The Ad Hoc Committee tasked with recommending a new Public Protector wasted no time in reducing the 14 candidates’ shortlisted and interviewed last week to five who would remain for further consideration next week. Emphasising the nature of a multiparty system and the need to reach consensus, Members considered each candidate – with some there was serious discussion on whether the candidate should remain in the running while for others there was little or no discussion but unanimous consensus that the candidate should be eliminated.
Compared to the previous week’s 20 hour marathon interview process, the Committee took just under two hours to decide on the final five candidates for further consideration. The five were:
Judge Sharise Weiner
Judge Seraj Desai
Ms Muvhango Lukhaimane
Ms Busisiwe Mkhwebane
Prof Bongani Majola.
The Committee also briefly discussed the letter containing the pre-screening results of the14 interviewees carried out by the State Security Agency (SSA). After receiving legal opinion that top-secret clearance was not a requirement for the position of Public Protector and that the information contained many glaring errors, the Committee agreed to ignore the contents of the letter and not take this into consideration when deliberating on the candidates.
The Committee agreed to meet on Wednesday 24 August to deliberate on the remaining five candidates and select the final candidate for recommendation to the National Assembly before the deadline of 31 August 2016.
The Chairperson remarked that Members would today be reflecting on the interviews held last week. She appealed to Members to be as rational and factual as possible and not to deliberate in a manner which cast aspersions on candidates who would be not be retained. There would only be one Public Protector and those 13 shortlisted candidates who did not make the cut would still have to continue with their lives. The Chairperson did not want people to be frightened in future from applying to become Public Protector. The process was not supposed to be humiliating - the process was to find the best Public Protector from among the candidates interviewed. She reminded Members that of the 59 candidates, almost all met the minimum criteria set out in the legislation. As such, the legislation itself began to eliminate certain people. It was also important to maintain the multiparty character of the process. Members had agreed on four thematic areas, beyond what was prescribed in law, to assess the candidates. The law prescribed that the Public Protector must be a judge, an advocate or admitted attorney, or have cumulative experience which already set out who could or could not qualify for the position. In the short listing process, the Committee agreed on four broad thematic areas when considering the candidates – these focused on knowledge, skills, experience and moral integrity. The Constitution also provided for someone who had been a Member of Parliament for, at least, a period of 10 years or had accumulated expert knowledge in public finance, administration of justice etc. Not considering someone due to their political affiliation would be inconsistent with the Act but the Committee took seriously concerns raised by the public into account.
The Chairperson thought that it was important that the Committee go through each of the 14 shortlisted candidates who were interviewed and Members could then indicate whether they would like the candidate considered or not. If not, reasons could be provided. The Chairperson wished that the Committee could find some kind of consensus, at the end of the day, on who would be put forward as the next Public Protector. Public comments should also be taken into account along with all information the Committee received. She was glad Corruption Watch was present because it did good work in going through every candidate who applied, not just those shortlisted, and Members used the information provided as an instrument. The Chairperson again appealed to Members not to humiliate the candidates who were eliminated from the process.
The Chairperson highlighted that she had since learnt that there was a difference between vetting and pre-employment screening – the latter, which the Committee wanted, provided for surface information that would be necessary when exercising initial decisions on a candidate while vetting was a deeper and more detailed process. She apologised for using the incorrect terminology at the previous Committee meeting – the Committee approached the House Chairperson for assistance with pre-employment screening on the candidates to assist Members in ascertaining whether candidates met the fit and proper requirement plus other requirements in the Act. She thus appealed to Members that in considering the interviewed candidates for Public Protector, they should use the information gleaned from the interviews, CVs and their own views as opposed to the information received from the State Security Agency (SSA) in disqualifying a candidate. Members could also make use of information provided by Corruption Watch as a tool along with the questionnaire the Committee had developed , to assist in making decisions. She thanked all political parties for interacting in the multiparty process thus far.
Mr F Shivambu (EFF) noted that, as a matter of principle, all the candidates who came for interviews were ready to face public scrutiny and Members should not sanitise what they wanted to say about some of the candidates – some of whom also did not give the Committee full information and deliberately misled the Committee in the information they shared. Members should then be as aggressive as possible to expose these candidates so that, in the future, those who accepted nomination to occupy the Office of the Public Protector should know they would face scrutiny about what they did not disclose. Members should not walk on eggshells around any of the candidates but should be as brutally honest as possible. The Office of the Public Protector was very important and guaranteed by the Constitution. It was also very important to remember that it was almost impossible to remove a Public Protector as it required a two thirds majority of Parliament. The Committee should then be as honest as possible and not treat anyone with kid gloves – candidates should be exposed so that they know this was not a playground.
The Chairperson would not contest what Mr Shivambu was saying as they once belonged to the same school of thought and had the same ideological orientation.
Mr S Swart (ACDP) noted that the challenge with the letter from SSA was that certain points were put to the candidate which came out of the blue and may well have prejudiced the candidate during the interview. He urged the Committee to consider this during its deliberations along with other points which were also raised about other candidates and included in the letter. Nowhere in the legislative requirements for Public Protector did it state top-secret clearance when this was put to Adv Malunga as a requirement. The Committee should then bear in mind the shock this candidate must have received when he was told he was not eligible for the position because he did not have that level of security clearance.
The Chairperson said everything said by all Members, despite of their party political affiliation, was taken seriously. She had had engagements with SSA and Parliament’s Chief Legal Adviser was present and she had invited her today to share her legal opinion on the matter.
Ms G Breytenbach (DA) remarked that the issue was not that huge because no Member actually put it to Mr Malunga that he did not have top-secret clearance as contained in the SSA document. Everyone knew this clearance was not a requirement in terms of legislation and so this information should just be disregarded.
The Chairperson clarified that she needed to assure all Members that their concerns were taken into account and that some Members did see the letter as a serious and significant issue. This was why she invited Parliament’s Chief Legal Adviser to provide a legal opinion. Ms Breytenbach and Mr Swart were entailed to their differing opinion on the matter.
Parliamentary Chief Legal Adviser Opinion
Ms Zuraya Adhikarie, Chief Parliamentary Law Adviser, informed the Committee that were certain set criteria in the Act and in the Constitution. The burden of ‘fit and proper’ fell on the applicant to prove. Concepts such as honesty and integrity went a long way in establishing whether a person was fit and proper along with reliability of information. Pre-screening information, whether from a state agency or from the information the Committee received from Corruption Watch, was helpful as it allowed an opportunity for the candidate to refute or present information that the Committee could then test regarding honesty and integrity.
In her view, top-secret security clearance was not a requirement articulated in the Act or any statute. She was looking into the matter as she had only just come on board on this process. Her initial view was that it was for the Committee to decide on what aspects were important in its deliberations. The Committee should confine itself, according to the principle of legality, to the powers assigned to the Committee in terms of the Act and also where the criteria was expressly set out. In vetting, SSA was guided by its own legislation and statutory framework but this too should rationally be based on the requirements in the Act.
Shortlisting of five candidates
Mr N Koornhof (ANC) questioned how candidates would be disqualified in terms of whether there would be discussion or not.
The Chairperson said the intention of the meeting was to reflect on all shortlisted candidates and for the Committee to agree on which candidates would emerge as common to move on for consideration as Public Protector. As far as possible, the Committee should aim at reaching consensus. Consensus used to be part of the African culture in the pre-colonial era where men discussed under the tree until dawn to reach a common decision – numbers were not used to impose views. The Committee was a multiparty one and she left it in the hands of Members to exercise their judgement.
She noted that Members had been provided with documents which some candidates had undertaken to provide the Committee during the interview process. Information was provided by Prof Narnia Bohler-Mulller, a rescission of a judgement from Adv Madibeng Chris Mokoditwa and a letter from Ms Muvhango Lukhaimane around the failure to disclose criminal matters or convictions. Members were to consider this information during their consideration.
The Chairperson noted that members of civil society participated in the process and sat in for all the interviews – if the Committee wanted to hear from these organisations and the views from the public, this could be done; otherwise the Committee could move straight to considering the candidates. She just wanted to put this on the table for Members to decide because civil society was very close to the process even running some campaigns and getting members of the public to vote for their choice of Public Protector from the shortlisted candidates. Obviously there were shortcomings to such a process.
Mr Shivambu thought the views of civil society should not be heard – the poll run by Corruption Watch could never be scientific, considering that access to internet and social networks in SA was racially skewed where mostly white people had access. To present such sentiments would be most misleading. MPs were representatives of the people – civil society had provided useful information up until this point and should now observe while the Committee took a decision on who was the suitable Public Protector.
Mr A Masondo (ANC) thought the Committee was not at a point where it should narrowly say what should or should not be considered. Comments were made and he was sure Members would carefully examine the information before in order to make relevant comments.
Ms P Van Damme (DA) expressed concern about the errors coming from the SSA pre-screening information where the candidates could prove that what was stated by SSA was incorrect. The Committee should be seriously concerned about the SSA pre-screening process which had come out with so many errors. She did not know if this was the right platform to raise this issue.
The Chairperson thought this was not the right platform to raise the work done by SSA – perhaps the Committee on Intelligence could look this. The SSA information had no material bearing on the process of the Committee but was merely provided to verify certain information. The matter should be left at that.
Ms Breytenbach did not think the matter could be left at that – the Committee should ignore the letter because it was not worth the paper it was written on. SSA did a shockingly sloppy job, it held no value and they should be sanctioned for bringing such rubbish to the Committee.
Mr W Horn (DA) raised an additional matter the Committee should get clarity on about the SSA letter. When it was handed to Members during the interview meeting, it was addressed to Parliament’s Acting Manager: Security Services. This made him question whether the Chairperson was in any way involved in requesting SSA to get involved in the process or whether SSA imposed themselves on the process via Protection Services.
The Chairperson ruled Mr Horn out of order. That was a pre-interview process and she had approached the House Chairperson as he was responsible for support of Committees. The House Chair then approached SSA while the originator of the request remained the Committee without necessarily requesting that SSA did the pre-screening. This explained why the letter was not addressed to the Chairperson directly because it was left to the relevant structures of Parliament. There was admission that there must have been a problem with communication at some level but these issues would be addressed at an appropriate time.
Mr S Mncwabe (NFP) said time should not be wasted on discussing the SSA letter – Members were in agreement that the contents of the letter would be ignored and all information requested was received from the candidates themselves. Members serving on the Intelligence Committee would take up the matter.
Mr Shivambu found the SSA letter to be extremely prejudicial toward some of the candidates interviewed. Finding clarity on the process of screening of candidates should be taken up with the Rules Committee to allow for consistency on how the issue was handled; otherwise the Committee would be open to litigation in terms of what transpired. Principally, the letter should fall and not be considered at all in assessing the candidates.
The Chairperson noted that another letter would be circulated to Members which would have an implication on their assessment of candidates. The letter contained information on Adv Mamiki Goodman in reference to her resignation – Members should take this into account when considering this candidate because it meant what was contained in the letter and what the Adv Goodman told the Committee were not in sync.
Members were reminded to be rational and not humiliate candidates in the process while the Chairperson also noted that she had no right to impose on Members how to put their views across.
Adv Michael Mthembu – not retained
The Chairperson thought that reasons should be provided for the non-retention of candidates.
Mr Koornhof suggested reasons should not be provided if there was multiparty support for the elimination.
The Committee was in agreement that Adv. Mthembu "should fall".
Judge Sharise Weiner – retained
The Committee was in agreement that Judge Weiner "should stand".
Adv Madibeng Chris Mokoditwa –not retained
The Committee agreed that Adv. Mokoditwa "should fall".
Mr Horn cautioned Members against their language as the Chairperson cautioned in the beginning of the meeting - he did not think it was appropriate for the Committee to say candidiates "must fall".
The Chairperson apologised.
Mr Shivambu felt Members should not teach each other how to speak.
Judge Seraj Desai – retained
Mr B Bongo (ANC), when reading the Public Protector Act, noted it said the person appointed must be a judge and this was why he wished to keep those candidates who were judges. Using the four thematic areas outlined by the Committee and looking at his experience, Judge Desai had over 30 years experience in the legal fraternity and 21 years experience practicing as a judge in the Western Cape Division. It was rational to keep the judge with more years experience. Furthermore, Judge Desai demonstrated that he was a human rights activist and was seriously involved in the struggle against apartheid. The other judge had only experience in corporate law and not human rights activism. Judge Desai recently also passed a judgement which benefited millions of people in the Western Cape which showed his patriotism.
Ms Breyetenbach said that while Mr Bongo was correct that one of the requirements for Public Protector was to be a judge, it was however not the only requirement – being a judge did not make the candidate fit to be Public Protector. Being an activist was also not one of the requirements. Comparing the interviews between Judge Desai and Judge Weiner, in her view, Judge Weiner had an outstanding interview, there was nothing contentious, she certainly did have a history in activism and she put in a lot of time and effort in transforming the Bar. With the greatest of respect, Judge Desai, on the other hand, had a very contentious interview, lost his temper, was very very volatile and was abusive towards Members of Parliament who legitimately questioned him. Judge Desai had been on the Bench for 21 years and in that time had produced more or less 33 notable judgements – Judge Weiner had been on the Bench for five years and in that time produced approximately 71 notable judgements which was more than three times Judge Desai’s rate – this showed a clear difference in work ethic. There was also nothing contentious about the one judge and everything contentious about the other. The Corruption Watch information showed Judge Desai took a while to produce a judgement which was something one did not want from a Public Protector with its high volume of work. There was also a huge question mark over the Mumbai incident and this was not the only questionable incident. More importantly Judge Desai demonstrated in his interview, and elsewhere, a certain bias which she believed disqualified him as candidate for Public Protector.
Mr Horn added that when looking for someone to fill the post of Public Protector, he hoped the Committee was also looking for someone who could rise above the divisions of the past as the Constitution called on all South Africans to do. From his interview, he was not sure that should Judge Desai be elected Public Protector, he would be able to rise above the past, like Madiba did, to unify SA through his work.
Ms R Mothapo (ANC) felt Judge Desai was fit and proper to be the future Public Protector. During the short listing process, Mr J Selfe (DA) was very clear that the DA was not in favour of short listing Judge Desai because, in a Commission of Inquiry, he ruled against the DA. She was therefore not surprised by what the DA was trying to do. Her submission was that Judge Desai was fit and proper and an isolated incident of losing one’s temper did not automatically disqualify one.
Ms Van Damme disagreed – the exercise was not only about seeing whether people met the requirements as set out in the Public Protector Act. If this was the case, all the Committee would need were the CVs and the Act and simply tick names. Interviews were held to make value judgements to ensure they had the right temperament and attitude for the job. The interview with Judge Desai proved he neither had the temperament or the value judgements required for the job. He was asked two simple questions and he completely fell apart. During her last term, Thuli Madonsela was under a lot of pressure but she never lost her temper or attacked Members of Parliament but remained graceful – a quality Judge Desai simply did not have. As he did not have the right temperament for this job, she did not think he was suitable for it.
Mr Shivambu did not think the Committee should consider the history of activism of candidates or involvement in the struggle. Judge Desai was an excellent Judge but the Office of the Public Protector also came with fiduciary responsibilities and obligations to account for finances allocated. When Judge Desai was asked a question about how he would deal with finances, he said he was a socialist and the issue of finances was not his skill –with an attitude like that it might mean the Office of the Public Protector could face challenges in the audit process and this in itself could undermine the Office. Judge Desai also did not pay attention to detail and deliberately ignored some questions when a judge should be honourable enough to state if he did not have a view or at least respond to particular questions. He further did not pay much attention to how he would improve accessibility of the Office of Public Protector – the major issue was that the Office must be accessible to the people. Temperament was also a serious issue and should never be underestimated – the Public Protector needed to be patient with many people because the Office would investigate politicians and political appointees with many extreme views. The judiciary of SA should be saved by not stealing one of its most excellent judges – Judge Desai should be left on the bench to continue delivering excellent judgements.
Mr Masondo supported Judge Desai as a candidate. The Committee was in agreement about his knowledge regarding the law and indeed he was an excellent judge. An important comment made by Judge Desai was that the work of the Public Protector should cover all people and not just high-profile cases because the Public Protector was there for all people and not just some. Judge Desai had the leadership qualities to be put to good use going forward. He had good analytical skills and he had worked with many people and organisations which left no doubt as to his interpersonal skills. Judge Desai’s over-30 years experience was also worth noting. In his view, Judge Desai was nobody’s yes man and this was very important in ensuring the independence of the Office of Public Protector remained in place and that the work of the Office got done.
Dr P Maesela (ANC) noted that value judgements were conditioned by one’s socialisation while in this process the value judgement should be balanced with objectivity – objectivity can only be ascertained with concrete things which were done to validate value judgements. Prejudice was a function of one’s upbringing or socialisation. Members should aim for consensus based on objectivity even if there was a value judgement. Judge Desai was rattled by adversarial questions which were based on hearsay and lies. Members should be objective with value judgements based on concrete evidence.
Ms Van Damme resented the suggestion that she was not being objective – she was elected as a Member of Parliament to choose the new Public Protector and she took the job seriously.
Dr Maesela responded that his comments were not directed at Ms Van Damme. He was emphasising the need for building consensus and that Members’ own value-laden judgements must be based on objectivity. He was sorry if Ms Van Damme interpreted his comments that way – it was nothing personal.
The Chairperson asked that if Members withdrew statements, it should simply be allowed.
Ms Van Damme said there would have to be value judgements otherwise the Committee would only need to sit with CVs and tick the names who met the requirements. The process was to look at matters beyond the CV and if someone could withstand the pressure of being Public Protector – Judge Desai would not be able to withstand the pressure. She also disputed the fact raised by Mr Masondo that Judge Desai would be the Public Protector “for everyone”. In his interview, he completely lost his temper, fell apart after a mere two questions and said he could not stand white middle class people. Someone who made comments like that during an interview would clearly not be a Public Protector for everyone. Judge Desai clearly had prejudices, could not control his temper and was absolutely not suited to be Public Protector.
Mr Koornhof noted that interviews were sometimes very subjective – he thought the interview of Judge Desai was very colourful. There was no doubt that Judge Desai was a good judge and there was no doubt in his application of the law. Mr Koornhof asked about becoming the Public Protector for all and he responded positively. For the sake of consensus and dealing with a profound judge, he appealed to the opposition to jot down Judge Desai.
Mr C Msimang (IFP) said his impression of Judge Desai during the interview, was that he was definitely above some of the other candidates such as Adv Mthembu and Adv Mokoditwa. He could easily say that those candidates should not be retained but he could not do that as easily for Judge Desai. He felt that Judge Desai should be discussed further. Judge Desai had strong points as a very capable judge and as a lawyer with over 30 years of experience along with a sensitivity for the down-trodden whom he had defended. Mr Msimang felt Judge Desai should not be eliminated just yet as he was of a level above both Adv Mthembu and Adv Mokoditwa.
Dr Maesela noted that the previous Friday, Chief Justice Moegeng Moegeng warned politicians not to misuse the courts and to say judges were biased when they did not rule in one’s favour. In politics, one learnt there were no absolutes and this was why he said value judgements were a function of one’s upbringing and socialisation. He would not teach what racism was – he was a victim of it and when someone said they did not hate people but hated the wrong things they did, that did not mean that person should not hate the wrong things people did. When someone said they hated injustice, the kind of injustice should not be questioned since injustice was injustice. Consensus should be built with objectivity.
Mr Swart thought there was no doubt that Judge Desai was an excellent judge and had delivered a number of very good judgements. Judge Desai himself said he was not a very popular judge and it was clear that he was a very colourful and very controversial figure. Mr Swart’s concern was the dismissive way in which he interacted with some Members of the Committee particularly Ms Van Damme when she posed certain questions during the interview. The position of Public Protector required close interaction with Parliament and it was known that the interaction between Parliament and the Public Protector was not as healthy as it should be – this was his concern.
Mr Mncwabe thought Members should avoid being so political at such an early stage. He was shocked by the reaction of the Judge at certain points in the interview but he urged Members to be objective and revisit the questions posed to the Judge during that interview that provoked that kind of response. Some of the questions were very personal such as what happened in India and about his health. He felt that such an experienced judge could not be eliminated at such an early stage but should remain to be debated at a later stage. Judge Desai was well experienced in terms of practising law.
Mr Shivambu also felt Judge Desai should be attended to at a later stage.
The Chairperson was really encouraged by this attitude. At this stage it felt as if the majority of Members thought Judge Desai should not be eliminated at such an early stage.
Ms Breytenbach registered the dissatisfaction of the DA with this decision.
The Chairperson noted this.
Prof Narnia Bohler-Muller – not retained
Mr Shivambu thought Prof Bohler-Muller should not be retained. He found some of her explanations unsatisfactory and that it raised further questions.
Mr Bongo agreed.
Adv Mamiki Goodman – not retained
Mr Shivambu thought Adv Goodman should be disqualified – she was unstable and changed jobs too quickly. The Committee should deal decisively with people who caused organisational disharmony in public institutions which relied on the faith of the public. Adv Goodman should not be elevated to any position of public responsibility such as a Public Protector because when she was Deputy Public Protector she caused much disharmony and made many accusations. Adv Goodman should never apply again.
Ms Busisiwe Mkhwebane – retained
Mr Bongo thought Ms Mkhwebane should remain.
The Committee concurred.
Ms Jill Oliphant – not retained
Ms Mothapo thought Ms Oliphant was not a fit and proper person so she should not be retained.
Mr Swart thought it was not appropriate to say a candidate was not a fit and proper person – there might be other reasons why they would not advance as a candidate. There were some issues around Sun City and other matters but Ms Oliphant did not seem too interested in the position but she did qualify as a fit and proper person.
Mr Shivambu highlighted that Ms Oliphant also did not demonstrate any knowledge of public administration or public finance, as the Act prescribed, in her interview.
Ms Kaajal Ramjathan-Keogh – not retained
Mr Shivambu thought Ms Ramjathan-Keogh should not be considered. Her lacklustre approach to the question of peace and justice was extremely dangerous because one needed the social consciousness and conscious to appreciate that, sometimes in pursuit of legalistic issues, there were other matters of political and public interest that one should consider. Ms Ramjathan-Keogh should focus on the organisation she was leading. Civil society formations were needed that dealt with those issues but she should not be considered for the position of Public Protector at all.
Ms Breytenbach remarked that Ms Ramjathan-Keogh clearly met the requirements and demonstrated her knowledge in all the areas she needed to demonstrate it and if Judge Desai could make the further shortlist then Ms Ramjathan-Keogh could too.
Mr Bongo supported Mr Shivambu on this candidate. He had asked Ms Ramjathan-Keogh specifically about the fit and proper requirement in the light of promotion of national interests and national unity but she was very evasive in answering these particular questions. She was also arrogant in answering Mr Masondo’s specific questions around funding. Mr Bongo had subsequently received an email from a civil society organisation [My Vote Counts] questioning who was funding Mr Masondo and his party. This was not in line with the good faith and spirit in which the process was conducted.
Ms G Tseke (ANC) did not think the Ms Ramjathan-Keogh presented herself professionally in terms of her conduct and interaction with the Committee especially in the exchange of words with Mr Masondo. She agreed that Ms Ramjathan-Keogh was arrogant and she should not be retained to continue her excellent litigation work in the NGO sector.
Ms Mothapo fully agreed that Ms Ramjathan-Keogh should not be considered. She should continue her sterling work at the Southern African Litigation Centre.
Mr Swart thought Ms Ramjathan-Keogh interview questioning was extremely aggressive and he took exception to this. He found the question of ‘fit and proper’ as it related to some national interest because she won a court case, was totally irrelevant. The questions put to her about who ‘controlled’ her organisation and if she wanted regime change, were totally unfair. He thought Ms Ramjathan-Keogh was treated very aggressively – whether this made her a good Public Protector or not was a separate issue but the mere fact that she won this court case seemed to count against her from the word go. He thought her organisation did some incredibly good work and she answered the matter of peace and justice very well to say that it was self-inflicted by the SA government by allowing the President of Sudan to come to SA. At the end of the day, Ms Ramjathan-Keogh was treated unfairly. However, he did think she might play a better role in the organisation she led because she was not able to answer his questions relating to finances. She did not seem to have a very clear grasp of the financial implications of the institution of the Public Protector and its interaction with Parliament and this could have been a constraint.
Ms Van Damme thought the hypocrisy of the ANC should be noted. In discussing Judge Desai, he was very aggressive and attacked Members of Parliament which was qualified as being “strong” and “colourful” but when a woman stood up for herself she was described as “arrogant”. This sexism and hypocrisy must be noted.
Mr Shivambu said that among the funders of the SA Litigation Centre, Ms Ramjathan-Keogh mentioned the US State Department. Historically, if Ms Ramjathan-Keogh had studied the history of conflict all over the world, the American State Department was extremely disruptive and anything to do with Americans should not be trusted. This should be clear.
The Chairperson appealed to Members to not allow the meeting to degenerate into chaos. There was a difference of opinion on this matter but the majority of the Committee thought Ms Ramjathan-Keogh should not be retained.
Adv Kevin Malunga – not retained
The Committee agreed that Adv. Malunga should not be retained.
Adv Nonkosi Princess Cetwayo – not retained
Members felt that Adv. Cetwayo should not be retained.
Mr Willie Hofmeyr – not retained
The Committee was not in support of retaining Mr Hofmeyr.
Ms Muvhango Antoinette Lukhaimane - retained
Members agreed to retain Ms Lukhaimane.
Prof Bongani Majola – retained
Mr Shivambu thought Prof Majola should teach post-1994 law at the University of the Witwatersrand. He had read a report that the position of head of the law school had recently become vacant and Prof Majola might play a more meaningful role at the Wits Law School. Perhaps in future Prof Majola could be considered but not at this stage. He was too closely associated with the apartheid state.
The Chairperson disagreed. She thought Prof Majola came off very well during his interview and she was particularly impressed with his international experience and how he was able to integrate that into his current assignments. Above that, the whole issue of his having taught during apartheid was unfair – people who actually achieved despite that environment should be celebrated. This was her view. It was not fair and rational for Prof Majola to be eliminated at this stage.
Mr Shivambu responded that during apartheid, people were killed and arrested for nothing.
The Chairperson replied that Prof Majola told the Committee he was not responsible for that.
Mr Shivambu retorted that life, during apartheid, had simply carried on for Prof Majola without involvement in the struggle when black people were being criminalised by the state and he was not affected by this.
The Chairperson felt that Mr Shivambu was now contradicting himself because earlier he said there should be no provision for activism when considering the candidates.
Mr Shivambu thought the Chairperson misunderstood him. He thought Prof Majola should be rehabilitated by teaching post-1994 law to understand the new dispensation. He was not comfortable with those who acted neutrally during the struggle against apartheid. People who ignored the fact that unarmed children were killed by the apartheid state should not be celebrated.
The Chairperson said that Mr Shivambu’s point was made. She humoured Mr Shivambu, saying he had such a fine brain but when he started getting angry, he lost it.
Mr Shivambu stated that he was not getting angry.
Mr Mncwabe supported Prof Majola as a candidate. During the interview, he displayed varied skills which could be used by the country especially in the Office of Public Protector. Struggle credentials were not in the requirements and this was also not part of the consideration when discussing the other candidates. He appealed that Prof Majola remain for later engagement.
The Committee agreed that Prof Majola remain.
The final list of candidates who remained in the running for Public Protector were:
Judge Sharise Weiner
Judge Seraj Desai
Adv Busisiwe Mkhwebane
Ms Muvhango Antoinette Lukhaimane
Prof Bongani Majola
The Committee would meet for further deliberations on Wednesday, 24 August 2016 at 13h00. The Chairperson said that Members should go and apply their minds to the five candidates who remained for further objective discussions so as to reach a decision on who would be the next Public Protector, ideally by consensus and not by vote.
The meeting was adjourned.
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