State Security Agency preliminary report (not available to the public)
The Sub-Committee met to nominate recommended candidates arising from the interviews for the position of Public Service Commissioner. It considered the State Security Agency interim report. Four candidates were nominated for deliberations to be held at a meeting on 19 November. The four candidates were Ms Zanele Hlatshwayo, Ms Zukiswa Mqolomba, Ms Rashika Bosch and Mr Kevin Malunga.
Committee Report on the Public Service Commissioner recommendation
The Chairperson stated that this meeting was for nominations of candidates based on the interview process for the position of Public Service Commissioner. He drew attention to the draft Committee Report on the Public Service Commissioner recommendation.
Dr L Schreiber (DA) asked if it is appropriate for the adoption of this report to take place.
The Chairperson stated that Members should merely read the report. The adoption of the report would take place in the main Committee and not the current Sub-Committee meeting.
Mr Julius Ngoepe, Committee Content Advisor, stated that the report was brought forward because the deliberations might take long. Members are expected only to take note of the language of the report and state if they agree with the spirit of the report before deliberations take place. Adoption of the report would not be taking place in this meeting but would be done by the main Committee.
Dr Schreiber was happy with what Mr Ngoepe proposed.
Ms Ntuli asked if members of the Sub-Committee are allowed to amend the report before it is taken to the main Committee.
The Chairperson replied that the aim is for Members to certify that this is the correct record of what has been done thus far by this Sub-Committee and that amendments should be made in this meeting.
Ms Ntuli asked if numbers can be put down and then categorised.
The Chairperson replied that the selection process was outlined in the report before Members.
Ms C Motsepe (EFF) asked if "security clearance" refers to vetting.
The Chairperson replied that that it did and asked if Members supported the report.
Ms M Kibi (ANC) stated that she supported it.
The Chairperson stated that the report would be finalised in the next Portfolio Committee meeting.
Deliberations on interview candidates
Ms Kibi stated that after the interviews took place, she had reflected on the interviews and she proposed the nomination of three candidates for consideration: Ms Zanele Hlatshwayo, Ms Zukiswa Mqolomba and Ms Rashika Bosh.
Ms Ntuli seconded Ms Kibi’s proposed nomination of the three candidates.
Ms Motsepe stated that she could not participate in the process of nomination as she was present only for the last day of interviews.
The Chairperson agreed.
Dr Schreiber asked if there has been an update on the security clearance.
Mr Ngoepe reported that the State Security Agency (SSA) interim report had advised that the information provided was correct and that the Committee can use that in processing the appointment. The fingerprint process takes longer and he encouraged that the Committee proceed with the nominations and the candidate that is recommended or appointed would still be vetted through the Public Service Commission.
Dr Schreiber said that if the final vetting will only happen after the recommendations have been made, the interim report cannot be used to prejudice any of the candidates because it is not the final information. He proposed that the information be completely excluded in considering the nomination or it be taken for further investigation before nominations are done.
The Chairperson replied that what Dr Schreiber proposed cannot put this process on hold. Even if a candidate is recommended in the next meeting, that person would be subject to a vetting process.
Ms Noluthando Ntlokwana-Mpikashe, Parliamentary Legal Advisor, said that as there are no criteria in the Act or the Constitution on how to run the appointment process. The Committee can establish its own process as long as a candidate envisaged by the Constitution and the Act is appointed.
Dr Schreiber said that the information in the interim report is irrelevant in the deliberations. The candidates cannot be prejudiced based on information that is not final. He asked for legal clarity on this.
Mr Ngoepe said that in the State Security Agency preliminary report, two candidates have been flagged. It states that “these two candidates may…”. The word ‘may’ means that there is a possibility that they might have a criminal record but the Committee is not aware of what kind of criminal record that is. The fingerprint process will allow identification of whether these candidates indeed have a criminal record. He advised that the Committee proceeds with the business of the day to nominate and recommend candidates, a first best and a second-best candidate.
Dr Schreiber asked if the information collected on the candidates is relevant for the current discussion of the Committee. If Members do not exclude the preliminary SSA report and allow the information to influence the deliberations, it will be an act against the spirit of the law.
The Chairperson said that Members are expected to read through the report and keep it in mind in the deliberation process.
Dr Schreiber disagreed with this and said that the preliminary information cannot confirm a final finding and a decision should be made if the information is relevant or not.
The Chairperson said that he sees no transgression of law.
Ms Ntlokwana-Mpikashe said that she has not seen the report under discussion, nor does she know its status but she understands that report comes from the vetting process and that it is an interim report and will be finalised. Nothing prevents the consideration of the report by the Committee as a final report will still be provided by the State Security Agency.
Ms Ntuli said that the interim report stipulates that as much as the candidates are South Africa citizens, however, it may be possible for the candidates to be linked to criminal records. She proposed that the Committee continue the nominations using the preliminary findings
Ms Kibi said that the interim report states that security screening investigations were based on available information and that no security concerns came to light with the above mentioned individuals. She agreed that two candidates be recommended in case any information arises following the fingerprint process.
Dr Schreiber read a point in the report which said that ‘please note that the investigation results are preliminary as criminal record checks were done on ID numbers only; the fingerprints are still outstanding. Results based on fingerprints are more reliable than those based on ID. If the report is preliminary and there are more reliable ways, the Committee should regard the preliminary information as irrelevant and await for the relevant information.
Ms Ntuli said that three names had been raised and they have not been flagged in the report. She asked that the Committee continue with the recommendation process.
Ms Ntlokwana-Mpikashe said that the entire letter needs to be read and not interpret the letter based on one paragraph. The information given to the Committee will not change and criminal records are the only thing outstanding.
Dr Schreiber asked why the report would state that the information has to confirmed if it will not change.
Ms Ntuli proposed that if any of the flagged names are nominated, those candidates would be the subject of the following week’s discussion.
Ms Kibi said that the Sub-Committee is only identifying candidates and not appointing them at this meeting and it would not be a final decision. She asked for the process to proceed.
Mr Ngoepe proposed two options to the Sub-Committee: either recommendations take place without excluding those flagged in the preliminary report; or the process continues and the final information is waited upon.
Dr Schreiber agreed and said that the preliminary section of the report should not be part of the deliberations as the information is subject to change.
Ms Ntuli said that the flagged names are not excluded and that anyone can recommend the flagged names.
Ms Motsepe said that the relevant section should be removed and the meeting should proceed, and finalisation be made in the following week.
Dr Schreiber agreed and said that section 3 of the report should be noted as explicitly excluded from the deliberations.
Ms Ntuli said that nothing compels the Sub-Committee to exclude the flagged names. The Sub-Committee can proceed and state that the outcome of the vetting process will determine the finality of the process.
The Chairperson said that if the Sub-Committee agrees on a candidate and information comes from state security that the person has a criminal record, that candidate will be disqualified.
Mr Ngoepe said that the Sub-Committee should proceed with the process keeping in mind that the State Security Agency report is preliminary and that candidates cannot be disqualified based on it. If the Sub-Committee does not receive a final report by the following week, the matter can be highlighted to the Portfolio Committee that the SSA report is still preliminary. Two candidates should be recommended, a first and second-best, just in case something comes up with the first preferred candidate.
Dr Schreiber asked if this will be raised when deliberations takes place or if it will be excluded from today’s discussion.
Ms Ntuli said that the two names flagged in the report are not disqualified or excluded. They can also be nominated if a Member wishes to do so.
The Chairperson asked if Dr Schreiber had any candidates he wished to nominate.
Dr Schreiber nominated Mr Kevin Malunga.
Ms Ntuli said that a candidate cannot be put through for deliberation if the nomination has not been seconded.
Mr Ngoepe said that this was just a process for identifying candidates and that deliberations will occur once candidates have been nominated for recommendation. The candidate nominated by Dr Schreiber can be included in the list for deliberations.
The Chairperson agreed.
Ms Ntuli said that procedurally, when a recommendation is made, it has to be seconded.
Dr Schreiber asked if a name can be recommended by two people with nothing being said about the appropriateness of that candidate. His understanding was that names of candidates should be put forward and then in a discussion takes place where they can interrogate who should be recommended.
Ms Kibi said that she understands what Dr Schreiber has raised. The candidates that she has put forward are not final, they will still be deliberated on. She clarified that what Ms Ntuli meant was for a candidate to be deliberated on, the nomination of the candidate should be seconded.
Dr Schreiber asked on what basis was this rule made about the process needing to have more than one vote for a nomination.
Ms Kibi said that they cannot deliberate on a candidate that has not been supported. There is not enough time to put forward names for nomination that have not been supported.
Mr Mlungisi Biyela, Committee Researcher, said that if the three names that have been suggested will still be deliberated on, the fourth name can also be suggested as long as deliberations still occur.
Dr Schreiber agreed and said that he was not informed at the start that there would be a process of seconding. He assumed that a smaller group of candidates that are worth discussing would be selected and that it would be an open process.
The Chairperson said that what Mr Biyela suggested is the correct process.
Mr Ngoepe said that names can be raised by each Member and then they can be deliberated on. There has never been a secondment for this process. Each Member has always been afforded the opportunity to nominate a candidate, then deliberation would take place and the process finalised.
Ms Kibi asked if the Sub-Committee would meet at a later stage to deliberate on the nominated candidates or if it took place at this meeting.
Mr Ngoepe replied that deliberations would take place at a later stage.
All members agreed.
Dr Schreiber requested that ground rules be put in place at the start of the next meeting for the deliberations.
The Chairperson agreed and said that the discussion should take place before the Committee meets.
The minutes of the meeting of 6 November 2019 were adopted.
The meeting was adjourned.
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