Deputy Public Protector appointment: interviews Day 1

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Justice and Correctional Services

12 November 2019
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Video: Deputy Public Protector Interviews, Parliament: 12 November 2019

The Committee interviewed four candidates for the position of Deputy Public Protector: Adv Shadrack Nkuna, Mr Buang Jones, Adv Moshoeshoe Moshoeshoe and Adv Noxolo Mbangeni
 

Meeting report

Interview 1: Adv Shadrack Nkuna
The Chairperson asked the candidate to introduce himself, explaining his value system and the experience he would bring to the position; to state the experience he has in championing constitutional values and fighting corruption; to confirm his disclosure in the questionnaire and to elaborate on anything he wishes to. He stated that there was an important case, the Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly (2016). The Constitutional Court judgment in this case had a fundamental impact on the Office of the Public Protector. He asked what the impact of the judgment was.

Refer to audio for interviewee responses

Adv G Breytenbach (DA) asked what the candidate understood the Judges Rules to be. The job of a Deputy Public Protector is defined in part by legislation and largely by delegation by the Public Protector. There are challenges between the current Public Protector and Deputy Public Protector, that the Deputy is being side-lined in many important investigations and not being consulted. She asked how the candidate would manage the relationship between himself and the Public Protector, particularly on the delegation of duties; how he would see his job as a Deputy Public Protector; and what type of powers he expects to be delegated to him.

Mr X Nqola (ANC) asked what the candidate’s understanding is of a fit and proper person and what qualities a fit and proper person has; whether the candidate draws a significant difference between being fit and proper as an advocate to being fit and proper to hold a public office, and if there is, what that difference is. He asked what good governance is and what contribution the Public Protector’s Office can make in ensuring good governance.

The Chairperson asked how many people report under the candidate.

Mr S Swart (ACDP) stated that the Public Protector should investigate corruption in terms of the Prevention and Combating of Corrupt Activities Act, the Executive Member’s Ethics Act and the Protected Disclosures Act. He asked if the candidate would investigate any person without fear or favour, regardless of their political affiliation; and if he would have the courage to investigate right to the top level of politics should the need arise. The Public Protector can only investigate to a certain extent and then with as with the state capture inquiry the matter is referred to the Hawks and the National Prosecuting Authority for further investigation and prosecution. To date, the State Capture Report by the previous Public Protector has resulted in very few prosecutions. He asked how the candidate would ensure that his reports against high ranking political persons are acted on by the Hawks and the NPA, keeping in mind that these are separate departments which may constrain his work. There should be a memorandum of understanding to ensure that action is taken. In the Public Service administration, a high standard of professional ethics is required in the public sphere. Have you prosecuted anyone in terms of section 34 of the Prevention and Combating of Corrupt Activities Act in relation to the R100 000 provision, and if not, why?

Mr W Horn (DA) asked how, in his remedial action, the candidate would deal with a situation where after investigation, he concluded that there is a specific law which enables maladministration and corruption rather than preventing it. The candidate was asked, given the limits on the Public Protector to do investigations into maladministration and corruption, how he will determine the suitability of senior officials in municipality on his own. There is a perception that the Public Protector’s Office currently finds itself in a difficult space, because a lot of what it deals with and what it embraces through investigations has to do with factional battles. He asked how the candidate would manage the situation.

Ms N Maseko-Jele (ANC) stated that the current position needs someone who is aware of the economic and social challenges that South African society faces and someone who is passionate in their desire to address these challenges. She asked the candidate to explain what some of these social and economic challenges are; and what the candidate would do to ensure the Public Protector’s Office makes a genuine impact on the lives of ordinary South Africans. The Public Protector must be neutral and must not align with a political party, however there are perceptions that arise that may be untrue. She asked how he would deal with a situation where there are unproven perceptions, in line with protecting the Office of the Public Protector.

Ms J Mofokeng (ANC) asked what the candidate would do if the Public Protector does not assign him any roles; and what the role of the Public Protector is on the Executive Members Ethics Act.

Dr M Ndlozi (EFF) asked which skills the candidate revolutionised. What is the legal principle in dispute in the Public Protector court case with Pravin Gordhan about the suspension of the remedial action. Should the remedial action of the Public Protector be suspended, and if he sees any problem with that as there are big implications to that and any politician can make an urgent application for suspension. Police stations are known to be key centres of corruption and the candidate has worked for the police for eight years. He asked if the candidate has witnessed any corruption at the Hawks and if he has reported it. Can the Public Protector take binding remedial action on the NPA? Why? Is it true that politicians constitute Parliament? He asked what the candidate meant when he said that he reports to Parliament and not to politicians. In terms of legal standing, hierarchy within the legal fraternity is very important. There is a lot of disregard for people who do not come up through the ranks and the Public Protector’s Office requires people that command huge respect, not only in the legal fraternity but in society in general. He asked if the candidate is senior enough for this position and what would make him sufficiently senior.

Ms W Newhoudt-Druchen (ANC) asked what the candidate’s understanding is on the role of Chapter 9 institutions within the constitutional architecture; where there is possible duplication between the mandate of the Public Protector and other Chapter 9 institutions; how he would improve coordination and cooperation with other Chapter 9 institutions – are there benefits of working closely with these other institutions?

Adv H Mohamed (ANC) asked what approach the candidate would take – would he wait for the Public Protector to delegate roles to him or would he take up these roles by himself. He asked if the Public Protector must be a public adjudicator between citizens and the state or if the institution has a more investigatory role requiring proactive action in certain circumstances. How? Would you predetermine the criteria? What are the key challenges the Public Protector is currently facing and what are your suggested mitigation strategies? What strategies would the candidate devise to achieve a clean audit?

Mr Q Dyantyi (ANC) said that there is a contradiction in the candidate’s statement that he is politically aware and that is apolitical – are these different terms? Did the candidate mean to say non-partisan and not apolitical? He asked what the candidate would do if all his visions for the Office were put aside by the Public Protector. If one of the Public Protector's 2019/20 performance indicators was overachieved by becoming the president of the African Ombudsman Mediators Association, would the candidate see this as an achievement of the mandate of the Public Protector? If the binding nature of a remedial action is absolute; what advice would he give to the Public Protector about the ballooning exorbitant litigation costs? State why the Committee should appoint him, allowing him to move from level 12 to level 15?

Dr Ndlozi said that to avoid prejudicing the candidate, he should be given an opportunity to respond to Adv Breytenbach’s disclosure.

The Chairperson asked if the candidate has a comment on the disclosure made by Adv Breytenbach and if he had a comment on the interview, in general.

The Chairperson said that the matter would be concluded before Parliament adjourns in December and that the decision would be communicated to the candidate by then.

Interview 2: Mr Buang Jones
The Chairperson asked the candidate to introduce himself, explaining his value system and the experience he would bring to the position; to state the experience he has in championing constitutional values and fighting corruption; to confirm what is in the disclosure questionnaire and to elaborate on anything he wishes to. There was Constitutional Court judgement, Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly, in 2016 – what is the fundamental impact of this judgement on the institution of the Public Protector?

Refer to audio for interviewee responses

Adv Breytenbach asked for the candidate’s understanding of the concepts of the ‘rule of law’ and of ‘due process’; if he considered himself bound by the concepts of the rule of law and due process and if he follows them. The candidate mentioned that he is not facing any disciplinary hearing and that there are no investigations running against him. She asked if this was in relation to the rugby player, Eben Etzebeth. She asked if he said, “he even gets away with murder and we are going to make an example with Etzebeth”, and if he did, how this matches up with his views on the rule of law, due process and that he considers himself bound by those concepts.

Ms Mofokeng asked if the candidate would be happy to be led by a woman Public Protector and if he is willing to take instructions from her; what his understanding is of the role of the Public Protector and the requirements of the Executive Members Ethics Act; what constructive action the Office of the Public Protector could take to ensure that there is an effective public service which maintains a high standard of professional ethics; and what the candidate would do if the Public Protector does not assign him any roles.

Adv Mohamed asked about his role as acting legal head in the South African Human Rights Commission (SAHRC) decision in the Etzebeth matter. Is the Public Protector a passive adjudicator between citizens and the state based on complaints received, or does the institution need to play an investigatory role and be more proactive? What are some of the key challenges the Public Protector faces and what mitigation strategies would he suggest? What public service level is his current position?

The Chairperson asked how many people report to the candidate.

Dr Ndlozi said that Adv Busisiwe Mkhwebane has been losing a lot of cases and many people feel that she should go – they think that she is incompetent. He asked what the candidate’s view is of the work that Adv Mkhwebane has been doing; what improvement does he think she needs; would he fundraise in other countries; and on what grounds may a Deputy Public Protector succeed a Public Protector – is it legal? What impact would his young age have on the role and the expectations he will have. What is his view of the conduct of the outgoing Deputy Public Protector towards both Adv Mkhwebane and Adv Madonsela? Does he approve of this conduct or would he act differently?

Mr Swart asked if he would agree that a personal costs order against an official, it is a severe indictment against that person, and it was an indictment when the court gave a personal costs order against the existing Public Protector. How would he ensure that state departments and particularly politically aligned persons and ministers comply with the rulings of the Public Protector? What would he do to strengthen the protection of whistleblowers given that the Public Protector has to oversee the implementation of the Protected Disclosures Act? There are concerns about the existing Public Protector in relation to non-compliance, for example such a state capture. He asked how the candidate would do in the institution of criminal action where necessary by the NPA and the Hawks, such as the state capture inquiry. He asked whether the SAHRC and the candidate’s role there was insufficient in dealing with the right prices in Gauteng in its investigation into the health system or if it was a case of non-compliance with his recommendation.

Ms Maseko-Jele asked why the Constitution requires that the Public Protector be both independent and impartial. What was his view on the consensus that the Office in not independent or impartial? How would he ensure that the Public Protector’s Office makes a genuine impact on the lives of ordinary South Africans? How he would deal with the perception or the accusation that the Public Protector is aligning with certain political parties?

Mr Nqola said that the Committee is looking for a fit and proper Deputy Public Protector, and part of what defines fit and proper is honesty. Do you honestly think that Eben Etzebeth is a racist lunatic who must be isolated from society? He asked if there is an overlap between the mandate of the Public Protector’s Office with the mandate of other public institutions; if so, what are these and what should be done to ensure cooperation between the institutions whose mandate clash. The Public Protector’s Act is silent on the delegation framework of the Deputy Public Protector – what would you do if you see there are irregularities in the Office of the Public Protector?

Mr Horn asked what the candidate has learned from his experience of the Langebaan meeting, and if he would handle the situation differently if one could rewind the clock. How the Public Protector’s Office should find a balance between mediating, which might boil down to having to refer to government all the time, versus remedial action that will result in an immediate positive outcome. In 2013 the SAHRC issued a report on water provision in the Free State where people had either intermittent access or no access at all to water. That report made conclusive findings that the specific local government violated one of the most basic rights people have. However, nothing other than mediation has happened. Should he have used his powers to take the matter to court? Will he deal with matters in this way at the Public Protector’s Office, by making conclusive findings but then just mediate?

Mr Dyantyi asked if the candidate has conducted research on the Office of the Public Protector; what the budget of the office is; and what the three programmes of the office are about. The three programmes are administration, investigations and stakeholders. He asked if the previous two Annual Reports indicate that the Office is performing well; if he is a firm believer in the Constitution as the supreme law of the land where he can conclude from a statement made by the candidate in his submission that he is not a firm believer of the Constitution as the supreme law (the statement: “while we have a so-called impeccable Constitution and Bill of Rights"). This is a statement from somebody who does not firmly believe in the Constitution. Once something is referred to as ‘so-called’, doubt is cast upon it.

Ms Newhoudt-Druchen asked how the candidate would resolve conflict in his team and to give an example of how he has resolved conflict in his own team, in his current line of work.

Mr Horn said that the candidate’s response to Dr Ndlozi’s question was that all issues with the Public Protector should be handled internally, privately. He asked what if the candidate was faced with a situation in which he is only tasked with developing a case management system and training, and despite all his mediation and negotiation skills, that remains the decision of the incumbent. What happened in the matter whereby the candidate was involved in another issue in the media. The candidate informed the Committee that he was proud of getting reparations for the gogo who was tied to the hospital bench in Gauteng. However, the candidate was recently in a twitter spat with the Gauteng Department of Health when they announced that there was a settlement and he denied it – what happened there? How is it that the candidate say that he is satisfied with the achieved reparations?

The Chairperson asked if the candidate has a comment on the disclosure made by Adv Breytenbach and if he had a comment on the interview, in general.

The Chairperson said that the matter would be concluded before Parliament adjourns in December and that the decision would be communicated to the candidate by then.

Interview 3: Adv Moshoeshoe Moshoeshoe
The Chairperson asked the candidate to state who he is, explaining his value system and the experience he will bring to the Office; to state the experience he has in championing constitutional values and fighting corruption and maladministration. He referred to the 2016 Constitutional Court judgment, Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly, and asked what impact that judgment had on the institution of the Office of the Public Protector.

Refer to audio for interviewee responses

Adv Breytenbach asked for the candidate’s understanding of the concepts of the ‘rule of law’ and of ‘due process’, and how or when he would consider himself bound by them; and what his view is on the subject that the South African Revenue Service (SARS) wants to limit the powers of the Public Protector from accessing the taxpayer information; however, the Public Protector wants access to the information for investigations.

Mr Nqola asked why the candidate did not answer the question in the questionnaire on whether he has been convicted of an offence involving dishonesty or violence, and what the answer is to that question; if he has ever faced an investigation or disciplinary hearing or dismissal, or been accused of any misconduct at SARS; and what the values and characteristics are of the African value system of Ubuntu. There is a popular case involving the Public Protector and Minister Pravin Gordhan on what has been termed the SARS rogue unit and Mr Gordhan has taken it for a judicial review. This has had an impact on the implementation of the remedial action of the Public Protector. He asked what his view is and what he understands about the enforceability of the Public Protector’s remedial action.

Mr Swart asked if the candidate experienced any political pressure by the then SARS administration that led to the Nugent Commission; and if he is able to stand against political pressure should he be appointed as the Deputy Public Protector. As a specialist enforcement investigator at SARS, the candidate would have had a lot of powers and one of the issues that concerns people is that SARS has not taken sufficient steps to address a lot of the evidence we see in the Zondo Commission, given the wide powers that SARS has. He asked if the candidate was involved and why SARS has not taken more urgent action against those implicated in the Zondo Commission and the Public Protector State Capture Report, when it is known that tax would have been due from the millions and billions of rands stolen. He asked if the candidate’s experience in forensic investigation would assist him in the types of investigations done as Deputy Public Protector. Many whistleblowers in South Africa come under severe attack, such as the case of Mr Thabiso Zulu, a KZN whistleblower who is crying out for protection due to whistleblower killings. The Protector Disclosures Act falls under the of the ambit Public Protector. He asked if this Act sufficiently protects whistleblowers, and if not, would the candidate seek an amendment to protect whistleblowers.

Ms Maseko-Jele asked why the Constitution requires the Public Protector to be both independent and impartial – and the concern raised about the Office. What the candidate’s view is on perceptions about the alignment of the Office with a political party; and how he would handle such perceptions to protect the Office’s independence and impartiality?

Ms Mofokeng asked if the candidate’s skill at conflict resolution would help in working with the Public Protector. The Public Protector delegates roles or responsibilities to the Deputy Public Protector. What will the candidate do if those roles are not delegated to him; and what it means to be anti-corruption champion?

The Chairperson asked if the candidate has ever been in a position where he had to challenge authority at his own expense in fighting against maladministration.

Mr Horn asked if there could be a situation where the Office of the Public Protector can make a finding that a government policy is corrupt or causes maladministration – in relation to the principle of separation of powers and the Public Protector powers to deal with corruption and maladministration. He asked if his statement in the questionnaire contradicts his response that the Office should stay clear of policy considerations. How will he will strike a balance between mediation – at what point and for whom is the mediation outcome acceptable when it involves corruption or maladministration? When is it necessary to take the type of remedial action that can address the systemic nature of the problem?

Adv Mohamed asked if the candidate has ever been investigated for misconduct by an employee and if so, what the nature of it was and how it was resolved; if he would wait for the Public Protector to delegate him areas of responsibilities or if he would bring forth proposals himself; if the Public Protector should be a passive adjudicator between citizens and the state or if the Office should play a more investigative role, requiring it to be more proactive in certain circumstances; and to share his strategic vision of the Office of the Public Protector for the next term of seven years.

Ms Newhoudt-Druchen asked how many employees work under the candidate in his current position; to give an example of a case where there was interpersonal conflict and how he successfully resolved this conflict; and how he would view the duplication of the mandate of the Office of the Public Protector with other Chapter 9 institutions, and how he would avoid that duplication.

Dr Ndlozi asked what political party he was part of when he was in the Student Representative Council at university; to elaborate on his history in litigation; what his view is of the work Ms Mkhwebane has done thus far – the Public Protector has been losing a lot of cases which has caused some to say that the Office now lacks public confidence, characterised by the personal costs order that she was given. He asked what the candidate’s reaction is to that state of affairs. He asked him to ventilate his activities at SARS.

Mr Dyantyi asked why the candidate is leaving SARS while it is going through restructuring; if he has researched and understood the make-up of the Office of the Public Protector; what the budget of the Office is; what three programmes make up the Office; what weaknesses the Office is faced with and what value he would bring to that Office and if investigation is an area of weakness that he has identified; what his understanding of the binding nature of remedial action is – if it is absolute; and what the majority judgment of the Constitutional Court was, in relation to the costs. As a person from SARS, the candidate does not mention anything about the economy in his submission about the challenges facing the country, he only mentions tenders and corruption. He asked why he did not bother about mentioning something about the state of the country’s economy.

The Chairperson asked if the candidate had any comment about the interview and if he was satisfied with the process.

The Chairperson said that the matter would be concluded before Parliament adjourns in December and that the decision would be communicated to the candidate by then.

Interview 4: Adv Nolo Mbhangeni
The Chairperson asked the candidate to introduce herself, explaining her value system and the experience she will bring to the Office; to state the experience she has in championing constitutional values and fighting corruption and maladministration; to confirm her disclosure in the questionnaire and to elaborate on anything she wishes to. In 2016, there was a Constitutional Court judgment in the matter of Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly. He asked what the impact of the judgment was on the Office of the Public Protector.

Refer to audio for interviewee responses

Mr Horn asked the candidate to expand on her response in the questionnaire, that it is necessary that the Office still maintain good working relationships with government. Unpack the extent to which the statement speaks of an attitude which could hinder the Office of the Public Protector rather than assist it and might impact on the impartiality and objectivity of that Office. The candidate suggests that unemployed graduates should be involved in investigations and he asked her to expand on this. He asked her what measures she will put in place to ensure the integrity of such reports, as she alluded that there is a lot of remedial action that is ignored. How will she ensure that people without experience deliver the type of investigative outcomes that can be used? He asked how in her remedial action, the candidate would deal with a situation where after an investigation, she concluded that there is a provision in a law or the Constitution which enables maladministration and corruption rather than preventing it.

Ms Mofokeng asked what the candidate would do to rectify the problem that most departments do not abide by the rules on remedial action. The Public Protector as head assigns roles and responsibilities. She asked what the candidate would do if the Public Protector does not assign her any roles; if she is happy with that provision. What she would change if she was given the opportunity to rewrite section 182 in the Constitution; and what makes the candidate want to serve in Office of the Public Protector.

Adv Breytenbach asked for the candidate’s understanding of the concepts of the ‘rule of law’ and of ‘due process’; if, in her current position and in the Office of the Public Protector, she considered himself bound by the concepts of the rule of law and due process; and what the principle of legality is.

Ms Maseko-Jele asked how the candidate would ensure that the Public Protector’s Office makes a genuine impact on the lives of ordinary South Africans, particularly woman and children, in line with her gender advocacy experience; if the challenges and criticisms levelled at the Office of the Public Protector are because the Office is recently occupied or managed by women; and what ‘without fear or favour’ means for the Office of the Public Protector.

Adv Mohamed asked what the candidate’s approach to the Public Protector’s delegation of certain responsibilities to the Deputy Public Protector and if she would propose delegation or wait for the Public Protector. What key challenges or risks does the Office of the Public Protector face and what her suggested mitigation strategy would be?

Mr Nqola noted the clash in legal views about whether remedial action is binding when taken on judicial review. He asked if the candidate’s view is that remedial action is immediately enforceable or only when the court adjudicates on the review application. Section 2A(6) of the Public Protector Act provides that the Deputy Public Protector acts in accordance to what has been delegated to him/her by the Public Protector. However, there is currently no delegation framework on what this entails. He asked what the two basic functions are that must be delegated to the Deputy Public Protector; what should be done in the Office of the Public Protector to strengthen internal capacity to ensure cases and investigations are done on time and with due diligence; and what role should women play in ensuring that corruption in society is capped.

Mr Swart asked what the candidate’s understanding is of an anti-corruption champion, given the role that the Public Protector is expected to play; what change she would bring to the Office to assist in elevating the fight against corruption, if there is a need for change and what that change would be. He asked if she is experienced in forensic investigations and to give some examples of the corruption cases she was involved in; if she has seen the Protected Disclosures Act, which protects whistle blowers; if there is a greater need for the protection of whistleblowers; and if so, what she would do.

Ms Newhoudt-Druchen asked if the candidate would resign from her position as Small Claims Commissioner if she were appointed to the position as Deputy Public Protector; and what her understanding is of the roles of Chapter 9 institutions that fall within the constitutional architecture. Chapter 9 institutions are viewed as overlapping each other, for example, with the Public Service Commission. How would the candidate avoid the overlap in the sphere of the Public Protector.

Dr Ndlozi asked if it is fair that the courts gave the Public Protector a personal costs order on the reports that are produced by an institution; and if the courts have to be transformed or if the Public Protector has to perform better. There is a rising tendency of ignoring the remedial action of the Public Protector. What should be the consequences for people who ignore the remedial action of the Public Protector? The existing Public Protector has been losing cases and has received personal cost orders. Why would the candidate want to join such an office; and what she makes of this state of affairs?

Mr Dyantyi asked why the candidate chose to complete the questionnaire in handwriting; if any ideas were taken into the Public Protector Act from the Gender Advocacy Programme (GAP) submission at the time. If she conducted research on the Office of the Public Protector; what the budget of the Office is; and what the two major weaknesses are of the Office of the Public Protector. There is a recent Constitutional Court judgement on the Public Protector and a minority judgment by Chief Justice Mogoeng. He asked if she had read the judgment and what the majority judgement had said about the Office of the Public Protector.

The Chairperson asked what the candidate’s impression is of the interview and if she had a comment on the interview, in general.

The Chairperson said that the matter would be concluded before Parliament adjourns in December and that the decision would be communicated to the candidate by then.

The meeting was adjourned.

 

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