Deputy Public Protector vacancy & removal of Adv Jiba and Adv Mrwebi from office: deliberations

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Justice and Correctional Services

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

Relevant Document: NPA Act 30 of 1998
President's letter to Advocate Mrwebi
Relevant Document: Advocate Mrwebi submissions on report
Relevant Document: President's letter to Advocate Jiba
Relevant Document: Annexure A - Advocate Jiba submissions
Relevant Document: Advocate Jiba submissions on the report
Relevant Document: Mokgoro Enquiry Report

Jiba v President of The Republic of South Africa and Others (13745/2019) [2019] ZAWCHC 136 (18 October 2019)

The Portfolio Committee on Justice and Correctional Services first deliberated on the removal of Advocate Jiba and Advocate Mrwebi from office. The Parliamentary Legal Advisor gave the Committee an update on the latest letters sent to the Committee by Advocate Jiba and Advocate Mrwebi. Advocate Jiba had decided to withdraw her application to be restored to office. The Committee also discussed whether to allow Advocate Mrwebi to appear before the Committee and make an oral representation. The number of opportunities given to both advocates to make representations to the Committee was also discussed. The Committee reviewed its procedures and processes. The EFF argued stated that a democratic Parliament should listen to the views of the all its people and should not turn away Advocate Mrwebi from giving an oral presentation.

The majority agreed that Adv Mrwebi should not be allowed to make an oral representation and the Committee had not found compelling reasons to restore Adv Mrwebi and Adv Jiba to office. The Committee would receive and adopt the report the following day.

Secondly, the Committee deliberated on the candidates for the position of Deputy Public Protector. The interview process was first discussed. A member from the Democratic Alliance said she was not overly impressed with any of the candidates but noted the urgent need to appoint the Deputy Public Protector. The two main candidates mentioned by members were Advocate Kholeka Gcaleka and Advocate Moshoeshoe Moshoeshoe. The African National Congress strongly supported Advocate Gcaleka while the opposition parties were firmly against her appointment. The Democratic Alliance and Economic Freedom Fighters threw their support behind Advocate Moshoeshoe. The past of Advocate Gcaleka was raised as she was the legal advisor to former Finance Minister Malusi Gigaba. The Committee decided to support the nomination of Advocate Gcaleka with the Democratic Alliance and Economic Freedom Fighters rejecting the candidate.

Meeting report

Removal/Restoration of Advocate N Jiba and Advocate L Mrwebi from office

Adv Siviwe Njikela, Senior Legal Advisor, Parliament’s Constitutional and Legal Services Office, made a presentation on the removal or restoration of Adv Jiba and Adv Mrwebi from office.

Since the last Committee engagement, which was around the court judgement, there had been two developments. After the court judgement was issued a letter was written to Adv Jiba giving her 7 days to make representations to the Committee. In response to that letter the Committee received a response from Adv Jiba. Her letter stated that she had a meeting with her family and had made the decision to move on with her life. For that reason, she had no interest in the restoration to office. She therefore declined to make any representation to the Committee. In the letter she also expressed her gratitude to Parliament for the manner in which it had dealt with the matter so far. She asserted that she had served the country with integrity despite all the things that were being said about her. Those were the main points made in her letter. There will be no representations by Adv Jiba. The implications of her moving on does not absolve Parliament from exercising the statutory powers that it is required to exercise in terms of the NPA Act. A decision still had to be made on the issue of restoration regardless of the letter sent by Adv Jiba.

The second development was the letter the Committee received from Adv Mrwebi. In July Adv Mrwebi was given an opportunity to make representation and he has made substantial representation on why he believes he should be restored to office. On 31 October he wrote another letter to the Committee. He sought an opportunity to appear before the Committee with his legal counsel to address the Committee. There was a specific issue which he raises which he should be allowed to address the Committee. The issue relates to the ‘Freedom under law’ judgement that was issued in the North Gauteng High Court. ‘Freedom under law’ took the former President to court with the view to compel him to institute an inquiry into the fitness of Adv Jiba and Adv Mrwebi. ‘Freedom under law’ succeeded in the matter and an order was issued directing the President to institute the inquiry into their fitness. At the time there was an appeal before the Supreme Court of Appeal which related to the case of the General Counsel of the Bar. For that reason, the Court issued the order of the disciplinary inquiry but suspended the implementation of that order pending the appeal to the Supreme Court of Appeal, which proceeded to the Constitutional Court. Adv Mrwebi’s view was that the President, because of that order, was not entitled to institute the Mokgoro inquiry until that judgement had been delivered. When Government went to the Western Cape High Court with Adv Jiba she raised this point in a ‘casual way’. When the Court was invited to pronounce itself on the issue the Court was of the view that it was not relevant for part A of her application because part A dealt with the interdict. The Court was of the view that the issue of whether the President violated that order was a matter that should be determined in part B. The Court did not make any specific ruling on whether the institution of the inquiry violated the order of Judge Mogoeng. That matter was still parked and now it was being raised with the Committee. The Committee was invited to make a decision whether the President in instituting the inquiry violated that order. Confirmation was received that there has been a notice of withdrawal by Adv Jiba of the application she filed. Which means that there will never be an opportunity for part B to be decided because she filed a formal notice of withdrawal.

It was no up to the Committee to deliberate on the two letters. Adv Mrwebi’s letter was clearly unsolicited because it was submitted out of time. It was up to the Members to consider the content of the letter and make a decision as to whether this was something they would want to consider. There was established practice that legal representatives do not usually appear before Committees. Lawyers may offer legal assistance where it was needed but they did not make representations to the Committee because they were not accountable to the public. It was up to the Committee to decide whether it wishes to allow Adv Mrwebi to appear, with his lawyers, before the Committee. 

Discussion

The Chairperson thanked legal services for their presentation. He reminded Members that they took a decision to only accept written submissions. They would not allow people to appear before the Committee. The Committee needs to apply itself both to the letter written by Adv Mrwebi and his representation. It needed to discuss everything today so that the following day it could adopt the report, which will appear before the House.

DA Submission

Mr W Horn (DA) wanted the Chairperson’s guidance as he had prepared a lengthy submission that he wanted to read out. He wanted to read it into the record. It was 15 pages long. He agreed to talk in general about it and also submit it to the Committee.

The Chairperson said that copies of the submission will be made and circulated amongst members of the Committee.

Mr Horn said the first issue he wanted to address was the nature of the powers and duty Parliament has in this instance. It was important for the Committee to reflect that this was not mere powers of oversight. The powers, as set out in section 12 (6) of the NPA Act, form an integral part of the system of checks and balances which is present in the Constitution. Thinking back to the scathing comments the Constitutional Court made because of Parliament’s failure, previously, to hold the former President to account it was important to see this exercise as a right to veto the President’s decision, in terms of the NPA Act. That does not mean Parliament can exercise that power as it wants to. That power needs to be followed by a reasonable process and fair process. In the Committee’s view this could be a multi-stage process, but it does not need to be. The first stage was for the Committee to determine whether there was a flawed process in the lead up to the decision by the President, or whether he made himself guilty with regards to abuse of office.

Mr Horn focused on the issue of the process. Adv Mrwebi brings a substantial attack on the process followed. Adv Mrwebi said that the process followed by the President was unfair. It was supposed to be a fact finding mission and it turned into a ‘trial by ambush’. Adv Mrwebi said he was not aware the outcome could be him being removed from office. That argument was not correct given the wording of section 12 (6) of the NPA Act. Section 12 (6) makes it clear that the purpose of the inquiry, which the President set up, was to determine whether the Special Director, in this case, was fit to hold office. Adv Mrwebi should have been aware that he could be removed from office. The President was not at fault.

Another argument Adv Mrwebi made, through a circular manner, was that everyone in this country was subject to labour law and that he was a part of the public service. According to him both labour law and public service provisions should have been adhered to. It is interesting to note in his presentations that he, along with Adv Jiba, seemed to argue that they should be exempted, based on the principle of separation of powers, from disciplinary processes. That does not make sense. Section 12 (6) makes it clear that once you are appointed to a top position in the NPA and your appointment and removal is dependent on the President another body has oversight over you. One cannot then ask to have the comfort of labour laws and public service regulations.

Adv Mrwebi further argues that he was confronted during the inquiry with allegations, testimonies and evidence which he was not in a position to fully prepare for and therefore it must be deemed an unfair process. It is important to remember that the process the Committee followed and the rules of practice at the inquiry was settled on after extensive consultation between the evidence leaders of the inquiry and the legal representatives of Adv Jiba and Adv Mrwebi. In addition, it was also on record that in instances where after evidence was lead and either of them felt they needed time to prepare for cross examination that time was given to them. He struggled to understand how if the rules and process was agreed to, and they had the opportunity midway through the inquiry to prepare for cross examination, how they could still argue that it was a floored process? Lastly, in terms of the process, the Committee has the benefit of the judgement in the unsuccessful part A application of Adv Jiba where the Court, even if only in passing, made a very specific finding that the establishment of the inquiry, the processes followed and the outcome was fair and valid. Parliament can place some reliance to that finding by the Western Cape High Court.

Mr Horn believed that the 31 October letter, from Adv Mrwebi, was an attack on the process. He believed that the Committee should not allow for oral representation. The Committee has set the rules through which it will deal with representation. The way he understood the Court judgement was that an argument cannot be presented now that was not part of the founding papers. What possibly happened was that Adv Mrwebi reflected on this and tried to find a way to say that the President overreached and made a procedural error. In fairness if the Committee decides to allow representations based on this argument the Committee must first consider whether the argument has the slightest chance of success. In his view it does not. Even if the Committee wants to give Adv Mrwebi the benefit of saying that there was an appeal to the Constitutional Court the Committee must first consider whether there was actually an appeal to the Constitution Court. The fact that there was a Constitutional Court judgement did not mean that there was an appeal. The judgement simplifies two things. The first was that there was no Constitutional issue raised. Secondly, there was no issue to be solved by way of interpretation by the Constitutional Court. The Constitutional Court said that this matter deals with provisions of Admissions of Advocates Act and the three stage test that is used to determine whether an advocate is to stay on the role of advocates or to be removed. The Court said that even though arguments around that Act may raise Constitutional issues in the current circumstances it does not. Ultimately, if the Committee concedes Adv Mrwebi’s argument that there was an appeal to the Constitutional Court the fact is there was an attempt to appeal and the Court said that the appeal ended at the Supreme Court of Appeal. In Mr Horn’s view that would mean there was no sufficient grounds for the Committee to state that the President made a procedural error. It was a technical argument and ‘if one cuts to the bone’ the last appeal was to the Supreme Court of Appeal and the President only embarked on establishing the Mokgoro Commission in the week after the Supreme Court of Appeal judgement came out.

There were also allegations made by Adv Mrwebi of bias on the behalf of the President and the inquiry. On the allegations of bias by the President, the argument states that the President was led to believe one version of events that occurred in a politically-charged environment. The Supreme Court of Appeal found that he was not dishonest in the discharging of his duties, as was found by the Gauteng High Court. The Supreme Court of Appeal did, however, find him guilty of misconduct. He argues that because the Mokgoro Commission found that he acted in a dishonest manner and the Supreme Court of Appeal found that he was dishonest that bias was involved. Adv Mrwebi was misconstruing two distinct processes. The first process was whether one was fit to remain on the role of advocates and then whether one was fit and proper to remain a Special Director. The President followed the provisions which enabled him to exercise his discretion in this regard. The fact that the Mokgoro Commission found Adv Mrwebi guilty of dishonesty cannot point to a bias on behalf of the judge or the President. The Committee was entitled, and obliged, to accept the findings of the Mokgoro Commission. Parliament should not fall into the trap of acting as a type of appeal court or review court. That was not Parliament’s role. Unless the Committee could find a major procedural flaw the Committee must accept the outcome of the Mokgoro inquiry. The last stage of this process should be to ask whether the President showed an ulterior motive or acted with bias in placing reliance in the way he did on the outcome of the Mokgoro inquiry in making his decision. Mr Horn believed, after reading the Mokgoro report and the subsequent communication between the President and Adv Mrwebi, that the Committee cannot find that the President acted with bias or took something out of the report that was not clearly in it. The finding of the Mokgoro inquiry establishes serious misconduct and dishonesty. In the circumstances the President would have erred if he did not resolve to remove Adv Mrwebi from office. The Democratic Alliance was of the view that the Committee should not resolve to restore Adv Mrwebi to office.

Mr Horn spoke on the issue of Adv Jiba. Her letter seemed to state that she accepted the outcome of the Mokgoro inquiry and her dismissal by the President. The Committee was duty bound not to restore her to office as well.

Dr M Ndlozi (EFF) said that the more substantial question was the accusation the President undermined the Constitution by ignoring a court order, as was claimed in the 31 October letter. This was a serious accusation. The Committee had the responsibility to hold the President accountable, especially after the Nkandla judgement. Justice must be seen being done. The Committee had a responsibility to show to the public that it carries out justice. The Committee should accept oral representation. All deliberations needed to be considered relating to the process and relating to the substance of the inquiries report. He did not see a problem with hearing Adv Mrwebi and did not want to rely on a written submission.  He did not want to discuss court decisions at that time and wanted to focus on the issue of Adv Mrwebi making an oral representation. What was wrong with listening to him?

Adv H Mohamed (ANC) noted that the Western Cape High Court had made a decision on part A of Adv Jiba’s application. The Court felt that there were certain processes that needed to be followed within the competence of Parliament, meaning this Committee. The Court also expressed that it was Parliament that will make decisions in terms of its process. Adv Mrwebi was relying on Adv Jiba’s application. Secondly, he acknowledges in his representation that Parliament would not take this into account and then he goes on and says he is not sure this Committee will do so. It was not clear, despite the judgement in the Adv Jiba matter, that he still did not make any supplementary representation to that same point. He did not previously deal with this aspect. The question is so why do you not continue to do so? The argument that the President erred is a moot point.

Adv Mohamed said he finds it difficult to understand what else Adv Mrwebi has to say which he has already not done in the letter. The points he makes in the letter are all moot points and this was what the Committee needed to take into account during the deliberations. He was not sure what Adv Mrwebi was going to advance by coming to Parliament. Adv Mrwebi said he wants to address Parliament to provide his perspective. What perspective when he already outlined it in the letter? He has stated his perspective in all his correspondence. Maybe Adv Mrwebi wants to ventilate. The Committee needs to be transparent, and he agreed with Dr Ndlozi, but the Committee had also agreed to follow a particular process and only allow written representations. He cannot take the Committee through the various reports and judgements as the Committee already had that and went through that. Adv Mrwebi has outlined his perspective. Transparency occurred during the Committee’s process and he did not see the need for Adv Mrwebi to submit oral representation.

The Chairperson said it was important to ventilate the question that was asked by Judge Henney to the legal counsel. Judge Henney asked why did they not interdict the process? If the President did not obey the law why did they not interdict the Mokgoro report? It was important for the Committee to take that question into consideration.

Ms N Maseko-Jele (ANC) noted the point the Chairperson made. If Adv Mrwebi took the process seriously he should have interdicted the process. In the previous written submission, they should have made it clear that they wanted to come in and make an oral presentation. An opportunity was always available for both Adv Jiba and Adv Mrwebi to raise the issue earlier when the Committee gave them the opportunity to make presentations. This Committee should be serious when it makes decisions on the matter. The Committee needs to take into account its role of oversight and also the principle of the separation of powers. The Committee needed to be sure of the decisions that it makes. As a Committee it was decided that the two advocates must make submissions. The timeframe was agreed upon. The Committee looked into all those matters of fairness. She agreed with the view that the Committee does not give them an opportunity to make oral representations. She also feared that if the Committee gave them this opportunity when it had already decided not to, they would not take it seriously. The processes and decisions agreed upon needed to be followed and not changed. It would therefore not be unfair for the Committee to decide to not allow Adv Mrwebi to make an oral representation.

The Chairperson suggested that the members deal with both the procedure and the merits of the case to save time.

Ms J Mofokeng (ANC) aligned herself with Ms Maseko-Jele to not allow Adv Mrwebi to make oral representation before the Committee.

Mr X Nqola (ANC) said that the Committee was fair in its process as it had allowed to previous representations to be made. The Committee should not grant another time for representations. Adv Mrwebi should not be restored.

Dr Ndlozi said that Parliament is supposed to be for the people irrespective of personal opinions on individuals in society. How can a democratic Parliament consciously say it will not hear someone? He does not know how the Committee can justify that. There were limitations to the written word. Certain things, like an oath of office, needed to be said and could not be signed. How can a Parliament of the people say it will not hear someone who wants to be heard? It was a mistake. The decision will ‘haunt’ the Committee as this Parliament ought to be seen to be listening to all people. The Committee should not demonise Adv Mrwebi and that it was normal for legal minds to disagree. Even if the Committee was going to take a different decision it should still listen to what Adv Mrwebi has to say. The implications to the substantial issues will be frustrated by the fact that the Committee does not seem to give credence to oral representation. Oral representation should be more important than a written submission. Parliament could then be closed down and the members could write to each other if oral representations were not important.

Ms Mofokeng said she was not convinced by Dr Ndlozi’s view. She wondered if Dr Ndlozi remembers how many opportunities the advocates had to represent themselves. The Committee does not need to be listening to Adv Mrwebi as if it owes him anything. The Committee owes the country and the citizens of the country. The Committee needs to ensure that processes are followed so that the country works. She said the Committee needs to move on and not allow him to make an oral representation.

Mr Nqola agreed that Parliament was for the people. The Committee had a decision before it to choose between the people of South Africa and an individual. The National Prosecuting Authority was an important institution that worked for the people. The NPA needs to be protected. The Committee has received enough evidence. In his view, there should be no restoration and no oral representation. The Committee has exhausted the matter.

Mr Horn disagreed with Dr Ndlozi’s arguments that Parliament would not listen to the people unanswered. He agreed with Mr Nqola that Parliament was acting for the benefit of the people. The people also speak through their elected public representatives. The people, through the President, had put Adv Mrwebi in a position of trust. Both courts and the Mokgoro inquiry found that he broke that trust with the people. The President was duty-bound to act and the Committee has its own role to play. When the Committee decided on the process it said it will ask for written representations. The matter raised in the letter of 31 October did not raise a sufficient argument to necessitate for an oral representation. The argument was laid out in the letter and there was no merit to the argument. Judge Henney was correct when he asked if there was such a serious flaw in the process why did he not pursue the legal avenues available? There was no duty on the Committee, in seeking a fair process, to allow Adv Mrwebi to provide oral presentations on this matter. The Committee knows what the argument is and the majority of the Committee did not believe it was a strong argument. Under the merits, every member, expect Dr Ndlozi, believes that there was no reason to restore Adv Mrwebi to office.

Ms Maseko-Jele said it would not be fair for a member to say that the Committee does not want to listen to an oral representation. The Committee and other institutions had done their work. The Committee had looked into this issue. It had gone through the documents. A message must be sent to the people who are employed in these important positions. They have been given a responsibility to do their work and they have a code of conduct they need to follow. The Committee needs to send a clear message that when someone is given a responsibility that they need to respect that responsibility and do as expected. Especially if that person is employed in the special institution that is the NPA. The matter needed to be closed. Adv Mrwebi, in his submission, was ‘piggybacking’ on the groundwork laid by Adv Jiba. The EFF had agreed to the process of this Committee so she could not understand why Dr Ndlozi had an objection to the Committee’s decision. She accepted Adv Jiba’s withdrawal and believed that the Committee should not allow Adv Mrwebi to make a representation.

The Chairperson said that both the NPA Act and the Western Cape High Court said that this matter has to be dealt with expeditiously. The Act says it must be done within 30 days or soon thereafter. The law itself did not give the Committee unlimited time. In the Western Cape High Court, the decision of Judge Henney also emphasised the same point. Having listened to the members, the majority of them are of the view that Adv Mrwebi should not be allowed to make a representation and that the Committee has not found compelling reasons to restore Adv Mrwebi and Adv Jiba to office. That was the decision taken by the majority of the members.

The Chairperson noted the opinions expressed by Dr Ndlozi. The following day members will receive a comprehensive report that they will adopt and then the matter will go to the House on Tuesday so that it can be passed.

Dr Ndlozi appealed that the report integrates the EFF’s view and objection. He wanted the record to reflect that he disagreed.

Deliberations on the Deputy Public Protector Candidates

The Chairperson said that next month there would be a vacancy in the Office of the Public Protector:  the position of Deputy Public Protector. The Committee conducted interviews seven candidates on 12 and 13 November 2019 for this post. The Committee is required to recommend one person to the National Assembly to be appointed Deputy Public Protector by the President. The following persons were interviewed: Adv Shadrack Nkuna, Mr Buang Jones, Adv Moshoeshoe Moshoeshoe, Adv Noxolo Mbangeni, Adv Lwazi Kubukeli, Adv Puleng Matshelo and Adv Kholeka Gcaleka. The Committee had held extensive interviews and the floor was now open for members to make deliberations on the candidates.

Dr Ndolzi asked if the Chairperson was not going to provide a framework.

The Chairperson said that the security screening had been done and that document had been circulated. From the Report of the security screening one candidate has a civil judgement and another one has a pending criminal case.

The Chairperson proposed to go through each candidate’s performance and have a discussion. Thereafter, the members will be in a position to recommend who to nominate.

Dr Ndlozi proposed that the members nominate their preferred candidate first as that might be a quicker process instead of going through each candidate.

The Chairperson asked if the Committee could have a short discussion on the process to arrive at the recommended name. The members should be aware that if a candidate who was not chosen asks the Committee for the reasons why they were not selected then the Committee needs to provide that candidate with reasons. That is why there should not be shortcuts and a proper process of eliminating people and recommending people should be followed.

Adv Mohamed agreed with the suggestion of Dr Ndlozi that the Committee put forward two names that would be up for deliberation. He asks that they have an exclusionary process as there were not many candidates. The State Security Report was helpful. The Committee first needed to decide the status of the report with regards to the two candidates in paragraph 2.2 and 3 and dispose of that. Then the Chairperson should give members the opportunity to choose two candidates to deliberate on.

The Chairperson agreed with the points made by Adv Mohamed and that a decision needed to be made on the status of the SSA report. Would the civil judgement of the one candidate and the pending criminal case against the other bar them from being appointed?

The Chairperson said that the members were there to work.

Dr Ndolzi said that work needs to be efficient. If the question comes later on ‘why did you not appoint me?’, the Committee could write a letter detailing why that candidate was not chosen. When the meeting started the Chairperson confirmed the status of the report. The report gave its opinion on the security status of the candidates.

Dr Ndolzi reasserted his view that the members should just put forward one or two names and that those names can be deliberated on instead of going through all seven.

Mr Horn asked a question of clarity. On the SSA report in paragraph 2.2 it talks about a pending criminal record. He did not understand what a ‘pending criminal record’ was. It was unclear whether there were criminal charges that were still to be dealt with in court or if the sentence was pending. What did ‘pending criminal record’ mean? Secondly, what was of relevance for the Committee was whether the two candidates declared in the questionnaire they filled out that they had a civil judgement and a pending criminal record. They were asked if there were any circumstances which Parliament must be made aware of. If they did not declare the civil judgment or pending criminal record, then the Committee needs to take that into account. He agreed that in the decision-making process the Committee needed to be able to give reasons to the candidates who were not chosen. Maybe a short discussion on the merits and demerits on each candidate would assist the process.

Adv G Breytenbach (DA) said that having looked at the SSA report she assumed that a pending criminal record meant one that was still live. She looked at the declarations of both candidates and both of them did not declare anything about the civil judgement nor the pending criminal record even though they had plenty of opportunity to do so. That raises questions of integrity. For an interview of this nature and a job of this nature one would expect lawyers to be over-declare rather than under-declare. The information was not voluntarily disclosed. The Committee should consider the integrity of these two candidates carefully.

The Chairperson said that one of the first questions to the candidates was whether they had anything further to disclose and those things did not come up. He suggested that the Committee use that reason to exclude the two candidates and focus on the five.

Dr Ndolzi disagreed. If a member wanted to make an argument for that candidate, then the Committee should listen to them. He suggested that the members should put forward names first and that the candidates should not just be cut.

The Chairperson said that was fair and asked the members to have a discussion on the candidates.

Adv Mohamed said the Committee would not exclude anybody and that all the names would be considered. The framework and criteria was well set out in the advertisement that went out. All the candidates were satisfied with the interview process and there was a prepared set of questions asked by the members to each candidate. This showed consistency. They were filling the Deputy Public Protector position that will support the Public Protector in the office. The responsibility, given the current challenges facing in the Office of the Public Protector, requires a lot of administrative support. It requires a supervision of not only the auxiliary services in that office but also relationship building when it comes to administrative staff. He noted the responsibility of the previous Deputy Public Protector. There needed to be oversight on the work and investigations that is being conducted. The Public Protector pointed out that there was much room for improvement. She said she required the investigative directorate of her office to be beyond reproach and that ethical conduct was critical. The outgoing Deputy Public Protector also raised a number of issues of things he thinks can be improved in that office.

Looking at the candidates Adv Mohamed thought that a person with a legal background who has been exposed to investigative work and assessing of evidence was critical to assist the Public Protector. He recalled that many interesting questions were asked. Adv Breytenbach asked a good question ‘what was the rule of law?’ Rule of law basically enables a limit to any abuse of power of authority. Many of the candidates could not answer that basic question and the due process question. There was only one candidate who came nearest to answering that. The candidate has a legal background. The candidate has experience in dealing with trials. The candidate has been involved in an investigative nature of work and has been exposed to the criminal justice system and civil justice system. The candidate was Adv Kholeka Gcaleka. Adv Gcaleka was way ahead of any other candidate. She was confident and experienced for the role of Deputy Public Protector. The only issue that was raised by certain members was that she worked for the previous Minister of Finance, Mr Malusi Gigaba. There were certain views on that that were not factual. She answered the questions posed to her about her involvement with Mr Gigaba. She said that within two weeks of Mr Gigaba being redeployed to another position she was offered employment by another Minister. Nothing disqualifies Adv Gcaleka from the position. He was impressed with the candidate’s demeanour. She would be able to handle herself under pressure given her record. There was nothing that negates the public confidence in her. Her record shows that the public would be confident. He motivated for Adv Kholeka Gcaleka as the preferred candidate for the position of Deputy Public Protector.

Adv Breytenbach said she was very disappointed by all the candidates. If it was not such an urgent matter she would suggest that the position be re-advertised. None of the candidates inspired confidence. Their legal knowledge was found to be lacking. None of the candidates could define ‘rule of law’ or ‘due process’. This was extremely concerning especially taking into account the work they would be required to do. The current Deputy Public Protector had told the Committee and South Africa that he has been side-lined and ignored. He had no input into the important reports coming out of that office. The Committee needed to appoint someone to improve and assist that office in a variety of ways. She disagreed with Adv Mohamed that Adv Gcaleka had a good interview. She found Adv Gcaleka to be defensive, emotional and did not handle the questions with the level of composure that Adv Mohamed claims. It was clear by the questions put to her by Mr Horn and Dr Ndlozi that she continued to work for a Minister who lied under oath. She was his legal advisor and did nothing to correct the fact that the Minister lied under oath. Why would any self-respecting lawyer continue associating herself with someone who lied?

Adv Breytenbach said she had very serious doubts about Adv Gcaleka and cannot support her nomination. She was the head of the Society of State Advocates of South Africa, which represents all the advocates in South Africa. In that position you would expect her to fight for basic concepts like ‘rule of law’ and ‘due process’ and prosecutorial independence. She did none of those things. While she was the head of the organisation she supported Mr Menzi Simelane. Mr Simelane’s first words when becoming the head of the NPA was to say he was there to implement the policies of the ruling party. That was nothing to do with the law and nothing to do with the Constitution. Mr Simelane played an important role in the hallowing out of the NPA and its loss of integrity and she supported him. She did nothing to fight for prosecutorial independence. She could not support her nomination and thought Adv Mohamed was overstating the success of her interview. She found it difficult to wholly support any of the candidates but at a push she nominated Adv Moshoeshoe Moshoeshoe. He displayed the kind of demeanour that is needed in that office and for that position. He was calm, rational and thought about his answers. He could bring some form of stability to the office. He would offer the Public Protector the kind of support that she needs and is the kind of person that she will be able to work with. He would help grow and strengthen the office. She supported the nomination of Adv Moshoeshoe for the role of Deputy Public Protector.

Mr Horn said that the office needs someone who was straightforward and clear about the way the law should be analysed. What is needed in that office is a voice of reason. For that specific reason he could also not support Adv Gcaleka. The overall impression created by Adv Gcaleka, in trying to explain the unfavourable situation she had found herself in in the past, was that because she was well-spoken she could explain her way out of the situation. She had used ‘verbal gymnastics’ to explain away difficult situations.

Mr Horn believed the tendency to explain away problems and mistakes of the past is exactly the reason why the current Public Protector found herself on the wrong end of court judgements. The last thing the Committee should do now is to send in another person who thinks they are so clever that they will always be able to explain away difficult situations. For that reason, he fully agreed with Adv Breytenbach that it would be a grave mistake by Parliament to send Adv Gcaleka to the Office of the Public Protector.

Dr Ndlozi said that the Office of the Public Protector was very important. It is a Chapter 9 institution listed in the Constitution. These institutions needed people with ethical credibility whose ethical history was unquestionable. When the Committee thinks of these people there should be no doubt over their ethical standing. The Deputy Public Protector should have skills that complement the incumbent. The outgoing Deputy Public Protector was a selfish, ego-centric man who lost out to become the Public Protector. His views should ‘be taken with a pinch of salt’. The new Deputy Public Protector coming in with the right attitude was important. For this position a person who believes in justice should be appointed. It should not be about money but about seeking justice. Adv Gcaleka did not declare that she was a leader in the ANC Youth League. Only on being pressed did she answer that question. It was an important piece of information that she did not declare. She also did not resign when she was the legal advisor of the Minister who lied under oath. This brings into question her ethical integrity. She did not see any ethical contradiction with working for someone who lied under oath. The next question was why did she move when she was in position to help achieve justice? She replied that she moved because she received a better paying job. Her background was not fundamentally different to the incumbent.

Dr Ndlozi agreed with the members of the DA that the most suitable candidate was Adv Moshoeshoe. His background of having worked at the South African Revenue Service brought a different skill-set to the Office of the Public Protector. Having experience in financial law, that was a real skill amongst the candidates. He had substantial experience in SARS. This candidate was bringing a different type of expertise and knowledge of a different aspect of the law. He will serve as a great resource to the Public Protector. For those reasons the EFF supported Adv Moshoeshoe.

Ms Maseko-Jele said that two names could be looked into but she supports one. She agreed with the other members that the Office of the Public Protector was important. Whoever fills the position of Deputy Public Protector should be capable, confident and ethical. She believed that the Committee asked important questions and that the process of interviews was a success. Some of the issues raised by members, on Adv Gcaleka, were not legal impediments. Her preferences were firstly Adv Gcaleka, and then secondly Adv Nkuna. She was also happy that Adv Gcaleka was a woman as government also had a role to empower women. Adv Gcaleka also had the extra experience of being a Senior Deputy Director of Public Prosecution. Therefore, she supported Adv Gcaleka for the position of Deputy Public Protector.

Ms Mofokeng said she was impressed by the way Adv Gcaleka carried herself. She was also impressed that Adv Gcaleka acknowledged that there were issues around her candidacy but that she wanted to clear her name and she did that. She answered all the questions put to her. She answered Adv Breytenbach, knowing their background, without any emotions. When a question was asked what she would do with regards to the situation of the current Deputy Public Protector and Public Protector she answered and was never emotional. She should be judged on her capabilities and nothing else. She should be given the opportunity to be the Deputy Public Protector. She was one candidate who was convincing even if there were negatives coming towards her. She was a young woman who deserved the opportunity to lead.

Mr Nqola said he did not expect the Committee to have the same discussion again. In the questioning process the Committee agreed on to how proceed with the questioning. The Committee formulated a questionnaire and in that questionnaire there was no question asking the candidates if they were part of a political party or not. In the framework which sets out the criteria and skills of the preferred candidate it did not state that the person must not belong to any political party in South Africa. There was no need for her to declare that she was part of a political party. Another thing certain members of the Committee were doing was persecuting Adv Gcaleka for crimes she did not commit. She was a legal advisor. She offered advice and it was the Minister who makes the final decision. The role the advisor played was explained in the interview. Even the comments on the NPA were properly explained. At some point the Committee must be fair. He agreed that Adv Gcaleka performed the best in the interview. She was able to comprehensively explain any issues that were put before her. He moved to support the nomination of Adv Gcaleka.

Ms W Newhoudt-Druchen (ANC) moved to support the nomination of Adv Gcaleka.

Dr Ndlozi said the process of deliberation occurred in this meeting and that members were not supposed to state their grievances during the interviews.

The Chairperson said that if the members were dissatisfied they were given an opportunity to respond.

Dr Ndlozi found it very problematic that certain members found Adv Gcaleka’s responses to questions satisfactory. The problem was not whether they were members of political parties or not; it was the understanding of the relationship between being a member of the ANC and the position in this important office. He never said that the candidates should not be members of political parties. Her answers to the ethical questions were not satisfactory as some members’ claim. How was Adv Gcaleka the best candidate when she pursues jobs for the highest pay? He pleaded for the majority of the members to listen to their conscience. No one said Adv Gcaleka lied under oath. That was a misrepresentation of his view. He was raising a question of ethics which is more important than written law. The other members were misconstruing the issues raised against Adv Gcaleka. The opposition members were also indirectly agreeing that Adv Moshoeshoe was a suitable candidate because he has the skill set and no questionable ethical history. The Committee is allowed to disqualify him but it should be based on facts.

Ms Mofokeng said that after every interview the Chairperson gave the members the opportunity to ask further questions on any issue that was still bothering them and the opposition members did not raise any grievances. The opportunity was made available to them.

Adv Mohamed said that Dr Ndlozi presented the ethical argument as if the rest of the members were in conflict with that. There was nothing wrong with the candidate that he proposed. It took Adv Gcaleka two weeks to move to another job. When a new Minister was appointed another Minister sought her services. That indicates a lot about her reputation. Why did Dr Ndlozi and his party not bar the candidate if they thought she was not fit to be an advocate? He would be the first one to oppose the candidate if there was anything unethical that she did. The second argument about her leaving her career in the public service and therefore she does not have a passion for justice is not an actual argument. Becoming a Minister’s advisor is a career move and there was nothing wrong with that. The nature of advocates and legally qualified persons was to be involved in various careers at different stages. To find that there was something morally wrong about a career move did not make sense. He did not understand that argument. Nothing shown to him indicates that Adv Gcaleka was not appointable to the position of Deputy Public Protector. The position needed the type of experience, especially legal experience, which Adv Gcaleka had. The fact that she worked for former Finance Minister Gigaba seems to be a sore point. He was judging her purely on her professional ability and nothing else. The fact that Mr Gigaba did or did not lie under oath had nothing to do with her and she left that office. This candidate serves the people and wants to serve the people.

Ms Maseko-Jele did not think money was a motivation for Adv Gcaleka. It was unfair to target people because of their bosses and what their bosses may have done that was unethical. Because her boss was guilty did not mean that she was unethical. She was able to advise to a certain extent but the final decision had to be made by her boss. The Committee could not crucify because she worked with certain individuals. For now, the Committee is looking at an ambitious young woman trying to further her career like any other person. People cannot be excluded from work opportunities because they belong to a certain party. If that was the case South Africa would lose many competent people. She agreed Adv Moshoeshoe was good in certain questions but not good in others.

Mr Nqola said that the issue of satisfying the Committee’s queries on candidates was served through the follow up questions. He agreed with Adv Mohamed part of the issues that were flagged as unethical were given the chance to be discussed properly. Public service was not a ‘money cow’. It was meant to serve the people of South Africa. Those who sacrifice their careers to serve the people of South Africa need to be commended.

The Chairperson thanked the members and said that the Committee had come to the end of their deliberations. The Committee was divided but that it was clear that the majority of the members supported Adv Gcaleka to be appointed the Deputy Public Protector. He added it would not be necessary to vote.

Adv Breytenbach noted that the DA did not support this candidate.

Dr Ndlozi noted that EFF rejected this candidate.

The Chairperson noted the views of the DA and EFF.

The meeting was adjourned.

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