Deputy Public Protector appointment: shortlisting for interview

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Justice and Correctional Services

24 October 2019
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

The Portfolio Committee conducted the shortlisting of candidates for interview to fill the Deputy Public Protector vacancy. Out 19 candidates, eight nominees were shortlisted: Adv Sonwabile Mancotywa; Adv Kholeka Gcaleka; Adv Shadrack Nkuna; Adv Puleng Matshelo; Mr Buang Jones; Mr Moshoeshoe Toba; Adv Lwazi Kubukeli; Adv Noxolo Mbangeni.

In the discussion, the Economic Freedom Fighters asked that the shortlisting of Adv Kholeka Gcaleka for interview be reconsidered. This was especially in light of matters raised by Corruption Watch in its research paper on all the candidates. The DA and the ACDP also noted disquiet. It was questioned why of the 19 eligible candidates, a person with such  baggage should be shortlisted and the Committee was reminded of the legal requirement of rationality. However, others Members argued that no state institution has found the person in question not to be a fit and proper person and everyone is allowed the presumption of innocence. The Committee agreed that the eight shortlisted candidates be interviewed.


Meeting report

Opening remarks by Chairperson
The previous day the Committee decided that it would shortlist a maximum of eight people to be interviewed on 12 and 13 November for the position of Deputy Public Protector. It also adopted criteria. Today, names will be proposed based on the proposed criteria.

Adv T Mulaudzi (EFF) explained that Mr Ndlozi will be representing the EFF in this process.

The Chairperson asked for procedural guidance from the Committee Secretary on this.

The Committee Secretary highlighted that the question is whether matters have to be voted upon because only Committee members can vote.

The Chairperson queried whether Mr Ndlozi will be voting.

Mr M Ndlozi (EFF) replied that the EFF has a letter that should have been sent to the Committee Secretary containing these details from the EFF Chief Whip. The letter indicates not only that he would be on the panel, but that he would be the main member for the Committee as well.

The Chairperson said that he thinks that, procedurally, the request is in order.

Shortlisting for Deputy Public Protector interviews
The Chairperson requested that Committee members putting forward names for interview

Ms J Mofokeng (ANC) nominated Adv Sonwabile Mancotywa.

Mr X Nqola (ANC) nominated Adv Kholeka Gcaleka

Adv G Breytenbach (DA) nominated Adv Shadrack Nkuna.

The Chairperson said that if the Committee goes beyond eight nominees, it should devise a mechanism to keep to eight candidates.

Ms N Maseko-Jele (ANC) nominated Adv Puleng Matshelo

The Chairperson asked the Committee Secretary to indicate when eight candidates have been nominated.

Ms W Newhoudt-Druchen (ANC) nominated Mr Buang Jones.

Dr Ndlozi nominated Mr Moshoeshoe Jeffrey Toba.

Mr H Mohamed (ANC) nominated Adv Lwazi Kubukeli.

Mr W Horn (DA) nominated Adv Noxolo Mbangeni.

The Chairperson indicated that the Committee has the required number of candidates. These candidates will be interviewed on 12 and 13 November as agreed.

Dr Ndlozi asked if Committee members are allowed to poke holes in certain nominations and make alternative suggestions. There is a name that he feels strongly about that should not be shortlisted.

The Chairperson replied that discussion of the nominees is allowed so that when the Committee does the interviews, suitable candidates are interviewed.

Adv Breytenbach agreed with Dr Ndlozi. One approach is to poke holes in the candidates until the list of candidates has been whittled down to eight nominees. Unless the Committee would like to close the list at this point, there are other candidates which the DA feels quite strongly about.

Mr Q Dyantyi (ANC) said that while he completely understands the need to interrogate each of the shortlisted candidates, it would be interesting to know what approach Members would use that is not based on speculation or assumptions. The document that was compiled based on the criteria set out indicates that these are people that have passed that test. While a discussion should be welcomed, it is difficult to know where such a conversation would take the Committee. It may not be the ideal time for that type of discussion. It may be necessary for the Chairperson to provide the Committee with some leadership on this.

The Chairperson replied that the best approach in the scenario would be that the Committee nominates more than eight candidates and then finds a mechanism to bring the list back to eight nominees. In that instance, a discussion would be unavoidable, unless the Committee agrees to extend the number of shortlisted candidates to beyond eight nominees. The decision, however, was that the Committee sticks to eight candidates. So far, there are eight nominees unless there is a view to add others. Once the Committee has held the interviews in November, it will have a discussion where Committee members would need to convince one another to arrive at a single candidate. Having eight people is not a train smash.

Mr Ndlozi agreed that the Committee would have to avoid discussing credentials because everyone qualifies. The Committee needs to be open to persuasion. When persuasion fails, the mechanism that is available to the Committee is the vote. The criteria on which these candidates qualify should no longer be the basis for discussion. This means that the discussion has to be based on other aspects. He asked why interview eight for one vacancy? Let us save people from having to come here and have the Committee harass them. Let us canvas the ground, including these names.

The Chairperson suggested that the process needs to be robust and the people of South Africa need to see that Parliament has appointed the best. It would be very good to have a situation where the eight have been robustly engaged. After that robust engagement, where the candidates would have an opportunity to respond, the Committee could then have a discussion to determine which candidate makes it and which candidates do not, and why. It would be preferable that the robustness of the Committee’s discussion takes place after the interviews. Moreover, there seems to be no party that wants to go beyond the eight nominees. Yesterday, the Committee had a lengthy discussion and all parties agreed that 19 candidates could not be interviewed. During the interviews, the Committee will roast those that appear before it. It was agreed that there will be eleven questions. Each Member will have the right to ask a question. There will also be a maximum of 2 follow-ups so that the Committee can probe more deeply into a candidate's suitability. The Committee has, therefore, come to the end of the selection process.

Dr Ndlozi attempted to persuade Mr Nqola to reconsider the candidate he nominated, Adv Kholeka Gcaleka.

The Chairperson requested that all eight candidates appear before the Committee. The EFF would then have an opportunity to raise questions. Corruption Watch has raised concerns. It is important that the applicable candidates respond to and account for those concerns raised about them. After the interview process, the Committee would then be in position to have a robust discussion and agree on the one person. It would be a repetition to demotivate now and on the day of the interviews.

Mr Dyantyi said that he shared the passion of Dr Ndlozi. The Committee is embarking on a process that should be, and should be seen to be, fair. The element of fairness comes in when candidates are given the opportunity to speak for themselves. To make a decision in the absence of the person in question is already unfair. One might even be seen to be casting aspersions. Concerns that Members would like to raise would be better placed for raising in the presence of the individual to whom it applies.

Dr Ndlozi said that all 19 candidates qualify. The shortlisted candidates, especially this name, should go through the pre-determined eye of the needle before the interview. It is not enough to subject them to an interview. There are serious problems with Adv Kholeka Gcaleka as a candidate. As he has a problem with this candidate, there needs to be a motivation why she needs to be interviewed in the first place. Her history in the various departments as a legal advisor are substantial. He doubted whether he would complain about the State in front of a person with this record. The Office of the Public Protector should inspire ultimate independence and proper judgement in relation to the law. They must pass the highest ethical test. There is a fundamental problem with shortlisting her for this position. Let the Committee interview people who are beyond reproach so that it need not debate the person's history in working for certain Ministers. Does the Committee really want to debate that by interviewing people with such a baggage? The Committee has 19 names of South Africans who are capable as she is – but with a better history. 

Standing firm on the nomination of his particular candidate, Mr Nqola appreciated the concerns raised by Mr Ndlozi. While engagement is important, he noted a few facts about the candidate. Firstly, in terms of the criteria set when going for a public advertisement for applications and nominations, the candidate undoubtedly meets the criteria. Secondly, what was presented yesterday in the Committee about character, skills, knowledge, and experience, the person is undoubtedly suitable. Thirdly, the Corruption Watch document flagged some of the candidates. These concerned allegations, comments, and names being dropped. However, no state institution has found the person in question not to be a fit and proper person. We must not ignore the supreme law of the country under section 35 which says that everyone is innocent until proven guilty, namely, the principle of the presumption of innocence. These are people that will be subjected to questioning by this Committee. The design and structure of the questioning allows the Committee to pose more questions if it thinks there is a need to pose more questions to a particular candidate. In the interview, Dr Ndlozi will be given the opportunity to prosecute the matters flagged by Corruption Watch, which is a non-government entity that has its own convictions of what happens in society. Therefore, what has been flagged by Corruption Watch is not an adjudication of what is the fact. It does not give a last and final determination.

Mr Dyantyi said that there is another layer of vetting even before the Committee comes to the interviews.

The Chairperson asked if the Committee could agree that it has eight candidates? If there is to be a ninth candidate, if Committee Members are not persuaded, all these candidates would be rigorously interviewed so that the Committee ultimately has one. Concerning the allegations raised, Corruption Watch has done a very good job. The Committee has asked the public to make comments. Corruption Watch was part of civil society that has responded and it has really helped the process so the Committee has a better idea as to who is the best Deputy Public Protector. The Committee will allow the process to unfold and rigorously engage with the candidates, which need to respond to the allegations made against them. If the Committee is not convinced that the candidates have responded properly or adequately or do not represent honesty and integrity, they will not appoint them. While Mr Nqola stands firm on his candidate, there will still be a process of elimination after the interviews.

Mr Horn remarked that the DA would not necessarily have selected all eight of these shortlisted candidates. However, that is the nature of the beast. The Committee is prepared now to go into the interview phase where whatever is of worry to the DA about the fitness or properness to sit in that chair will be canvassed with the candidate. The Committee must enter that process with an open mind. For the sake of the record, the DA does not endorse all eight candidates. But this is the nature of the beast and the DA will go into the interview process.

The Chairperson stressed that the most important word that can be taken from Mr Horn’s comment for the Committee to bear in mind is ‘open-mindedness’. The Committee has the intention of ultimately appointing the best. South Africa deserves the best.

Mr S Swart (ACDP) emphasized that the Committee should bear in mind that this ought to be a rational process. There was an invitation that the public should comment. Corruption Watch has commented as they did in the Fifth Parliament. To echo Dr Ndlozi, the question is to what degree has the Committee applied its mind to these comments about certain nominations as opposed to other nominations? To a certain degree, Dr Ndlozi's concerns are shared. It is appreciated that there will be an interview process, but even at this stage, a candidate that has no negative allegations could question why he/she was not shortlisted, whereas, a person who has negative comments was shortlisted. The Committee should be mindful of the legal requirement of rationality. The ACDP does not necessarily agree with all the shortlisted candidates but it appreciates that the process was agreed upon beforehand.

Dr Ndlozi said that, in the last five years, the Committee would have been witness to the advisory roles that the candidate in question would have played. On several occasions, the EFF had raised this on different platforms, including the Portfolio Committee on Public Enterprises. The Committee’s mind should not be open when it comes to this candidate. It is not a question of credentials. According to the Public Protector Act, all 19 candidates meet the requirements. The Committee should ask the question: why were these eight candidates nominated? This Committee has not asked why the eight out of the 19 candidates. It just nominated eight candidates without motivating the nomination. The problem was raised that among the candidates, there is a candidate that has questions. Apart from what Corruption Watch has said, Parliament over the last five years has questioned the role of this candidate as an advisor to a Minister. Does the Committee really want to shortlist this candidate when it has 19 candidates to choose from? If Members are not persuaded, can the EFF go on the record as objecting to the shortlisting of the candidate in question. The EFF does not object to any of the other names, except this candidate. The EFF will be vindicated.

Mr Mohamed said that he has no idea who Adv Kholeka Gcaleka is except on paper. In response to Mr Swart and Mr Ndlozi, they were not part of the deliberations that the Committee had in yesterday's meeting. The Committee has taken a number of concerns into account, especially procedural correctness. In shortlisting, case law has indicated to the Committee that the criteria must first be set before it looks at numbers. Further, all the candidates need to be pre-listed. There are also logistics. After deliberations, the Committee arrived at a number of eight or less. There have been substantive deliberations on the criteria that qualify a candidate. The Committee must be very careful when it raises concerns in terms of lived experience or comments by NGOs that have not been subjected to the objective jurisdiction of facts or proven empirically, unless there is a document that indicates otherwise. These are subjective comments. Let us engage with the candidates.

The Chairperson noted that the Committee did circulate and agree to the criteria. It is assumed that Members were nominating based on those criteria. The fact that Members did not object to other names or demand that there must be further motivation is because there is a presumption that Members nominated based on the criteria. The name Dr Ndlozi is objecting to is because, in his understanding of the criteria, he thinks that this member does not qualify. The Committee has applied itself in that regard. The matter has been ventilated. Dr Ndlozi has asked that the objection of the EFF be noted to this name. There is no objection to other names. If there were an objection to other names, the matter would have been ventilated. On that particular name in question, Committee members have attempted to persuade one another. In the absence of agreement, the objection is noted and the Committee will proceed with the interviews where the Committee will probe the fitness of the particular person to hold office. In that process, if the Committee is not convinced of any person, it is possible that all of them are not fit.

Mr Nqola reiterated that the meeting yesterday agreed that all the shortlisted candidates are going to be subject to pre-screening before attending the actual interview. By 11 and 12 November, the Committee will be in possession of any allegations that have been raised against candidates in that screening.

The meeting was adjourned.

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