Committee recommendation for Public Protector: finalisation

Appointment of Public Protector

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

The Ad Hoc Committee recommended Adv Busisiwe Mkhwebane as the preferred candidate to the National Assembly when it tables its report on 31 August 2016. All Committee Members, apart from the DA, reached consensus agreement on the name of Adv Mkhwebane. Members spoke very positively of the recommended candidate noting that she gave an excellent interview, had a sound temperament and outstanding CV in terms of qualifications and experience.

The name of Adv Mkhwebane will require 60% support from the Members of the National Assembly before it can be sent to President Jacob Zuma as the recommended appointee.

Meeting report

Chairperson Opening Comments
The Chairperson noted that it was still important to keep the integrity of the process intact. There were many talks and discussions among political parties but, ultimately, the Committee needed to come up with what was best for SA and she would be recapping how far the Committee had come with the process.

Committee Minutes: consideration and adoption
11 and 12 August 2016 minutes of the 20 hour interview process
The Chairperson noted that although it was one meeting, it did spill over into the next day hence the two dates. Additionally, the minutes were not a verbatim account of the interviews but a capturing of what transpired during the 20-hour meeting. As far as possible, the Committee administration tried to pick up on critical points. Luckily the meetings were recorded and broadcast live so there would always be that reference should there be any dispute of the facts in the minutes.

Members felt that the minutes should reflect the titles of Members and for this to be consistently used throughout the minutes.

Mr F Shivambu (EFF) questioned the value of having a 20 hour meeting summarised into five pages because there were so many matters not captured.

The Chairperson reiterated the minutes were an abridged version of what transpired at that meeting. Should Members require further details there were recordings of the meetings or a request could be made for a transcript. The minutes highlighted what transpired at the meeting.

Mr Shivambu did not think the minutes were of any help – it should contain the issues raised by the Committee in relation to each and every candidate interviewed and not the generalised questions posed. The minutes were not of any help for future reference either because if someone who was not familiar with the process read the minutes, they would never have a full understanding of what transpired. His understanding of minutes was for generations to come to get the essence and context of the issues raised. With the current minutes, the issues were brushed over without any value. It would be better to have more substantial minutes for the Committee to consider at a later stage.

The Chairperson highlighted that it would be important for the Committee to have a transcript of the entire process because it would act as an official written record of what transpired for everyone to appreciate what took place throughout. Additionally the Committee committed to a transparent process that involved members of the public – there were some weaknesses in the process but on the whole, the Committee tried to set a particular precedent.

Mr Shivambu thought the issues about the State Security Agency letter should be reflected in the minutes.

The Chairperson agreed insofar that the minutes should reflect how the matter was handled by the Committee but it was important to remember that there would be a transcript and that meetings were recorded.

Mr Shivambu said minutes should reflect the concerns raised by Members about the SSA letter and attempts at clarification. Minutes were there to be an adequate reflection of what transpired during the meeting and to provide context to the issues dealt with and resolutions taken.

The Chairperson hoped Mr Shivambu was not suggesting the Committee administration record observations – this would be a serious problem. Minutes must be a true reflection of deliberations.

Mr A Masondo (ANC) thought it might be useful to have a transcript of the proceedings and for the minutes then to refer readers to it.

The Chairperson emphasised the minutes were there to be a true reflection of what occurred in the meeting and not to reflect subjective observations.

Mr Shivambu maintained that the matter of the SSA letter must be reflected in the minutes because the fact was that Members were concerned about the letter.

The Chairperson thought this was in order.

She asked if the minutes could be adopted with the qualifications to be made around including a transcript and the capturing of the dispute of the SSA letter.

Mr N Koornhof (ANC) moved for adoption of the draft Committee minutes dated 11 and 12 August 2016 with amendments and Ms G Tseke (ANC) seconded the motion.

18 August 2016 minutes
The Chairperson reiterated that the minutes were not a verbatim account – they were there to reflect the key highlights of the meeting because there would be transcripts.

The Chairperson asked that there be consistency with the titles of Members.

Ms P Van Damme (DA) reminded the Committee that there was a resolution in that meeting on how the SSA letter would be handled but this was not reflected in the minutes – she felt it should be reflected.

Members felt that a better word for “reject” should be used in the minutes when candidates did not make it through to the final round of deliberations.

Mr S Mncwabe (NFP) agreed.

Mr Shivambu suggested a summary of the reasons as to why some candidates were not be retained should be included – this would help those applying for the post in future to be aware of some of the reasons the candidates were not retained.

The Chairperson said this could be done however for some of the candidates, no reasons were provided for not retaining them. If reasons were provided for some, they should be provided for all for consistency. The fact was that for some candidates there simply were not reasons provided as to why they were not retained and the minutes could not be manipulated to add content that was not discussed. Perhaps the Committee would need to revisit, at a later stage, reasons for not retaining candidates because reasons were not provided for all.

Mr Shivambu suggested that for those candidates where no reasons were given for not retaining them, the minutes could say that no Member raised the name of that candidate for short listing. Such information would also have to be included in the comprehensive report the Committee would hand to the National Assembly. For the candidates where reasons were provided for why they were not retained, context should be given to those reasons. The minutes in its current state was not an adequate reflection of what transpired in the meetings.

Dr P Maesela (ANC) did not think it was fit and proper to say why some candidates failed - those interested in why some candidates were excluded, should refer to the transparent recordings of the meetings.

The Chairperson agreed and highlighted that this was the beauty of having a transparent process. The intention of the Committee was not to humiliate candidates – the primary intention was to recommend the best Public Protector for SA.

Dr Maesela moved for adoption of the draft Committee minutes of18 August 2016 with amendments and Mr Koornhof seconded the motion.

Information for the Consideration of Members
The Chairperson tabled a letter from the Open Democracy Advice Centre (ODAC) and another submission from an individual for Members to consider.

Chairperson's Comments on the Process and Candidates
The Chairperson, at this point, felt it important to provide a recap so that certain matters were not distorted as the process moved forward. She noted that the process was a public one and such intense public interest was unprecedented. As such, the Committee collectively agreed to encourage public participation and in this encouragement it became very evident that none of the candidates nominated came from political parties. Members sought to use a range of tools to do a 'fit and proper' assessment of candidates – these tools included the Constitution, provisions and criteria in the Public Protector Act, Curriculum Vitae of the candidates and public comments and objections thus allowing members of civil society organisations to scrutinise each candidate and provide the Committee with their observations on each candidate.

Political parties individually conducted their own due diligence which was also used as a tool to probe candidates as to being fit and proper, independent and able to act without fear, favour or prejudice. These were factored into their contributions, deliberations and considerations during the interviews. Civil society organisations, notably Corruption Watch, used their own resources to ensure the Committee was equipped with relevant information to enhance and ensure the integrity of the process. This information was not prescriptive but left to Members to use at their own discretion either as a tool or as additional information. The Committee also came up with its own questionnaire drawing from the Judicial Service Commission (JSC) process in selecting judges. This was used to check whether the information in the CVs of candidates was in sync or whether there were any gaps – some Members used the questionnaires as effective tools. The Committee further adopted key broad focus areas for assessment: knowledge, skills, experience and moral value systems.

She put it on record that the Committee decided to disregard the information derived from the SSA – this resulted in the inclusion of some of the candidates that were contained in that report and which resulted in the five shortlisted candidates.

The Chairperson highlighted that the top five shortlisted candidates all had outstanding strengths of which she wanted to share some with Members. She did not want to delve into the weaknesses because all the shortlisted candidates had significant strengths and the final decision would be a very difficult one for the Committee to make.

- Judge Sharise Weiner: she appeared to be a woman of note, stature and standing. The effort she put into preparing for the interview spoke volumes about her outstanding character. She had extensive experience in corporate law
- Judge Seraj Desai: he unambiguously declared his bias for the poor and downtrodden. He was the most experienced judge with over 30 years experience in the human rights field
- Adv Muvhango Antoinette Lukhaimane: her dealings with the backlogs at the Financial Services Board on long overdue cases, defined her as a practical woman which showed her own take on efficiency and attending to tasks which may seem overwhelming
- Adv Busisiwe Mkhwebane: the youngest of the top five candidates, proved to have the balance of temperament, knowledge, experience and attention to detail. She practically demonstrated this by answering almost every question that Members put to her and even remembered each Member by name. Her execution of the most challenging tasks at Home Affairs demonstrated her agility and ability to rise above what may seem to be a crisis
Prof Bongani Majola: an undoubtedly all-rounder with extensive international experience.

The Chairperson chose to highlight these strengths of the candidates because during the deliberations, she wanted the Committee to remember that each of the five candidates did have their own strengths otherwise she did not believe they would have been shortlisted. All the candidates were shortlisted on merit but this did not mean the other applicants did not have outstanding qualities or met the criteria as set out in the Act. However, difficult decisions have to be made as the Committee was looking for only one Public Protector. She thanked the members of the public who took centre stage during this process as well as civil society organisations. She also thanked the media for ensuring the process was kept in the public spotlight. No process was perfect but the Committee strove for public excellence and she assured all that it was part of a continual improvement process. She thanked Members for navigating through the gruelling process. Ideally she did not like the idea of the Committee voting on a final candidate – it would be great to reach consensus but whoever came up with quantitative democracy, acknowledged that decisions have to be made. Voting would be an inevitable option if the Committee failed to reach consensus.

She suggested the Committee deliberate on each of the five shortlisted candidates and perhaps state some highlights Members wished to share but she welcomed any other approach.

Mr Shivambu thought the Chairperson did a very good job under the circumstances relative to many other Chairpersons and Presiding Officers in Parliament. He appreciated the efforts of the Chair even when there were robust disagreements.
The Chairperson appreciated this. She asked that Members now move to deliberations.

Committee Deliberations on the Five Candidates
Mr J Malema (EFF) indicated that he was present to ensure Judge Desai was not selected.

The Chairperson clarified that the Committee would be deliberating in the order in which the five candidates where interviewed so Judge Weiner was first. Although there was no perfect candidate, she found it important that the Committee highlight their strengths during the deliberations because SA needed to appreciate that these men and women where shortlisted based on merit and not through a subjective process.

Mr B Bongo (ANC) wanted to establish the process of deliberations.

The Chairperson proposed that Members go through and consider each of the candidates.  

Mr Bongo was just checking because the Chairperson already spoke to some of the strengths of each candidate in her introductory comments and asked if the Committee would be doing the same.

The Chairperson said the Member should not be confused – she provided brief initial comments appreciating each candidate who remained in the process.

Judge Sherise Weiner
Ms G Breytenbach (DA) highlighted that it was the view of the DA that Judge Wiener had an excellent interview – she was very well prepared and had more than sufficient experience in the field she would find necessary in the job. She was by far the outstanding candidate of the five.

Ms M Mothapo (ANC) noted that during the interview, Judge Weiner conceded that she only had five years experience on the Bench as prior to that she was practising in corporate and family law. Representation of women on the Bench was really needed and, therefore, Judge Weiner should remain there. While there, she could also learn more about human rights because most of her experience was in family and commercial law. Ms Mothapo therefore did not recommend Judge Weiner for the position of Public Protector.

Mr N Koornhof (ANC) remarked that Judge Weiner made a very good impression when she was interviewed in front of the JSC when he was a member - she also made a good impression during her interview for Public Protector. He asked her whether it would not be better for her to remain within the judiciary for the time being. He had no doubt that the specific division would be much the poorer without her being a judge there. He therefore felt she should remain a judge.

Ms Van Damme thought that to use the argument that the candidate only had experience practising one area of law, was not fair. Other candidates on the shortlist, like Adv Lukhaimane and Mkhwebane, would then immediately be disqualified on such grounds.

Mr Malema interjected to note that the Committee was discussing Judge Weiner at this moment and not other candidates.

Ms Van Damme clarified that her argument was to say if a candidate had experience in only one area of law and so was not suitable, this was not fair. There were other candidates on the shortlist that also only had experience in a certain area of law but it did not preclude them from selection as Public Protector. It was not a fair argument.

Mr Shivambu noted that the office of Public Protector was established to primarily deal with abuse of state institutions, deal with maladministration, undue benefits and matters that related to public finance management processes and municipal finance management processes. With the attention the Office was now receiving due to Constitutional Court judgements and what happened under the incumbent Public Protector, there was growing interest in the Office. Someone was then needed who would be able to hit the ground running, one who had understanding of how the Office operated and had practical experience of the public space with an understanding of the law. Holistically, he did not think Judge Weiner possessed those skills – she was doing well in her current responsibility as a judge but he did not think she would hit the ground running. Judge Weiner would still have to familiarise herself with details – it was one thing to understand the Public Finance Management Act (PFMA) on paper and another to understand its practical implementation. He did not think Judge Weiner a suitable candidate and she should not be considered.

Mr W Horn (DA) did not agree with Ms Mothapo that Judge Weiner still needed to learn about human rights – he thought this was an unfair statement. The Act said the candidate needed experience as a judge or cumulative experience of ten years as a legal practitioner. Ultimately a Public Protector needed to investigate, find facts and apply the law. In this regard there was agreement that judges, by definition, were primarily suited for the job. For exemplary reasons it might be better to leave a judge on the Bench but to say the specific candidate might not be able to perform the functions and duties of a Public Protector was stretching the argument and did not allow the candidate the due consideration she should be getting.

Mr S Mncwabe (NFP) was concerned about the practical legal experience of Judge Weiner being limited to corporate law when the Office of the Public Protector required interaction with ordinary citizens of SA – he did not think Judge Weiner was a relevant candidate in this respect. He respected her credentials and appreciated her outstanding performance during the interview – he supported the move that Judge Weiner not be considered for the position of Public Protector.

Mr S Swart (ADCP) highlighted that when the Public Protector Act was drafted, it was spoke to being a judge of the High Court – the Act did not speak to what experience one should have or for how many years because of the assumption that a judge would have the suitable qualifications. Judge Weiner was an exceptional candidate and he thought she would do an excellent job as Public Protector. The challenge with a judge, as Mr Shivambu pointed out, was the inability to hit the ground running immediately.  Judges had pending cases and this was a consideration in view of the high-profile nature of the position of Public Protector along with a huge backlog of cases.

Dr Maesela said that judges were trained to apply the law and were not social reformers. He admired Judge Weiner but found her understanding of social relations rather academic. She also did not attempt to answer his question about the developmental state and a national democratic society. A Public Protector was not a crime buster but a nation builder and especially to protect those aggrieved. Being trained just to apply the law without the social implications, it would be difficult to remain objective. Objectivity was based on concrete things that were there. The Public Protector needed to understand society, build a nation and contribute to cohesiveness to the body-politic. He thought Judge Weiner was a good judge but what was wanted was someone who had empathy for the downtrodden and who would actually understand the society in which they operated from a non-academic or subjective point of view.

The Chairperson said that she would not allow Members to speak twice on a single candidate because then the process would never finish. The pace at which the Committee was moving was already slow.

Prof C Msimang (IFP) agreed that to be a judge was an essential requirement and while Judge Weiner was a very good judge, her experience was very narrow. Throughout her career, she seemed to have focused on corporate law to the extent that he agreed with other Members that she be left in that environment because there was more need for corporate lawyers on the Bench than in the institution of Public Protector. The work of Public Protector was also more concerned with human rights than corporate law – this was why he agreed Judge Weiner be left on the Bench.

Mr Malema agreed that to remove a female judge from the Bench could not be afforded. There was currently a case before the South African Human Rights Commission for the JSC not meeting its constitutional obligations to meet gender balance in terms of the Bench. The Committee could not contribute to removing women from the Bench and making the JSC not to meet its obligations. The Bench needed as many women as possible. Secondly, if the Committee was confronted with two capable women, one a white woman and the other a black woman, the question would be if it was fair to appoint a white woman, given the historical background of SA. It would not serve transformation to overlook a black, qualified female and appoint a white female - to appoint a qualified white woman would actually reverse the gains made in transformation. The Committee should not shy away from looking at the racial issue during considerations. SA had a difficult past and every decision made should seek to reverse imbalances created by the previous regime. On the basis of those two arguments, Judge Weiner should not be considered.

Judge Seraj Desai
Mr Masondo emphasised that the Public Protector was expected to, amongst others, address high-profile cases. The Committee should, importantly, identify a person who would be able to ensure that there was protection for the majority of people especially the downtrodden and those who came from a disadvantaged background. This bias towards the poor was imperative. This characteristic was one displayed by Judge Desai more than any other candidate and this was something the Committee should take into account. It was also important to consider his over 30 years experience and that he was nobody’s “yes man” which would ensure the independence of the Office of the Public Protector was maintained. Judge Desai, like any other candidate, deserved consideration and should not just be brushed aside.

Ms Breytenbach acknowledged that Judge Desai met one of the requirements of being a judge but everyone could concur that he had a very poor interview and public opinion supported this if one looked at social media. Section 193 of the Constitution required that the person selected as Public Protector be fit and proper to hold that position specifically, and Judge Desai clearly was not. He had no control over his tongue and no control over his temper – the Public Protector should have an even temper as s/he would be subjected to a huge amount of stress in the job and, going forward, this would get worse and not better. During his interview Judge Desai was rude, aggressive, arrogant and dismissive of Members who questioned him and it was common knowledge that his health was not good despite what he said. In her view, this made Judge Desai not fit and proper to hold the position of Public Protector. Additionally, he had a poor record of productivity – when his record, with his many years of experience, is compared to Judge Weiner’s five years experience, he compared very poorly. Judge Desai was argumentative, his use of language often inappropriate, he evaded questions and refused to answer some and he made some alarming statements including that he had an issue with the white middle class – whoever became Public Protector needed to know the white middle class also formed part of the citizenry of SA and was entitled to as much attention from the Public Protector as anyone else. Her submission was that Judge Desai would be little less than a puppet and she could never support his appointment to position of Public Protector.

Mr Bongo highlighted that the Portfolio Committee on Justice was currently processing the amendment of legislation to take care of the judgement passed down by Judge Desai which would assist the millions of poor affected by garnishee orders. The Constitution outlined that one could not be discriminated against because of one’s health, amongst others – it would not be good to discriminate against candidates on this basis. Judge Desai had over 30 years experience in the legal fraternity and was a renowned human rights lawyer. He spent almost his entire life fighting against the apartheid government. He was also a judge for over 21 years and his credentials were above almost all other candidates in terms of his CV and his practical experience. The Committee might have to consider that judges serving more than 21 years can apply for retirement and accrual of benefits, given that judges were judges for life.

Dr Maesela thought that it went without saying that Judge Desai had vast experience and that he would not have been a judge for over 21 years if he did not know what he was doing on the bench. He found himself in THIS milieu not by choice but through life’s hard experience – this was why sometimes when he thought of the persecution that he endured he could not help but feel aggrieved. Challenging the garnishee orders, as he said, was the defining point of his career as a fighter for the downtrodden and no one could take that from him. The Committee was here to find out whether his strengths outweighed his weaknesses.

Mr Malema objected to Judge Desai because he refused to answer the question on the rape protest which occurred at the Independent Electoral Commission (IEC) Local Government Election results. The issue of rape was a very difficult one in the country’s society yet Judge Desai did not have an opinion on rape culture in SA even when Mr Shivambu put the question to him twice. Women should be extremely worried that one of the candidates for Public Protector had no opinion on rape culture and unashamedly refused to budge on not answering the question when he had the platform to deal with it and show society how he felt about the terrible pain of rape culture in SA. This was supposed to be a man of honour and a responsible person but he himself had a dark cloud hanging over him on the rape issue. If his temper was anything to go by, there was nothing for the poor. The poor raised many petty things given their plight. One often had to listen to such complaints not seeing their value but such issues were very important to poor people. With someone so impatient that spoke the way he wished and disrespected Members of Parliament to the point where he had to apologise, he could not imagine Judge Desai dealing with an ordinary poor person when there were no cameras. Judge Desai apologised because of the cameras in the interview – if he was in a squatter camp interacting with poor people he would never apologise because there would be no cameras. If someone could behave in such a way in front of the whole nation, it could not be imagined what that person did in a private space where there was no authority. He spoke to Members like they were his subjects – those coming to Parliament must know that Members were representatives of the people and they should, at all times, be treated with respect. Feminists and gender activists should always be jealous when a female was replaced by a male – such actions also undermined the transformation being pursued. The current Public Protector was a successful female and everyone should wish to replace her with another female to prove to the doomsayers that indeed, women were capable of holding strategic positions in society and making those positions successful. He appealed that the current Public Protector not be replaced by Judge Desai based on the three reasons he provided.

Ms Mothapo highlighted that the Bible said “forgive so that you are also forgiven” – Judge Desai apologised for his temperament and what occurred during the interview which was just an isolated incident, so to say. To say Judge Desai was rude, arrogant and discriminate against him based on his health, was disingenuous. As Mr Bongo alluded to, the Justice Committee was dealing with a very progressive judgement [University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice] which prevented depriving the most vulnerable through garnishee orders. Judge Desai declared Section 55J of the Magistrates Courts Act unconstitutional; hence the Courts of Law Amendment Bill currently before the Justice Committee. Judge Desai had 33 years of legal experience, 21 of which were spent on the Bench – if he was not fit and proper to sit on the Bench, the JSC would have received a complaint. The Committee could also not consider perceptions or hearsay. Judge Desai had an excellent history as an activist in human rights and was a fit and proper person to become SA’s future Public Protector, in terms of Section 193.

Ms Van Damme noted that much had been said about the garnishee order judgement as if Judge Desai went on a one-man crusade to bring down garnishee orders when he did not. The case was fought and pushed for by a private citizen when all Judge Desai had to do was give a judgement and any other judge, in reading the law, would have given the same judgement so he should not be portrayed as a hero. Looking at the record of Judge Desai, with his much referenced 31 years experience on the Bench, he only had 33 reported judgements which was essentially one judgement a year. Compared to the other judge in the running, Judge Weiner, she had been on the Bench for four years and had 77 judgements. SA could not have a Public Protector which delivered one judgement a year when there were so many issues facing the country. Someone was needed who was able to turn out a number of reports. On this basis alone, Judge Desai was not suitable.

Mr Horn thought it was quite clear from debate that Judge Desai was not the consensus candidate – there were certain issues standing out from his candidature which could not be overlooked. Objectively, Judge Desai did not withstand the scrutiny of the Committee and, by his own admission, he would remain a controversial figure. Judge Desai also said he had run ins with other judges in tea rooms and he gave the Committee a clear picture of his personality and his unsuitability to keep a cool and level head which the Committee looked for in a Public Protector. In earlier discussion, Dr Maesela said the Committee was not looking for a crime buster but a nation builder and, ultimately, the probability would be that Judge Desai, as Public Protector, would not serve as nation builder.

Mr Swart noted that the Committee might have forgiven Judge Desai, but that did not mean there were no consequences for one’s actions. He did not answer questions correctly in relation to incidents of rape which was a very pertinent matter. As he discussed with Judge Weiner, the issue with judges was that they had outstanding business, judgements to be delivered and there were concerns with Judge Desai about his judgements being late. The point was that judges could not hit the ground running and this was a great concern. When weighing everything, Judge Desai was a great judge. It was also correctly pointed out that he was not the one bringing the legal action against the garnishee orders although he correctly made a progressive judgement. In his own words, Judge Desai said he was controversial and not a popular judge and this brought into question whether one wanted this legacy brought forward to the Office of Public Protector. Perhaps he should remain and be an excellent judge on the Bench where he had given progressive judgements.

Mr Shivambu felt that the outburst of Judge Desai’s was not just an incident but a reflection of who he was – he admitted he has a colourful character but this temperament was not suitable for an office which would be subjected to public scrutiny and heavy criticism on a constant basis, so Judge Desai should not be considered. Another question he did not answer satisfactorily was whether the President of the ANC was in the wrong with regards to the Secure in Comfort report. When the question was repeated to him, his answer was that the national government was in the wrong. This was his answer despite knowing that the Constitutional Court found the President had failed to uphold and respect the Constitution – instead Judge Desai chose to walk on eggshells around politicians. One of the achievements of the incumbent Public Protector was her courage to deal with public representatives, including the President, and this was what brought so much attention to the incumbent. A person walking on eggshells around politicians just in an interview could not be trusted – it looked as if he got assurance from somewhere and did not want to bring any offence. He should have demonstrated far more courage than he did in the interview. Mr Shivambu was also not satisfied with Judge Desai’s response on how he would practically manage the institution of Public Protector – Judge Desai should fall.

Adv Busisiwe Mkhwebane
Mr S Mncwabe (NFP) observed that this candidate was outstanding during the interview. She was a very brave, but young, black female. What caught his eye was that she had worked for the Office of Public Protector before as a senior investigator in Gauteng. This showed that she would be clear on what was happening in the Office, the nature of the cases the Office dealt with and the nature of clients in the Office which was the public. He was of the view that she was the best candidate the Committee could recommend and that she could give the public what was needed from the Public Protector. She would be able to do exactly what the current Public Protector was doing to protect the public and ensure the Office itself got the recognition it deserved. He fully supported this candidate.

Ms G Tseke (ANC) proposed that Adv Busisiwe Mkhwebane be recommended as the next Public Protector. She said this because although she was the youngest of the five shortlisted, her CV spoke volumes and she was a woman.SA was not doing well in terms of gender equality – the country was ranked 18 out of 142 countries in terms of gender equality. It was the responsibility of government and Parliament to ensure that women were represented in all decision-making bodies in the country. Adv Mkhwebane had a sound understanding of the PFMA and all procurement Acts and this, therefore, made her a very good candidate for the post of Public Protector. She had good managerial and administration skills and, above all, her communication skills were excellent. She answered all the questions Members posed, even remembering the names of all Members of the Committee. She had a fine brain and she recommended the candidate as the next Public Protector. She had experience in the Office of Public Protector having worked there as a senior investigative officer and as the acting provincial head in Gauteng. She was in the Human Rights Commission and had worked in the Departments of Justice and Home Affairs – she had a lot of experience to serve in the post of Public Protector. Adv Mkhwebane was a good candidate for the Committee.

Prof Msimang reminded Members that he was the person who nominated Adv Mkhwebane and upon hearing the comments, he felt as if he should pat himself on the back for doing a good job. He endorsed every word said about her so far. During the interview, he was surprised that she was so young but he was even more surprised by the way she dealt with the interview – the media described the process as gruelling but Adv Mkhwebane responded very positively and answered questions with a smile – he thought this was a quality of maturity despite her age. She was also a lady of guts because at that age, she had the guts of representing SA in China and, from what the Committee knew, she did not disappoint. As others had pointed out, she was quite familiar with the Office of Public Protector having worked there for seven years not just as an ordinary clerk but as a senior investigator which exactly characterised the nature of the office. It was also pleasing to know she had worked at the Human Rights Commission which was very relevant to the institution of Public Protector. He strongly endorsed Adv Mkhwebane as the future Public Protector of SA.

Mr Koornof commended Prof Msimang for proposing Adv Mkhwebane but, for the record, she was not the youngest candidate. There was no doubt she had a good CV and excelled at the interview – he was very comfortable that she would be a good candidate.

Ms Mothapo thought Ms Busisiwe Joyce Mkhwebane conducted an impeccable interview, was very mature emotionally and, among the women, she was the best. She was from the University of Limpopo, having done an LLB there, as well as being a senior investigator for more six years, senior researcher in the Human Rights Commission and brought to the Office of Public Protector a variety of expertise. She cautioned the Committee against its repeated mention of age because the Bill of Rights highlighted one could not be discriminated against because of age. Adv Mkhwebane looked very mature, never got emotional during her interview and she therefore did not hesitate to recommend Adv Mkhwebane.

Mr Bongo outlined that Adv Mkhwebane worked in the Office of the Public Protector in the past so she understood the issues of the office. Her experience in Home Affairs exposed her to issues such as audits. One of the main issues in the Office of the Public Protector was the backlog so getting someone who was exposed to being a senior investigator in the same space would assist the institution in running smoothly. He was most impressed with her answer to the question about the Public Protector vis-a-vis the state – she had a clear understanding of what the Constitution and the Act said on that. She also had some international experience while in Home Affairs conducting some diplomatic missions in China in the national interest. He endorsed Adv Mkhwebane as being the candidate the Committee recommended.

Mr Horn, personally and speaking on behalf of the DA, was feeling a bit ambivalent about Adv Mkhwebane. Objectively speaking, Adv Mkhwebane had a very good interview and this was quite impressive. Also in terms of her CV and meeting requirements set by the Act, no fault could be found. However, he cautioned the Committee on placing too much emphasis on her experience as a senior investigator at the Office of Public Protector – without meaning any offence, the fact was that the benchmark, and the way the office operated, only came into existence after Adv Mkhwebane left as an investigator. After the appointment of Adv Madonsela, the way the office operated changed. Prior to the incumbent, complaints to the office were not handled as intensively and, ultimately, one had the impression that the office always aimed not to be too harsh on government. His opinion was that because Adv Mkhwebane was an investigator during that specific time meant it was not necessarily to her advantage. He thought Adv Mkhwebane was primarily a civil servant – whilst this might have given her good experience and operational knowledge of the PFMA and perhaps specific insight on maladministration and even corruption, the fact was that it did not necessarily give one the best legal experience. The Act called for a candidate with legal experience and on this point, Adv Mkhwebane perhaps stood behind certain of the other candidates in the queue. Lastly, one aspect which was problematic in terms of her interview was that she did not really give a good explanation why she left the position of Director at Home Affairs to become a mere analyst at the SSA. Her answer was that she was just so passionate about the Constitution that she felt the SSA was the best place for her to go and protect the Constitution. He ventured to say this was an unsatisfactory explanation given the specific current climate and the way South Africans out there perceived the SSA at the moment. There was a securitisation of SA society where ordinary South Africans felt Big Brother was constantly watching, not necessarily in the interests of the state but in the interest of certain people within the governing party. Therefore, he felt the Committee could not turn a blind eye to Adv Mkhwebane choosing to be employed by the SSA at this very critical juncture in SA’s journey to becoming a fully fledged, mature, constitutional democracy.

Dr Maesela felt the Committee should place value judgements aside as they were informed by subjective moral and aesthetic values. Members should try to be objective in the process and to judge according to what was known and what was there instead of expectations. He thought Adv Mkhwebane was a fit and proper person to hold the Office of Public Protector because she had experience in the office and had experience as a civil servant – these facts were not based on value judgements but objectivity. Adv Mkhwebane also understood the threefold lines of society, namely, poverty, inequality and unemployment as experienced injustices. The Office of the Public Protector required a high degree of integrity and characteristics of honesty, principle, honour, scrupulousness, reputability, truthfulness, trustworthiness and uprightness – these were the qualities Adv Mkhwebane actually displayed all her life because if there was anything pointing to the contrary, it would have come out. If someone understood and had done the work but was not 100% perfect, that person should not be pulled down – the fact that Adv Mkhwebane had reached this stage of the process proved she passed the litmus test.

Mr Malema, after listening to the interview of Adv Mkhewbane, immediately tweeted that she was one of the good candidates and he was very happy until he received a tip-off that she was actually the preferred candidate of President Zuma. By the way Adv Mkhwebane presented herself he could not buy into that argument. He also reminded himself that President Zuma would be leaving at some stage and decisions could not be made as if he would be the permanent President of SA. Adv Mkhwebane would be a Public Protector beyond the term of President Zuma so even if she was his preferred candidate, he would leave at some point. Furthermore, the institution of Public Protector was well established with rules, established practices and independent investigators – if Adv Mkhwebane tried any shenanigans, the institution itself would expose her for who she was. This made him comfortable to recommend Adv Mkhwebane. Many things were also said of the current Chief Justice before he was appointed, with remarks about how close he was to President Zuma but today he was one of the best. Today when someone wanted to discredit someone else, all one needed to say was the person was close to President Zuma and everyone would then run. What Adv Mkhwebane did in her interview dismissed all rumours and she should be given an opportunity. Mr Bongo put her under huge pressure during the interview and he thought she was going to break and become emotional but she came back nicely in a cool-headed manner. This was what was needed when placed in a difficult situation – the ability to rise above and still provide leadership. If anything, Adv Mkhwebane was very close to what was seen in Adv Madonsela. If she was indeed close to President Zuma, she should run away from such things and concentrate on the Office of Public Protector to serve the people of SA. He agreed that she be recommended.

Ms S Mchunu (ANC), while not a Member of the Committee  but had followed the process closely, said Adv Mkhewbane came across as a very strong candidate. In her she saw a well-rounded person who was young, black, female and experienced. She was very grounded, honest and sounded ethical. Therefore, she strongly recommended Adv Mkhwebane for the position of Public Protector.

Ms Breytenbach noted that while Adv Mkhwebane had a good interview, had legal qualifications and some measure of experience, her experience as a senior investigator should not be overstated as had been by some Members because an investigator was not an independent, decision-making position in the Office of Public Protector and it was also not a managerial position. If the legal experience of Judge Weiner was found to be wanting, then certainly the legal experience of Adv Mkhwebane must also be found wanting. She was a public prosecutor for two years, then a legal administration officer, then a researcher, then an investigator, then a director in Home Affairs where her career had been until her current position as an analyst for SSA. She did not have a semblance of the kind of experience Judge Weiner had. However, this was not Ms Breytenbach’s greatest concern because there was not a lot to be found wrong with Adv Mkhwebane. Her greatest concern was that she changed jobs from a reasonably high flying position in Home Affairs as Director to a relatively low-level position in SSA as an analyst. This was of deep concern. She also received the same tip-off as Mr Malema about Adv Mkhwebane’s connection to the President and this was also of deep concern. Adv Mkhwebane could not provide even a remotely satisfactory answer for her change in jobs and for this reason, Ms Breytenbach could not support her as a candidate.

Mr Swart agreed that her changing of jobs from a Director in Home Affairs to an analyst in SSA, was concerning and that she could not answer the questions in this regard – this would have to borne in mind. Having said this, Adv Mkhwebane was probably the candidate with the broadest consensus across political lines and this was an important issue in finding a consensus candidate. He pointed out that when previous Public Protector, Adv Mushwana, a previous ANC Member of Parliament, did not investigate the Oilgate issue, the courts instructed him on what to do. Thus one could always fall back on the courts particularly in view of the EFF-DA Constitutional Court ruling which clearly set out the duties of the Public Protector. If there were any shenanigans, they could be exposed in a court of law in review of any decisions which might be suspect. At this stage, Adv Mkhwebane was the candidate which enjoyed the largest degree of consensus amongst those present.

Ms Van Damme thought there was no dispute that Adv Mkhwebane gave an excellent interview and she was quite encouraged that a young female did so well in an interview but she was very uncomfortable with her experience. Looking at the other shortlisted candidates, these people had lots of legal experience while Adv Mkhwebane never actually practised law especially when compared to the other candidates. To be fair, the candidate recommended needed to have the requisite experience and Adv Mkhwebane was a civil servant, not a lawyer. The other issue was her working for the SSA. This past weekend, the Executive Director of the SSA resigned citing political interference at the Agency. If the head of the Agency was complaining of political interference, this could be something Adv Mkhwebane had experienced too but did not seem to have a problem with, although not proven. These two points, made her very uncomfortable despite the fact that Adv Mkhwebane had a good interview.

Mr Shivambu noted that in the judgement that settled the remedial action powers of the Public Protector, Chief Justice Moegoeng said the Public Protector was the embodiment of the biblical David. He hoped the rumours of Adv Mkhwebane’s political connection to high-level office bearers, would not make her a biblical Goliath because it would bring her down. He trusted she would truly be a biblical David to stand against the most powerful and well resourced. Adv Mkhewbane, during her interview, was one the few candidates to talk about the accessibility of the Office of Public Protector to the most rural areas. A Public Protector was needed who could deal with such issues including local government matters and using community radio and the public broadcaster, to reach as many people as possible. She also spoke about the utilisation of the SA Local Government Association (Salga) and the maximal utilisation of the resources that were allocated to the Office of Public Protector to further expand access. Adv Mkhwebane was experienced, patient and had the correct temperament – she should be recommended to the President to make the appointment.

Adv Muvhango Antoinette Lukhaimane
Mr Shivambu thought Adv Lukhaimane would have been a good candidate but there was broader consensus around Adv Mkhwebane. Adv Lukhaimane could be appointed as Deputy Public Protector. She did very well in the interview particularly on expanding the accessibility of the Office of Public Protector which he thought was a most important aspect.

Mr Horn though the Committee should also be impressed with Adv Lukhaimane’s dealing effectively with the backlog at the Pension Fund's Adjudicator. Currently, the Office of the Public Protector was struggling with backlogs which, from year to year, did not seem to be dented in any way. Additionally, Adv Lukhaimane, objectively speaking, had a very good interview. The Committee should seriously consider her administrative capabilities to effectively deal with backlogs.

Mr Koornhof agreed – Adv Lukhaimane arrived for her interview at 2am but she was full of energy, there was no doubt she was a go-getter and that she was really excelling at the Pension Funds Adjudicator. It was a privilege to listen to her interview and she was definitely a candidate, if not appointed as Public Protector, would go places.

Ms Breytenbach thought that while Adv Lukhaimane lacked experience, she had a very good interview – she had the distinction of efficiently and effectively working through the backlog in the office in which she currently worked and this was a positive point the Committee should seriously give some thought to. She had a very good temperament, was impressive in her interview and for a young person in an intimidating environment, she did well. She did however lack experience in practising law and general experience which should be considered. Overall, Adv Lukhaimane was certainly a candidate one could support.

Mr Swart also thought Adv Lukhaimane had a very good interview and served very well at the Pension Funds Adjudicator. Adv Lukhaimane also served for four years as a general manager at the SSA – something to also place on the table for consideration. Adv Lukhaimane had a very good interview and if appointed, she would be a very good Public Protector.

Mr Masando felt Adv Lukhaimane would really be able play a meaningful role in a deputy position. She had a very good interview and demonstrated great potential.

The Chairperson asked that Members be mindful that the Committee was not looking to fill the position of Deputy Public Protector – there was already an individual in this position.

Ms Van Damme said that she was a bit uncomfortable with arguments put forward that some women should stay where they were because that was where women were needed. If women wanted to move forward in their career they should be allowed to and gender should not be a limitation. Adv Lukhaimane was personally one of her favourite candidates – she had a clear mind for learning as displayed by her amazing CV where she had several legal qualifications and, compared to the other candidates, she was very well qualified. Adv Lukhaimane would be very well suited for the position of Public Protector.

Prof Bongani Majola
Mr Shivambu was concerned about the response of Prof Majola to the question of the funding model where he indicated that he would go to international and other donors to assist in financing the Office of the Public Protector. Prof Majola should not be considered. He was not impressed with Prof Majola’s lack of attention to detail around how the Office of the Public Protector was structured, what resources it needed and from where the money would come. Prof Majola said that he was not aware of how the finances worked in the Office of the Public Protector and that he would be briefed if appointed. In future, Prof Majola should familiarise himself with the environment of the job for which he is applying so that he had an idea of what he would be doing – he came to the interview unfamiliar with how the Office of the Public Protector worked. He should continue to teach post-1994 law at the University of the Witwatersrand.

Mr Bongo also picked up on the funding issue. The Justice Portfolio Committee strongly discouraged private funding from other countries even to the current Public Protector. The candidate for Public Protector also needed to be well versed on the way politics was moving in the country and to understand and navigate political dynamics. He raised this in light of Prof Majola turning down nomination for Public Protector in 2002 to move into the international working arena. Other than this, Prof Majola had a lot of experience with impressive legal qualifications. He may be considered for other missions.

Mr Swart agreed that Prof Majola had a very impressive CV and had gave a good interview. Key for him was that Prof Majola was the chief prosecutor at the International Criminal Court – SA should be very proud of this fact and it should not count against him. The nature of the work was investigative requiring the compilation of investigatory documents and findings on the basis of managing evidence. He thought Prof Majola was eminently qualified to take up the position of Public Protector. Prof Majola indicated that he would be able to hit the ground running as he had no other work to first tie up and was available to take up the position immediately. He thought the Committee should seriously consider Prof Majola for appointment as Public Protector.

Mr Mncwabe reminded the Committee that he proposed the name of Prof Majola because of his excellent CV. He was concerned that at some stage, Prof Majola was approached to avail himself for the position of Public Protector but declined to heed the request by then UN Secretary, Koffi Anan. This made him question the priorities of Prof Majola because there was a need for the Public Protector to show a sense of patriotism. His candidate remained Adv Mkhwebane.

Mr Msimang strongly endorsed that Prof Majola was a very broadly experienced and broadly qualified applicant. He liked the way he listened to questions and then gave answers – this gave the impression that Prof Majola was a very good listener which was very important. He was however disappointed with his answers to a question put to him by Mr Shivambu, which he also asked a number of candidates, about their contribution to the political struggle in the country. He agreed that as a magistrate, Prof Majola’s hands were tied and he could not do much but he was also a professor of law and eventually a dean. The professors Mr Msimang knew at the time, really expressed themselves on the abominable nature of apartheid and they did inspire their students to do what they could to fight apartheid.

Ms Mothapo noted that Prof Majola was her former Dean of Law at the then University of the North, now Limpopo. He was a very good academician with international experience. SA had a shortage of professors of law she therefore did not think it proper for the Committee to recommend Prof Majola for the position of Public Protector because it would be depriving future generations of a good academician. He should continue the good work he was doing at Wits in the academic fraternity.

Ms Breytenbach highlighted that the interview of Prof Majola was conducted at around 2.40am having been locked up all day. He came to the interview at that time of the morning and was gracious. He had an outstanding CV, impeccable legal qualifications and an impressive list of achievements. He represented SA with distinction at the UN at the rank of Secretary-General – this was something to be proud of and not to be punished for. Prof Majola did not say he chose that job above that of Public Protector – he said he had already committed to the UN job and was not prepared to go back on his word. This was an admirable quality and not something he should be punished for. Prof Majola had investigative, managerial and prosecutorial experience – factors all needed to do the job of Public Protector in a competent fashion. The fact that he said he might look for funding from donors was something he would learn was not allowed and so would not do if so appointed. The Office of the Public Protector had a very competent CEO and Ms Breytenbach was sure she would inform Prof Majola very quickly and correctly that this could not be done – it was not remotely realistic to hold this against him. Regarding the comments that he might have been a bit backward in coming forward during apartheid years to fight or defend his people, he said in the questionnaire that he was service oriented and had experience in dealing with the poor. During his six years at the Legal Resources Centre, he was part of an organisation whose mission and intervention was to protect the powerless and the marginalised in society and whose rights were ether violated or ignored. This showed that Prof Majola spent his time as a lawyer fighting for his people in the best way he could and used his skills as a lawyer – to punish him for this was unrealistic, unfair and disingenuous. In her view, apart from Judge Weiner, Prof Majola was the best candidate and she had no hesitation in endorsing him for the position of Public Protector.

Dr Maesela said he tried to ask Pro. Majola some leading questions to educate the Committee on the Great Lakes region - an issue Prof Majola knew best about and what he spent half is life doing. The issue of the Great Lakes concerned land and ethnocentrism but Prof Majola did not seem to know what D. Maesela was talking about. He raised this because a Public Protector was expected to understand the causative agents of those who break the law in terms of social parameters in order to be a better arbitrator. Prof Majola did his best but his best was not good enough.

Mr Malema was worried that Members were accepting of the answers of Prof Majola during the interview. The candidate should speak to the operations of the Office of the Public Protector and know what can or cannot be done. It confirms that Prof Majola had no idea what the Office was about and this was important for someone hitting the ground running. It could not be that a candidate still needed to be taught that money could not be sourced from outside the country – the Office was not a place to learn. Participating during the struggle was an important and an emotional issue for many. It could not just be dismissed that someone in a strategic position could not be located anywhere during the struggle. It meant Prof Majola did not see anything wrong and thought that the government had to do what it needed to.

Mr Horn reiterated that even the current Public Protector, whom most of SA held in high regard, had to learn on the job that donor funding was, at best, frowned upon and, at worse, not permitted in terms of the law so it was not really fair to hold this against Prof Majola. In his employment outside of SA, he represented the country. In terms of having a candidate understand current politics, according to the law, a Public Protector was needed who acted without fear, favour or prejudice – this in fact meant one would not want a candidate clouded by his or her understanding of the current politics. While he got the point of Dr Maesela that Prof Majola did not demonstrate an understanding of the broader social issues in the Great Lakes area, he thought it should stand Prof Majola in good stead that he ultimately said he would apply the law, as a prosecutor, to the facts he found. Ultimately one did not want a Public Protector who would take into account the social conditions which may lead to public officials making themselves guilty of maladministration or corruption. One wanted maladministration or corruption to be dealt with without fear, favour or prejudice. If a candidate’s judgement could be clouded by the social ills in society, the wrong candidate was being looked for. Ultimately, Prof Majola, in the early hours of the morning of his interview, demonstrated a gravitas and a stature that very few, if any, of the other candidates had. Looking objectively at the aura of Prof Majola, he most definitely would be the equal of the current Public Protector if he had to step into the office and perform the duties.

Committee Recommendation
The Chairperson noted that the time had now come for the Committee to make a final decision. She reiterated her appeal for Members, as far as possible, to find consensus in agreeing on one candidate. There were arguments raised for and against Judge Weiner – she wanted to get a view from the Committee whether she should be kept or dropped at this stage.

There was consensus by the majority of the Committee that Judge Weiner should be dropped.

The Chairperson noted that there were arguments raised for and against Judge Desai– she wanted to get a view from the Committee whether he should be kept or dropped at this stage.

There was consensus by the majority of the Committee that Judge Desai should be dropped.

The Chairperson noted that the Committee made many positive remarks about Adv Mkhwebane but she wanted to get a view from the Committee whether she should be kept or dropped at this stage.

There was consensus by the majority of the Committee that Adv Mkhwebane should be retained. The DA reserved its position on the candidate.

The Chairperson noted that there was a lot of suggestion by Members that in future Adv Lukhaimane may be considered but not necessarily at this stage – she asked if this was the agreement.

The majority of the Committee agreed

The Chairperson noted that there were arguments raised for and against Prof Majola – she wanted to get a view from the Committee whether he should be kept or dropped at this stage.

The majority of the Committee agreed Prof Majola should be dropped at this stage.

Without wanting to subject the process to a vote, the Chairperson found it very clear that Adv Mkhwebane was the preferred candidate of the majority of the parties represented on the Committee apart from the DA. This would be captured as such. She asked if it was the final decision of the Committee that Adv Mkhwebane was the name to be tabled to the National Assembly to be voted for by the House. She reminded Members that the recommended candidate required 60% of the Members of the National Assembly which meant it required 240 votes and the ANC had 249.

The DA noted its disagreement with the final recommendation of this candidate.

The Chairperson indicated that this would be reflected. She did not take the contributions of Members lightly and appreciated that the process was not easy. She found that when Members conceded on some candidates that they felt strongly about this was a sign of maturity – she congratulated the Committee on this.

She would now sit with the administration of the Committee to prepare a comprehensive report that would be sent to Members in advance. Members could also forward any contribution they would like to make to the report.

Mr Shivambu highlighted that in terms of programming, in the Chief Whips Forum, there must be agreement on which items go to the National Assembly for tabling. The Chief Whips Forum did not say there was any consideration of the Report of the Public Protector recommendation – the Forum should be requested to table the report.

The Chairperson thought this was a sound suggestion.

Ms Mothapo noted that the Committee was to respond on or before 31 August 2016.

The Chairperson said that between now and then the Committee would have to work very hard on the report. There would also be an opportunity for debate in the House.

She remarked that Public Protector was expected to act without fear, favour or prejudice. The recommended candidate should find her own moral compass in the event she found herself in a dilemma. She hoped this message was unambiguous.

The meeting was adjourned.

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