(SubCommittee): PSC Vacancies: deliberations and recommendation

Meeting report

The Chairperson opened the virtual meeting, welcoming all Members to the meeting. He then made brief introductory remarks, recounting that the Committee previously disagreed on whether they should only recommend three candidates for appointment or if they should recommend more. The Committee had agreed that it would seek a legal opinion.

Ms R Komane (EFF) recounted that when a meeting was held the previous week, the Committee deliberated on the matter and did not agree on a legal opinion. It had been agreed that the Committee would be setting a bad precedent, and should follow the same process it was using. The post had previously been one percent, and the Committee also recommended one percent to the President.

Dr L Schreiber (DA) echoed what Ms Komane said. The Committee was working a certain way up until now and has recommended a certain number of candidates that did not exceed the vacancies. In the absence of a correct legal opinion, the Committee cannot be sure that it was acting correctly by expanding this. He cautioned the Committee to tread carefully, as the Constitution did not give the Committee the power to use this kind of discretion. If the wrong decision is taken, the Committee may undermine the process, which it had worked hard on to get to where it is now.

The Chairperson indicated Ms Noluthando Mpikashe from Parliamentary Legal Services was present in the meeting and would advise on the matter.

Ms M Kibi (ANC) said she thought it would only be correct to go according to the legal opinion the Committee receives. The process should be opened up so that the resident could make his choice; he should not be restricted to one person or three people if the vacancies are for three people. She did not recall needing to recommend a certain number of candidates.

The Chairperson said that the Committee should get the legal opinion first.

Ms Komane said that she felt the Committee was being oppressed because the Chairperson had asked for a legal opinion outside of the parameters of the Committee. The Committee must be taken into consideration. In the previous interviews, the Committee was at loggerheads. She said her concern was why this was being done now. The Committee should proceed as it has been and perhaps change the process, going forward. The Committee will seem as if it does not know what it is doing.

The Chairperson acknowledged Ms Komane’s comments and invited other Members to comment.

Ms T Mgweba (ANC) supported Ms Kibi’s input about allowing the Legal Department to advise the Committee.

Ms Kibi reiterated that the Legal Team should be allowed to advise the Committee. By restricting the President’s options, it would be disadvantaging the Committee. Recommending more candidates means everyone can be accommodated in what they think of the candidates being interviewed.

Mr C Sibisi (NFP) said the legal opinion should be heard first.

The Chairperson handed over to Ms Mpikashe to present the legal opinion to the Committee. She indicated the Committee Secretary sent an email to the legal team requesting it to provide an opinion. The legal team, as briefed with two or three documents and one of the documents, stated what the Committee agreed on when previous interviews were conducted. The Committee agreed it would interview a number of candidates and recommend a certain number of them to the President. The Committee Secretary was advised by the legal team that it did not find the documents that were sent to be a reasonable request for the team to write a legal opinion. The team found that there was no legal issue to consider. Neither the Constitution nor the Public Service Commission Act states what number of candidates should be recommended. This means the Committee has discretion to decide how it will proceed on the matter. The matter should be dealt with procedurally.

Dr Schreiber said that it needed to be put on record that this would be breaking the precedent by expanding the pool of candidates. This would be the first time in 27 years that the National Assembly decides to do this. The Committee must be clear on the reasons for such a substantial change in how it operates. The point is that, by giving discretion to the President, they would actually be giving away some of the powers of the National Assembly. The President will have the power to accept or reject the recommendation if the Committee recommends three candidates. But the power to decide those three recommended candidates lies with the National Assembly. If the pool of candidates is expanded to a larger number, the power of the National Assembly would be diluted by half and the power of the President would be expanded by half; the Head of State would then be able to pick and choose candidates on the basis of his wishes, as opposed to that of the National Assembly. Parliament has been accused of not executing its powers and functions correctly. “We are giving away powers of Parliament in exchange for nothing”, he added. He said he thought that what was causing this was that there may be a deadlock within the President’s party. Also, because there is no agreement in the President’s party about who the three candidates should be, there is an effort to expand the pool and allow the President to circumvent and go around the factional deadlock that may exist within his party. The question is not about whether the Committee trusts the President’s discretion or not in such a matter, but whether it is structurally good for South African democracy that the National Assembly give away some of the powers it has enjoyed for 27 years. We must always think about the worst case scenario”, he added.

The Chairperson said that he heard both sides and that this needed to be voted on.

Ms Komane wanted to speak, but the Chairperson said he would not argue with her, and said he would not allow her to speak. When both positions were supported, he needed to break the stalemate with a vote.

The Committee Secretary, Mr Masixole Zibeko, said the Committee should first adopt its previous minutes. The Committee agreed to this.

Ms V Malomane (ANC) said that the previous issue should not be deliberated on, as it was on the previous set of minutes. She said there was a matter she wanted the Committee to debate on, regarding the minutes of 18 February 2022.

Ms Komane wanted to revisit the minutes of 17 February 2022 to add that the Constitution did not provide a number of people to be interviewed.

Ms Mgweba said that when the Committee recommends candidates to the President, it must consider their skills, expertise and knowledge of the mandate of the Public Service Commission. She supported what was raised by Ms Malomane. She said this referred to the minutes of 17 February 2022. She suggested that the Committee recommend the six best candidates, as the Committee was doing this for the people of South Africa.

Dr Schreiber said that he wanted it on record that he strongly opposed this suggestion, as the Committee did not have a mandate from the people of South Africa to give away the power that they have vested in the National Assembly. The Committee has not been given a reason as to why it was suddenly doing this when it has used a different approach in the past. “This makes me very uncomfortable, and I think it is dangerous territory when we start abdicating and surrendering powers that are vested in us for what I can only conclude are political reasons. This is a very dangerous precedent that is being set and I strongly suggest that the Committee reconsider this”, he commented.

Ms Komane said she begged to differ with Ms Mgweba as the reason for the adoption of the minutes was to ratify what was discussed in that meeting. The report cannot include things we have not discussed during the meeting unless we say the meeting is null and void.”, she added.

She concurred with Dr Schreiber to not give away the independence of other Chapter 9 institutions. “During the meeting of 17 February 2022, we did not speak about recommending an extended number of people”, she recounted.

The Chairperson said that Ms Komane’s and Dr Schreiber’s objections would be recorded and that the Committee would go with the view of those who agree to recommend more than three candidates.

Mr Zibeko said that the Committee would adopt the minutes of 17 February with any amendments.

Ms Komane said that he was incorrect.

Ms Malomane said this was why she wanted to discuss a matter on the minutes relating to guidelines or process on point number three. This matter should be put for review – for it to be six names and not three.

Ms Mgweba said that she was covered by Ms Malomane.

Mr Zibeko said that some things may be challenged based on what he read in the legal opinion. He said he did not know how to proceed.

Dr Schreiber pointed out that one could hear the hesitance of the support staff. He commended Mr Zibeko for speaking out on this. At the end of the day, it is also their responsibility to ensure that things happen in a correct, procedural way. “There is extreme discomfort, which we can all hear. We cannot simply hand over power to the executive. Let us rise above whatever political issues there may be. Let us stick to precedent and not throw our people under the bus. Let us recommend the three names for the vacancies”, he remarked. He pleaded with the Chairperson to rise above this.

Ms Komane said that the Committee did not have the time to make this proposal. This process is at an advanced stage. She asked the Committee to consider what Mr Zibeko said, as the legal opinion did not give the Committee leeway to extend the number of candidates to recommend. Perhaps the issue should have been debated before the interview process began. “If we continue to do this and compromise other Chapters of the Constitution, this will become a legal matter”, she added.

Ms Malomane repeated what was said on the legal opinion given to the Committee.

Ms Mpikashe repeated what she had said earlier in the meeting on her advice to the Committee.

Mr Schreiber said that the Committee needs to motivate the decision, as it had far-reaching consequences. He asked Members to explain why the process was being changed.

The Chairperson said that he heard all the opinions and legal advice, and asked the Committee to proceed.

Ms Kibi said that the proposal of the Chairperson to increase the number of recommended candidates to the President was made, as it has also been done in other Committees. It is only correct for Members to recommend who they think is qualified for the post. There is nothing political about this.

Ms Komane replied that what Ms Kibi said was done by the National Youth Development Agency (NYDA), not the National Assembly.

Ms Mgweba said that the NYDA was also an entity of Parliament, and there were seven vacancies, but 17 names were recommended to Parliament. Ms Komane must not say it was done in the NYDA as if it was not a Parliamentary entity. There was also a sub-committee. “The legal team did not say we were wrong; it said we were limited by one or more names”, she clarified. She wanted to correct Dr Schreiber, who she said was speaking about the ANC and its processes. “I do not think that we are here to discuss our organisational challenges, but we were tasked to deal with a process of the Public Service Commission. Mr Schreiber should stop speaking about the ANC and its factions when we are discussing serious matters”, she said.

The Chairperson said that he would be the last person to ignore the legal opinion. He has listened carefully to this. He appealed to the Committee to follow the guidance of the legal services – recommending only 3 Candidates.

The Chairperson asked the Committee to motivate names that they feel have performed well in the interviews.

Ms Kibi made a point of order that the Committee had not concluded on the minutes, as they had not been adopted.

The meeting minutes of 18 February 2022 were adopted without amendment.

Members agreed to recommend names.

Dr Schreiber recommended Ms Nancy Ngwenya, Prof Nicholaas Olivier and Mr Themba Dlamini. He believed that these three candidates stood out above other candidates in terms of their CVs, presentations and responses to questions. He commented on each of his shortlisted candidates:

1. Ms Ngwenya had substantial experience in government and demonstrated a courageous approach in terms of some of the issues plaguing the public service.

2. Dr Schreiber was extraordinarily impressed by Prof. Olivier’s presentation, which showed a very deep understanding on the challenges facing the Public Service Commission and the issues faced in the country, every day. The candidate had a requisite understanding and brought substantial knowledge and was the perfect independent person to bring to the Commission.

3. Mr Dlamini proved to also be someone with a lot of experience and had resigned from positions in the past where there were cases of non-adherence to corporate governance. He demonstrated independence.

All three candidates were very clear on merit-based appointments: prioritising the enhancement of the Public Service Commission’s role in ensuring the appointments are fit and proper in the public service.

Ms Mgweba recommended candidates in terms of how they have shown a clear understanding of the public service, their experience, expertise and knowledge of the Public Service. The candidates would recommend the gender aspect, which Dr Tembe spoke about and accommodate someone with disabilities and the young people of South Africa. She recommended Prof. Mandla Makhanya, Ms Zukiswa Mqolomba and Ms Ngwenya.

Ms Komane said that she considered the geographical mix, people with disabilities, how people have presented themselves as well as the CVs of the candidates. She recommended Ms Ngwenya based on professionalism and not being discouraged by her disability. She recommended Ms Thusani Mulaudzi and Prof. Olivier.

Mr Sibisi recommended Ms Ngwenya, given her experience, expressions and qualifications. He also recommended Prof Olivier, given his experience as a professor and a Lawyer. Mr Sibisi emphasised that South Africa belongs to all who live in it. He was geographically inclined to include Prof. Oliver, not because of his colour, but because of his expression. The final candidate he recommended was Ms Mqolomba, as he believed she would do good things for women and youth in the country.

Ms Malomane recommended Ms Ngwenya based on how she presented herself, given her disability and her qualifications and experience. She recommended Ms Mqolomba, who is energetic and will serve the people well. The third candidate was Prof. Makhanya, whom she also believed would serve the people well.

Ms Kibi said that the previous speakers have covered her on the reasons for recommending candidates. She recommended Prof Makhanya, Ms Mqolomba and Ms Ngwenya.

The Chairperson said that he would not present his preferred names, as this would not be objective in terms of proposed names given by other Members. He said he would go with the decision of the Sub-Committee.

Ms Mgweba said that she respected the Chairperson in his position, but he should remember that Members agreed to recommend three candidates. There was a tie between Prof. Makhanya and Prof. Olivier. The Chairperson needed to assist with breaking the tie.

The Chairperson acknowledged this and said he had the deciding vote. He would not put upfront his preferred names.

Mr Sibisi said that he knew the Chairperson had the power for the swing vote but asked to be allowed to re-motivate why he recommended certain candidates.

The Chairperson allowed this. He said that geographics needed to be taken into account and the Commission needed to be more representative and transparent.

Ms Komane conceded to Ms Mgweba’s suggestion and recommended that the Committee deliberate on the two candidates in a tie and perhaps reconsider the two candidates.

Dr Schreiber asked how this would be done.

The Chairperson said this would happen at his discretion.

Dr Schreiber said he agreed with Mr Sibisi to unanimously or close-to-unanimously recommend candidates. The Commission really needed people with vast experience and expertise. He recommended Prof Olivier.

Ms Kibi said that the Chairperson needed to come in on the recommended candidates.

Mr Zibeko said the recommended candidates were:

Ms Ngwenya with six votes, Ms Mqolomba with four votes, while Prof. Makhanya and Olivier each received three votes. Mr Dlamini and Ms Mulaudzi were both only nominated by one Member.

The Chairperson said his vote would go to Professor Makhanya.

The recommended candidates were Professor Makhanya, Ms Mqolomba and Ms Ngwenya.

The Committee then went through the report of the Portfolio Committee on Public Service and Administration on the recommended candidates for appointment by the President to serve as Commissioners for the national Public Service Commission.

The report was adopted without amendments.

The Chairperson made brief closing remarks and thanked all present in the meeting.

The meeting was adjourned.