Ms Ramjathan-Keogh was a successful litigator, was she suitably skilled to manage a large office with hundreds of millions of Rands in its budget? Further, was she capable of liaising with Parliament under conditions which could be quite volatile as presently experienced? As far as the financial budgeting of the OPP was concerned, it was known that there were severe financial constraints and Parliament needed to look at that, but what other alternatives could she suggest towards helping the OPP meet its financial requirements?  

Mr Mncwabe said Ms Ramjathan-Keogh had made mention of her relationship with international funders, saying that “as a result I know the international donor environment very well and have established good relationships with donors, which may continue to be important to both the Office of the Public Protector and government”.  This line made him very worried, because if she was appointed and continued with these friendships with international donors, who then funded the OPP, how would she handle pressure from these donors if they were to develop an interest in South African politics? He asked this because anyone who gave something could have conditions attached.

The Chairperson said the Committee had decided, when short-listing candidates, that there should be a strong representation of women. She was glad that this decision had been taken. As she had said, one of the reasons Members had wanted Ms Ramjathan-Keogh to be shortlisted was because of her international experience. Member may not agree with her views, but she could articulate them and had made them clear. That should be appreciated.

Candidate 10

Adv Nonkosi Princess Cetywayo

The Chairperson said that as Adv Cetywayo responded, she would like to know what informed her proposed breakdown of the OPP’s budget.

Prof Msimang said he wanted to bring it to the attention of Adv Cetywayo that cases were initiated by the public. As she had given a quota for the indigent people of South Africa, what would happen to the cases brought to the OPP through the other members of the public?

Mr Swart said he had had engagements with Adv Cetywayo when she was the director of the Office of Institutions Supporting Democracy (OISD). He believed she had been there from 2010 to 2014, but as she would know, from the perspective of the Portfolio Committee on Justice and Correctional Services the OPP and the South African Human Rights Commission (SAHRC) often complained that Parliament did not assist them with fulfilling their obligations. This, of course, had been before the Nkandla judgment, which had held that the remedial actions prescribed by the Public Protector were binding. Had she still been in the OISD, he was sure she would not have been happy with the way the Public Protector had been treated by the committees of Parliament. Did she think that the OISD could do a greater job in assisting the Public Protector and should she be appointed, what would she do to enhance relations with the OSID? Secondly, although Adv Cetywayo was an admitted advocate, he was not sure whether she had ever practiced. Further, was she still aligned with the African National Congress? As this was an important issue, it should be addressed.

Mr Shivambu said Adv Cetywayo had identified low economic growth and insufficient revenue intake as the key challenges to South Africa,. From there she had built a case that all the other problems were due to low economic growth. He would like an explanation, because even when there was a bit of economic growth, there were a lot of challenges. Was it correct to reduce everything to low economic growth, and were there not other problems? The Minister of Finance always indicated that resources were available, but they were not being used properly by state institutions -- could she comment? On her proposed budget breakdown, the OPP was an institution which was given money through the appropriations, some of which was required to be dedicated to operations, advocacy and expansion programmes. However, her breakdown did not consider all the other necessary budgetary items, and how she would deal with expansion, because ultimately the OPP needed a wider reach to all areas. What would she do practically to ensure that people in rural areas had access to the OPP on a constant basis, without having to travel long distances? Lastly, he asked if Adv Cetywayo was still a member of the ANC, because she had worked in the Office of the Speaker of the National Assembly, and often people who worked there were deployed.  Was she still a member of the ANC and would she not pursue the ANC’s narrow agenda?

Mr Koornhof said looking at Adv Cetywayo employment record, she had held many positions, including being appointed as an advisor in Parliament, the executive and departments. However, it appeared that she had never practiced law. The independence of the PP in decision making was an important feature of the Office -- would she be able to rise to the occasion and be independent?

Mr Shivambu said he did not understand what an inactive member was. He wanted to know if she was a member of the ANC.

The Chairperson said the question should not be asked as if being a member of the ANC was a crime. She encouraged Adv Cetywayo to answer the question in the way she understood it.

Adv Breytenbach asked Adv Cetywayo when she had been admitted as an advocate, and of which bar she was a member. She had had an impressive array of jobs in a relatively short period of time -- why did she change her job so often? In her motivation, she had stated that she believed that the OPP may be bloated, acknowledged that government could not afford to fully fund the office, that sometimes the OPP’s investigations were not fruitful and that many complainants were chance-takers, and that there was a lot of unnecessary overlap. This suggested that the Public Protector’s investigations should be limited to service delivery issues and that the PP should direct her attention away from high level matters which were being investigated by others. The impression she gained from this was that she would take the focus away from senior office bearers, such as the President, and focus more on municipal service delivery issues, which she found somewhat concerning.

Mr Bongo said he would like to know about Adv Cetywayo’s fitness and propriety to hold office, given that Corruption Watch was concerned that she had never practiced law. Further, he asked for comment on AfriForum’s objection to her appointment, due to her membership of the ANC. Membership of the ANC had nothing to do with the present matter and it was a narrow narrative to try to say that membership of the ANC disqualified a candidate, as the Committee was concerned with the requirements of the Public Protector Act and the Constitution, rather than party politics.

Mr Horn said Adv Cetywayo had listed commitment to the supremacy of the Constitution as one of the key attributes a PP must have. As part of that came the rule of law, and while it was definitely not a crime to be a member of the ANC, to be a member of a political party may impede the perception of the public and create the perception that she would find difficulty in practice. It was fine to state one’s commitment to impartiality here, but would she not agree that it would be better for her not to be a member of a political party at all? Secondly, she had largely been a civil servant dealing with the administration of justice to an extent, but what experience did she have which would serve her in the investigative role the PP primarily served?  He was satisfied that she understood the law and would be capable of administering the office, but he had a question mark about her ability to be the head of an office which had the core function of investigation. 

Ms Van Damme said Adv Cetywayo had been the head of OISD in the National Assembly between 2010 and 2014, which was during the term of the current Public Protector and around the time the “Secure in Comfort” report had been published. She assumed that the OISD gave support to Chapter Nine Institutions (CNIs) and legal advice to Parliament on issues related to CNIs. Had a situation ever arisen where she had been required to give her legal opinion on “Secure in Comfort,” and what had it been at the time? There was now a court judgment indicating that the remedial action of the PP was binding, but what had been her opinion in 2014? Further, what support, as the OISD, had she provided to the PP when the attacks on her had started? In her questionnaire, Adv Cetywayo stated that as the OPP had wide constitutional powers it should be mindful when approaching investigations and should focus on cases which involved ordinary people, their lives and their living conditions. What did this mean? Should the OPP limit their investigations to service delivery and not investigate anything else?

Mr Masondo asked for a brief outline of how Adv Cetywayo’s academic record and skills would assist in enhancing the OPP, taking into account her experience. Secondly, there was a perception that there had been a point where the relationship between government and the OPP had been antagonistic. In her opinion, what should the balance be, and what should the relationship be between the OPP and the various spheres of government?

The Chairperson said Adv Thuli Madonsela had had an association with the African National Congress when she was appointed. However, when she became the PP one saw her moral compass taking centre stage.

Mr Shivambu rose on a point of order, saying that the Chairperson was trying to assist the candidate by asking leading questions. The Chairperson was trying to give Adv Cetywayo some sense of this matter, because she had fumbled when asked about her membership of the ANC. She was giving Adv Cetywayo an unfair advantage, as she had not asked any other candidate such a leading question, saying that Adv Thuli Madonsela was in the same position, so that this could be parroted.

The Chairperson said she would rephrase her question, which was around the moral compass of the person who was to become the PP and the independence of that Office. She wanted Adv Cetywayo to give the Committee her views on the importance of one’s moral compass as regards this position. Secondly, there was a reality which would confront Adv Cetywayo, which was to balance the high profile cases with the cases of ordinary citizens. Contrary to some of the views out there, she believed that high profile cases mattered, because when one was a leader one was setting the example for society at large. She wanted to understand how Adv Cetywayo would balance high profile cases with ordinary cases. 

Ms Van Damme said the “Secure in Comfort” report was in the public domain. Did Adv Cetywayo not think that due to this, and as it was a highly controversial document involving the President, that she should have advised the Speaker that it was an issue which Parliament should have oversight over? Would it not have been better legal advice to try and secure a copy of the document and proceed, given that the document was public and Parliament was under a constitutional obligation to deal with it? It was not enough to say that the CEO of the OPP did not direct a copy to the Speakers Office, and then deem it “hands off.” Parliament had a constitutional obligation to deal with such matters, and that should that not have been the advice.

Candidate 11

Adv Kevin Sifiso Malunga

Ms Mothapo said in Adv Malunga’s questionnaire, there had been a question relating to his previous place of employment where he had marked “yes,” but the facts presented differed from what had been written in the Business Day about him being dismissed during his probationary period. The position of PP required honesty and reliability, so by not fully disclosing these facts this could be regarded by the Committee as not being very honest. 

Mr Bongo said some of his questions arose from public comment and information from other stakeholders. He asked Adv Malunga to share his conception of the independence of the PP, because they were expected to act without fear, favour or prejudice. Members had had views in the past on the binding nature of remedial action, but Adv Malunga had been only luke warm about where the organisation was going. The questionnaire had required Adv Malunga to inform the Committee of any of his circumstances, financial or otherwise, and he would like an explanation of his involvement in Mbube Consulting CC. There had been a general concern about his movement, having been born in Zimbabwe, studied in Swaziland and America, which would be good to expand upon. Further, there was a matter which had been withdrawn in court, with Adv Malunga having been charged with driving under the influence of alcohol in 2012, but this had not been disclosed to the Committee. The Public Protector Act required the office bearer to be fit and proper, which encompassed being honest and disclosing all material facts.

Adv Breytenbach said Adv Malunga had chosen not to disclose the circumstances under which he had left the University of Witwatersrand, and she asked for an explanation of why he had not done so in the interests of full disclosure. She noted that he had been a candidate for a Doctor of Juridical Science for quite some time, and did not seem any closer to completion -- why was it taking so long? He had made some contentious comments on opposition parties dashing to the courts, saying “it shows the weak state of South African politics, why else would they constantly abuse what is a critical branch of the government to settle political scores.” She asked if he still held that view and whether he had held the same view when the opposition had dashed to the courts on the Nkandla matter.  Lastly, in the motivational section of his questionnaire, he seemed to be suggesting that the Public Protector was not the pin around which the OPP revolved, and appeared to be a “bit miffed” that she received more attention than others. If that was not so, then the meaning of the emphasis in the paragraph containing “WE have been able to create one of the most trusted and credible…” and “the Public Protector is NOT the product of one person,” needed to be clarified. He also seemed to suggest that only he could be the next PP to ensure continuity, but clearly if he remained as Deputy Public Protector, he would be there to ensure continuity. Was he suggesting that he would not support a new appointment?

Ms Tseke said a complaint had been filed against Adv Malunga by the South African Roadies Association regarding section 13 of the Constitution -- could he comment? During his tenure as the Deputy Public Protector, many regional offices had been closed, which she regarded as being close to rural communities. She understood that the OPP faced a lot of financial constraints, but these poor disadvantaged people had at least been able to access the OPP’s services. How would Adv Malunga respond to that situation? If he were to be appointed as PP, how would he respond to an allegation of financial impropriety against a Member of the national legislative arm of government?

Ms Van Damme said in May 2012 to October 2012, Adv Malunga had worked for the then Minister of Justice, Jeff Radebe, and one of his tasks had been the Traditional Courts Bill. She asked how involved he had been in the drafting of that Bill. In 2012, the Bill had been tabled in the NCOP and was a Bill which was hugely at odds with the Constitution. How could he be trusted to be the PP if he was willing to oversee the introduction of legislation into Parliament which was at odds with the Constitution?

The Chairperson asked Adv Malunga for the chronological sequencing of his life, as presented in his CV, as she was trying to reconcile that with information which the Committee had subsequently received. In 1998, Adv Malunga had completed his Bachelor of Law at the University of Swaziland, and then in 2000 he had done his LLB at the University of KwaZulu-Natal (UKZN) -- which campus did he graduate from? Had he had been a full time student in South Africa from 2000? She clarified that he had finished at the University of Swaziland in 1998, and in 1999 Adv Malunga had come to Pietermaritzburg where he had done his LLB. Then in 2001, he had gone to the Georgetown University Law School in the United States. The Chairperson asked whether he was still in the United States in 2002. She said she was trying to reconcile this chronology with information received from the State Security Agency, which advised the Committee that Adv Malunga had been born in Zimbabwe and had entered the Republic in February 2005. Further, that he was naturalised in November 2010. She asked for this to be clarified, as well as whether he had dual citizenship, or whether he had renounced his Zimbabwean citizenship. This would have serious implications and it was important that he answer the question as honestly as possible.

Ms Van Damme said the State Security Agency (SSA) had indicated that Adv Malunga was unsuitable, because he qualified only for confidential, and not top secret, clearance. What legislation required the Public Protector to have this clearance, as she wanted to know what basis the SSA was acting on?.

The Chairperson said part of the reason why the Committee was probing Adv Malunga was because the Constitution specifically required the Public Protector to be a South African citizen. As far as the specific issues raised by the SSA were concerned, at the present stage she did not have the answer. Part of the reason why she wanted Adv Malunga on record on these matters was to enable the Committee to get clarity going forward. Adv Malunga had been short-listed on the strength of him being the current Deputy Public Protector, and this information had come up long after that decision had been taken.

Mr Bongo said the reason why the Committee had allowed Adv Malunga to be interviewed was for it to test the information against his statement. Later, during the deliberations, the Committee would adopt a position. However, his questions had not been answered. He repeated that he wanted to know about the reason for the non-disclosure of the driving under the influence charge in 2012, and the specific circumstances around his dismissal from the University of Witwatersrand, because the intention was to test whether he was fit and proper.

Adv Breytenbach said she had also asked a specific question around his dismissal from the University of Witwatersrand.

Mr Shivambu said he was not much concerned about the goings on at Wits University, because most of these liberal white institutions had an institutional culture which was resistant to black progress. Whether it was students or academics, there was a culture of purging black people who seemed to be making progress. He felt the Committee was skirting around the issues with Adv Malunga, and said that a letter had been circulated on the day of the interview from the SSA, indicating that he was not suitable to occupy the office of the Public Protector. He had not been given the opportunity to deal with this substantially, and it had already been established that some of the issues mentioned in the letter from the SSA were not necessarily factual. It was not the Committee’s responsibly to dispute a security clearance process. This was why he had initially suggested not interviewing Adv Malunga, because there was an SSA letter which was extremely prejudicial. It disadvantaged him altogether from being properly considered, as the letter had been circulated without giving him a fair hearing. What it contained could be challenged in court. Either the SSA was irresponsible, or those who had circulated the letter were extremely irresponsible. If there were set criteria on who was to be interviewed by the Committee, the security clearance should have been done for all candidates and then the short-listing could go ahead, potentially with notices of security flags. The letter indicated that Adv Malunga had received confidential clearance, but “some of the matters the Public Protector deals with require top secret clearance.” This meant that the Committee did not even know the reasons being given for his unsuitability. Even if Members asked him questions about continuity at the OPP, he was extremely prejudiced.

The only issue he had was the differences between the incumbent Public Protector and Deputy Public Protector, because one must never undermine the organisational harmony of an institution as important as a CNI. Once a Public Protector and Deputy Public Protector were disagreeing in public, it weakened the faith people have in the institution. In the past, Adv Malunga had had such differences and he wanted to know what the context was of these differences. Further, why had he chosen to disagree with the Public Protector in public? Where was the wisdom in that, when he knew that it opened up space for the “wrong elements” that had characterised the OPP has reactionary, CIA agents, counter-revolutionary, counter-transformation and all kinds of things? However, he had been extremely prejudiced and perhaps he should resort to another process to clear his name, whereupon a further engagement could take place.

Mr Swart he had similar concerns, because going back to Adv Malunga’s interview for the Deputy Public Protector position, none of these issues had been raised then, and surely the screening had been just as relevant, as he would have had to have had the same screening? It was very strange to him that suddenly, on 4 August 2016, the Committee had received a letter stating that he was not suitable. It was a major concern, as Adv Malunga had already acted as PP 30 times and now at the last moment there was a concern about his security clearance, which did not seem right to him. The second page of the SSA letter indicated that the candidate had to complete a form to conduct the necessary vetting. Perhaps Adv Malunga could indicate whether he had done any security clearances. Further, why had the SSA not raised the issue with the candidate at the point where he was being interviewed for the post of Deputy Public Protector, because what would have happened had the PP resigned and he had had to act as the PP as an interim measure. In the interest of fairness and justice towards Adv Malunga, how could the Committee expect him to respond to these concerns at this late stage?

The Chairperson said there would be a process. The Committee needed answers from the SSA, because these matters had wide implications.

Mr Mncwabe cautioned Members not to discuss the security clearance matter to the point where it may prejudice Adv Malunga’s right to take the matter further, as he had every right to pursue it. The Committee could continue with its job and perhaps towards the end of the process an SSA representative could clarify remaining concerns. Looking at Adv Malunga’s CV, he had done a lot in a short period, but he was concerned with his legal practice experience. He had been admitted as an advocate, but it was not indicated whether he had served pupillage, under which advocate and of which bar he was a member. It is not clear whether he had practiced as an attorney or served articles of clerkship. Listening to Adv Malunga, he spoke like a pure academic and he asked for clarity on his legal practice.

Mr Koornhof said the SSA letter indicated that the post required a security clearance to the level top secret. However, that was not in the Act and he would like to know where this requirement came from. Adv Malunga had indicated that the OPP received about 20 000 complaints a year, but he wanted to know how many were outstanding and the reasons for this.

Ms Van Damme said Mr Koornhof had asked the same question she had, and asked for the legal advisors to give an answer.

The Chairperson said that she had already indicated that this matter would require a follow up with the legal advisors. It would have to come before the Committee at its next meeting. She did not have the answers before coming to the meeting, because she had not known what to do with the information.

Dr Maesela said Adv Malunga had indicated that service delivery complaints manifested themselves either as defective delivery, or no delivery at all. This challenge recurred in all spheres of government and these ultimately showed through instability, such as service delivery protests and destruction of property. Why had the OPP not investigated the service delivery flashpoints before they burnt? It would have been very useful of the OPP to investigate the omission on behalf of the National Student Financial Aid Scheme before it resulted in country-wide student protests. Remedial action could have assisted poor students following such investigations, given that education was one of the current priorities of government. Instead of the PP being turned into a tool of crime busting, it could have been a useful tool of service delivery investigation. Were Adv Malunga appointed, what would he prioritise?

The Chairperson again noted her concern with the chronological sequencing of most of the information provided by Adv Malunga. Wits University, be it liberal or whatever, had terminated Adv Malunga’s employment during the probationary period. In her experience, such a termination was due to an inability to verify qualifications, or there was something which was of material importance in the records they had provided to the institution. It usually had nothing to do with performance, because during that period the person was still adjusting. She asked for Adv Malunga to respond, seeing as this has been done with other candidates. It was very important for the Committee to establish those facts, seeing as Adv Malunga, in his own admission, ought to have expanded more.

The Chairperson asked whether Adv Malunga had received his identity document back, because she had not been able to authenticate documents. Perhaps the intention had been to make copies for Members. She wanted Members to understand that she did not do things on the side. If Adv Malunga’s intention had been to table his identity document, he should not have handed it to her, but should rather have indicated that to the Committee.

Mr Shivambu said the way the Chairperson was addressing Adv Malunga was extremely problematic. He suspected she was the one who had deliberately circulated the letter to prejudice him. What was wrong with someone producing their identity document, when people were doubting their citizenship?

The Chairperson said Mr Shivambu had suggested not interviewing Adv Malunga, but she had objected, saying that the Committee could not prejudice him in that fashion. The reason why she wanted to ensure he had got his identity document back was because he had handed it to her at the beginning of the meeting and she had not known what to do with it. She could not be left in possession of someone else’s documents.

Mr Shivambu said the Chairperson must be cool-headed and not shout. The Chairperson had made the blunder of circulating the letter which had been given to her.

The Chairperson replied that it had not been given to her, but to Mr Vhonani Ramaano, Secretary to the Committee.

Mr Shivambu said there could not be a document circulated in the Committee without the Chairperson’s knowledge.

The Chairperson said Adv Breytenbach had made it clear at the last meeting that documents intended for the Committee must reach the Members, and she did not have the right to withhold selected documents.

Mr Shivambu said then that the Chairperson did not know how to be a Chairperson.

The Chairperson said Mr Shivambu was entitled to his opinion.

Mr Shivambu said he would have to write to the Speaker to have her removed, because she had taken reckless decisions that had corrupted the whole process.

The Chairperson said she had exercised her discretion, because she felt it important for Members to have all documents which reached her.

Mr Swart asked what the status of the SSA letter was.

The Chairperson said that the letter had not been addressed to the Chairperson of the Committee, but to the Acting Manager, Protection Services, Parliament of South Africa. She had not known the status of this document and before it was circulated , and had asked Mr Ramaano what the letter was, because she did not understand it. He had indicated that it was part of the information the Committee had received. The letter was written not only about Adv Malunga, but about all the candidates who had applied, as part of the vetting process. She asked Mr Ramaano to take the floor.

Mr Shivambu intervened, saying the Chairperson was supposed to take responsibility for each document circulated in the Committee and this was the first time he had heard of a Committee secretary addressing letters which were distributed in the Committee.

The Chairperson said the Committee had agreed that there must be a screening of qualifications and everything else. It had then requested Parliament to run with that process, and it had been done. This information had then come through those channels, and the Committee had requested it. It was not information for the Chairperson. She wanted to close the matter, because she did not want to be accused of anything. She had no sinister motives -- every single piece of information which had come before her had been shared with Members. Further, the letter was not just about Adv Malunga, as it dealt with every candidate. She then released Adv Malunga, and indicated that the Committee would contact him.

Mr Mncwabe urged Members not to debate the SSA letter in front of the candidates. He did not hold it as binding, and should not be debated as though it would invalidate the Committee’s work.

The Chairperson said she had to make matters clear, because she was accused of leaking the letter deliberately. Members have been quoting the letter since the morning. She assured them that she had distributed the letter in good faith. 

Candidate 12

Mr Willam Andrew Hofmeyr

Mr Koornhof said that the comments of Corruption Watch praised him for his leadership within the Asset Forfeiture Unit (AFU), but they had come back with a sting in the tail, saying that media reports had alleged that Mr Hofmeyr had played a central role in the dropping of corruption charges against President Zuma. He did not require comment, but gave him the opportunity. Given Mr Hofmeyr’s history and entrance into Parliament, people might argue that he would not be independent, so he asked for his views on the importance of the PP’s independence.

Mr Shivambu said that as Mr Hofmeyr had handled the Shabir Shaik case, he wanted to know what had informed the decision to charge Mr Shaik only with corruption, when the person with whom he was committing the corruption was Jacob Zuma. Why had they not both been charged?

Mr Bongo rose on a point of order, saying the question was not relevant and was sub judice. It constituted an extremely unfair question for the candidate to answer.

The Chairperson said she had noticed that all the Members of the Committee were being inconsistent. A process had been agreed upon, allowing all questions, but when certain questions became sensitive, they wanted to stop them. This made it very difficult to chair the proceedings.

Mr Bongo interjected that he was raising a matter of law, not just a general concern.

The Chairperson replied that she heard him, but she wanted Mr Shivambu to finish his question. The challenge which Mr Bongo could face was whether the question had to do with Mr Hofmeyr’s own application of the concept of fairness in the law. She urged Members to be tolerant.

Mr Shivambu continued asking what the legal sense had been in successfully prosecuting Shabir Shaik and not similarly charging Mr Zuma, “the president of the ANC”. In the process of again dropping the more than 700 charges of fraud, corruption, racketeering and money laundering, Mr Hofmeyr had been part of the decision that the charges must not be continued. Now this had been lost by the National Prosecuting Authority (NPA), and the charges would have to be reinstated after it loses in the Constitutional Court. How could Mr Hofmeyr be trusted as not simply being some extension of the person who he has avoided charging for so long? Was he not trying to come to the OPP to continue with the protection of a possibly corrupt individual, who steals public money to enrich himself and his family? How could Mr Hofmeyr be trusted to be the Public Protector, when he had a history of protecting an individual. Further, how would he deal with the accessibility of the OPP in the rural areas of South Africa, given that in many far flung areas there were no Public Protector offices? The incumbent PP had already been discussing the issue of the funding model of the OPP, on the basis that the appropriations process did not allocate sufficient money to reach everyone and deal with all the cases brought forward.

Mr Swart said Mr Hofmeyr has been exceptional at the AFU and NPA. What had made him want to leave the NPA when he had been doing such an incredibly good job? While he may be eminently suitable to be the Public Protector, would this be the best place to utilise his abilities? He noted that Mr Hofmeyr was doing very well at the Special Investigating Unit, and had been moved. Then he had been at the AFU and had been moved to now be head of legal civil claims in the NPA. Was there a sense of frustration in the NPA? In his questionnaire, there had been many instances cited where he had stood up to his political comrades on certain issues, such as when Adv Vusi Pikoli had been suspended. He referred particularly to standing up to the then Deputy Public Prosecutor about his decision to withdraw the freezing order relating to R100 million worth of assets belonging to Mr Fana Hlongwane, relating to the arms deal. What was his response to the Commission of Enquiry which had found that there was no corruption? Given Mr Hofmeyr’s experience in Parliament, what was his view of the relationship between the PP and Parliament, especially regarding the independence of the OPP and its accountability. Further, what had been his view on the binding nature of the remedial action of the PP, before the Constitutional Court decision?

Mr Masondo referred to the way in which controversial issues were always in the media around the NPA and related institutions. Hardly a week passed without this happening and it would be noted that Mr Hofmeyr had experience in dealing with the media. There was a persistent problem of matters around the NPA continuously being in newspapers. It did a lot of damage to communities, when the in-fighting in the NPA was constantly in the media and public eye, with no resolution. He asked for Mr Hofmeyr’s comment.

The Chairperson said this question centered on institutional harmony and managing reputational risk.  

Adv Breytenbach said Mr Hofmeyr now held the position of head of legal affairs in the NPA, but she did not know what this was and asked for a brief explanation of what he did. As head of legal affairs, did he have any role in advising the current National Director of Public Prosecutions regarding appealing the “spy tapes” judgment, and what that advice was? In the “spy tapes” matter, Mr Hofmeyr had deposed an affidavit which supported the dropping of charges against Mr Zuma. This had been set aside by the courts, but it was generally known that Mr Hofmeyr supported the dropping of the charges. He was one of the few to take that stance in the matter, and it had been contradictory to that of the prosecution team. She asked for an explanation of this stance.

Mr Bongo said he knew Mr Hofmeyr was a man of integrity, and he had contributed immensely towards building this democracy. He wanted Mr Hofmeyr to share his view on him being fit and proper for the position, in light of his statement in the media that he knew he was not going to be short-listed, and that when he had been short-listed, that knew he would not be appointed. This centered around Mr Hofmeyr being fit and proper, as well as respect for the process.

The Chairperson said she shared Mr Bongo’s concerns, because it was worrying that Mr Hofmeyr had doubted and cast aspersions upon the process. It would be important for Mr Hofmeyr to place the proper perspective on record.

Mr Swart reminded Mr Hofmeyr about the questions around the seizure of R100 million worth of assets from Mr Hlongowane, and his opposition to the National Director of Public Prosecutions, as well as his resultant views of the arms deal commission, which had recently produced its report.

Adv Breytenbach indicated that she had not had a specific response about what the Head of Legal Affairs at the NPA did, and whether in this capacity Mr Hofmeyr advised the present National Director of Public Prosecutions in the “spy tapes” matter. If so, what was that advice? Further, as Mr Hofmeyr was one of the few people who supported the dropping of charges against Mr Zuma, why were the views of the prosecution team not given more weight?

Mr Shivambu said there was an important issue which Mr Hofmeyr must speak to, regarding the relationship between the Special Investigating Unit (SIU) and the Public Protector -- specifically, what he envisaged the investigatory relationship should be between the PP and the SIU. This was particularly relevant, as the PP and the SIU had conducted parallel investigations, and while the SIU had found more than R100 million in undue payments, the court processes relating to “Secure in Comfort” had concluded at R7.8 million. What could an integrated investigative action have looked like, so that the institutions were not so far apart regarding the numbers? There had been a request for Parliament to follow up on the decision of the Constitutional Court, as the President had failed to uphold, defend and respect the Constitution as the supreme law of the land. Specifically, there should be some form of consequence. As Mr Hofmeyr had assisted in drafting the Constitution, why had the instance where a President had broken the law -- but it did not amount to a criminal offence – not been catered for? There was no provision dealing with the violation of the Constitution. What was to be done now that there is a Constitutional Court ruling holding that the President had violated the Constitution, and what should Parliament do?

Ms Van Damme said she had questions about the debacle with Mr Andrew Phillips, whose lawyers had submitted a letter to the Committee objecting to Mr Hofmeyr’s nomination. It stated that Mr Hofmeyr in 2000 had overseen a commando-style raid on his two businesses: the Ranch and the Twister. He further alleged that this had been done with ulterior motives. He had been acquitted and the judge had found that he had been singled out for his assets, and not his alleged crimes. What had been the outcome of that matter, what had it cost the AFU, did Mr Phillips’ assets have to be handed back and did Mr Hofmeyr feel he had handled that matter with integrity?

Mr Horn said Mr Hofmeyr had not answered on whether he advised on pursuing the appeal in the “spy tapes” matter, and asked whether the original prosecution team of Mr Downing had been consulted.

Ms Mothapo said it appeared from Mr Hofmeyr’s CV that his interpersonal interactions with his senior colleagues at the NPA were a bit questionable. Could he tell the Committee his intentions, should he be appointed, towards improving his interpersonal skills? He also had a history of flouting procurement rules. In 2010, at the NPA, he had received a verbal warning because he had authorised an amount of R20 000, contrary to procurement rules. A similar incident had occurred while he was acting head of the SIU. Could the reasons behind these issues be explained? She thanked Mr Hofmeyr for his dedication and integrity in service.

Mr Swart said the Committee had received information about Mr Hofmeyr’s current utilisation at the NPA. It was deeply disturbing to him, and this needed to be taken up in the appropriate Portfolio Committee. In light of the fiscal constraints being faced, having someone of Mr Hofmeyr’s experience working three hours a day was scandalous.

The Chairperson said that on the point raised by Mr Swart, Members needed at some point to start to address some of the weaknesses which the Committee was observing, particularly as despite the ruptures now and again, there was a lot of goodwill amongst them. She was also concerned that someone with such investigative expertise was being so heavily under-utilised, especially as government’s capacity in that area was very weak.

Candidate 13

Ms Muvhango Antoinette Lukhaimane

Ms Tseke commended Ms Lukhaimane for managing to wipe out the historical backlog of complaints since she had occupied the office of Pension Funds Adjudicator – a sentiment with which Corruption Watch would agree. She asked what kind of innovations she would bring to the OPP towards ensuring the rural and previously disadvantaged communities had access the services of the Public Protector. She raised this, as most of the regional offices of the Public Protector had closed, making it difficult for rural people to access its services.

Dr Maesela asked for Ms Lukhaimane to unbundle the situation characterised by the country not being cohesive, and whenever there was a problem with the government or service delivery lapses, people thought it was corruption, rather than a lack of skills, resources or simply not knowing what to do. Was this the case, or was something else happening?  Were Ms Lukhaimane to be appointed, would she also always say that she was going to fight corruption, or would she come up with something else to get South Africa out of this quandary?

Ms Mothapo said in Ms Lukhaimane’s questionnaire, under the section on motivation, it was demonstrated that she possessed a mix of legal, management and financial qualifications which were very important for the Public Protector. How did she intend to apply these skills, should she be appointed? In her present position, she had been faced with a seven-year backlog and, together with her team, within six months that had been reduced. She was aware that there was a serious backlog of cases at the OPP -- how would she intend applying the same modus operandi to this Office? Ms Lukhaimane’s research skills were also very vital. She wanted to know if she had any investigative skills, because these were the most important for the position of Public Protector.

Mr Bongo spoke to Ms Lukhaimane’s fitness and propriety to hold the position, as required by the Act. In Ms Lukhaimane’s questionnaire, there was a section for declarations of having been found guilty of unprofessional or disgraceful conduct, to which she responded “no,” so he wanted her to comment on the case of assault where she had been found not guilty in 2009, and what this non-disclosure indicated about her being fit and proper. Lastly, he asked her to explain the case where she had been found guilty of selling liquor from unlicensed premises. 

The Chairperson said she saw that Ms Lukhaimane’s main areas of operation were largely around the SSA and the pension funds space. The information which Mr Bongo was asking her about emanated from the SSA. They had said that she had been found guilty of selling liquor without a licence. The SSA space was something she would like to understand better. The position she held at the SSA was a senior one, being the advisor to the Director General. Perhaps she could shed some light on what expertise she had acquired from the SSA, which she could bring to the OPP. Secondly, on how to balance high profile cases against the cases of ordinary people, she said there were billions of Rands of unclaimed retirement benefits. This money was not from people who were well to do, but was largely from rural people, and much of this money was sitting with the Government Employees’ Pension Fund. Did Ms Lukhaimane not think this was a rights issue as well? This money belonged to those people -- it had been deducted from their families’ salaries monthly. She asked Ms Lukhaimane to speak to the contestation between high profile cases and ordinary cases, in the context of unclaimed benefits.

Mr Shivambu said he saw Ms Lukhaimane was born in Mankweng, and asked if she grew up there. He said that in 1982, she was still 10 years old, but he wanted to ask about her political activities, because there had been a lot of political activity in Mankweng from the mid-1980s. He was interested in her political affiliation, past and present, as well as her view of current politics. Further, he did not clearly understand how she would increase the accessibility of the OPP, because it seemed as though she was still brainstorming, speaking about things such as contacting headmen. If she were to be appointed, she would take office from 1 September 2016, meaning she would have to come before the Portfolio Committee on Justice and Correctional Services to concretely propose what she was going to do. He wanted to hear a concrete plan, because this had financial implications.

The Chairperson interrupted, saying Ms Lukhaimane’s idea about headmen was probably a good one.

Mr Shivambu said he wanted a clearer idea because the way she had posed it, it was as a tentative idea more than a concrete plan. On the funding model, there was a major challenge, and there were beginning to be ideas about a funding model for the OPP outside of the Parliamentary appropriation. What did she think should be the funding model of the OPP, and what other factors ought to be considered? Further, did she support the centralised procurement system which was being introduced by National Treasury as a way of combating tender corruption, with the Chief Procurement Officer responsible for much of government’s procurement centrally? On the “Secure in Comfort” report by the incumbent Public Protector, did she think the President of the ANC had been wrong when he had been cautioned that expenses at Nkandla had reached R40 million, and that there was something going wrong. He had not stopped this, and the expenditure had reached close to R250 million. Was he in the wrong to do that? Lastly, if the Constitution were appropriately amended to allow the state to expropriate land without compensation to give to the people for various purposes, would she support such an amendment? Ms Lukhaimane would know that where she came from, there were many small scale farmers, yet most of the commercial, large scale farms were owned by the white minority.

The Chairperson said it would be interesting if in her response, Ms Lukhaimane could indicate whether the ruling was against the president of the ANC, the individual being referred to, or the President of the country. Mr Shivambu tended to draw that distinction, but a multi-party committee hosted a variety of opinions and Ms Lukhaimane should not take offence.

Candidate 14

Prof. Bongani Majola

Mr Mncwabe asked what, in Prof Majola’s view, were the current problems facing the OPP and if he were to be appointed, what his strategies would be to resolve these. Secondly, according to his CV his last employment was in December 2015 -- did this mean he was currently unemployed?

Mr Swart said Prof Majola’s CV was very impressive, and asked for his understanding of the Public Protector’s independence. What had been his thoughts before the Constitutional Court judgment which had found that the remedial action of the PP was binding? How would he deal with the funding problems at the OPP, given that following the judgment there would be a number of review applications brought by Departments with deep pockets? Lastly, in his experience at the United Nations, had he had any interactions with parliaments? How did he see the relationship between the OPP, which was an independent CNI, but which depended on Parliament for funds and accounted to Parliament.

Mr Koornhof said he saw that Prof Majola was a former member of the Johannesburg bar, and asked for an indication of whether he had practiced while a member and if so, for how long? During his employment with the United Nations, where had he been based? Was he out of South Africa between 2003 and 2015?

Dr Maesela said Prof Majola was a man with experience of the world and had seen the injustices visited on the poor, underprivileged or underdeveloped people, depending on who was talking. How did his experiences resonate with what he wanted to do here in South Africa? Did South Africa still have underprivileged people and if so, how did he intend to serve these people as a protector of the public? Was this protection against the government, or against poverty? Why would he try to do something which was not possible and which would be like a drop in the ocean?

Mr Bongo said Prof Majola had been nominated for the position of Public Protector in 2002, but he had declined the nomination. What made him now feel he ought to accept the nomination? Secondly, the United Nations International Criminal Tribunal for Rwanda was widely perceived in South Africa as being the type of tribunal which was meant only to sabotage the leaders in Africa, and bring a stereotype from the west. He asked for Prof Majola’s comment and also to share a view on the Omar al Bashir debacle. He was interested to know whether he had been employed full time by the Tribunal and if so, whether he would leave that for the present position?

Mr Shivambu said that before Prof Majola had taken up employment with the United Nations, he had been an administration clerk between 1971 and 1974, a prosecutor between 1975 and 1977, and thereafter a district court magistrate from 1977 to 1979.  He had then been a magistrate from 1979 to 1982, and a lecturer between 1982 and 1998. It seemed as though Prof Majola had been working for the state, and that state was the apartheid state. So he had been responsible for prosecuting “our people” on behalf of the apartheid state. He had a legal qualification, and had not been an advocate working to defend people who were being arrested wrongly, for “sick laws and crimes which were based on their racial identity”. So throughout, Prof Majola had worked for the apartheid state and when the time had come to serve South Africa he had left for the United Nations. Now he was comings forward to be appointed as Public Protector -- but why should South Africa trust someone who had worked on the side of the apartheid state for so many years, and possibly even taught apartheid laws at university. He wanted to know how to the Committee would explain to South Africa that it was going to appoint someone who had been on the side of the apartheid state for so long. How would Prof Majola ensure that rural people have access to the OPP? At present there were fewer than 20 OPP offices, but how would this be expanded and where would the funding come from? The incumbent PP was already starting to contemplate alternative funding options. What would Prof Majola’s concrete ideas be on funding options towards ensuring full accessibility? He asked for Prof Majola’s opinion on the central procurement system which National Treasury was proposing through the Office of the Chief Procurement Officer, and whether this was a necessary intervention. Lastly, he asked for Prof Majola’s opinion on a sitting President violating the Constitution by defying the remedial action of the Public Protector.

The Chairperson said one of the reasons why Prof Majola had been short-listed was because he had international experience. The theme of justice versus regional harmonisation continued to come up, along with African geo-political dynamics. She wanted to know if he had applied his mind to this. It was correct that South Africa was a signatory to the Rome Statute, but it was equally in the position of not wanting to be perceived as the big brother on the continent. With the context of all the xenophobic incidents which South Africa has had in mind, it was not only about justice. South Africa also should not be seen to be in a position similar to that of the United States, on a comparable stage. She asked for Prof Majola’s perspective, because these issues were important. She respected the role he had played in Rwanda, and that it had been a very necessary one. Further, notwithstanding the other questions he had been asked, she believed that serving in a tribunal like that, dealing with such gruesome atrocities, was good for the country and social cohesion. Lastly, she wanted him to comment on balancing high profile cases against the cases of ordinary situations. She supported focusing on high profile cases as Public Protector, because leaders defined the moral value system of a given country to a large extent. She said not all Members viewed people who lectured at universities like the University of Zululand or Boputhatswana as being synonymous with being “sell-outs”, because of the evidence of many good, progressive lawyers who came from those institutions.

Concluding comments

The Chairperson said she was unsure of the process going forward. Should Members be sent something recommending dates, were they in the position to decide when to meet, or were they leaving it to the Chairperson?

Mr Swart said that was acceptable.

The Chairperson said she had to acknowledge that this process has seen the best results of working together with civil society. In particular, she thanked Corruption Watch for their good work, as Members had kept referring to the work done. She then declared the meeting adjourned.


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