Applications and nominations received for the Public Protector post

Meeting report

The Chairperson said that this was the third meeting of the Ad Hoc Committee. The Committee would receive a report on the applications and nominations received. It would be an update on the process.

Consideration and adoption of Committee Minutes

The Committee considered the draft minutes of the meeting of the Ad Hoc Committee dated 6 June 2023.

Ms J Mananiso (ANC) moved for the adoption of the minutes.

Mr G Magwanishe (ANC) seconded the adoption of the minutes.

The minutes were adopted by the Committee.

The Committee considered the draft minutes of the meeting dated 8 June 2023.

Mr R Dyantyi (ANC) moved for the adoption of the minutes.

Ms Mananiso seconded the adoption of the minutes.

The minutes were adopted by the Committee.

Update on applications and nominations received

The Chairperson provided the Committee with an update on the application and nomination process. There were two lists. The one list was a list of valid applications and nominations. The second list was a list of invalid nominations. The Committee received 53 nominations and 17 applications. Of the 53 nominations, 32 did not meet the nomination requirements. The Chairperson discussed the requirements for nomination. Every nominator needed to meet the requirements of the nomination process. There were 21 valid nominations.

The Chairperson presented the list of 21 valid nominations and 17 applications. This meant that the Committee had 38 CVs for consideration.

The Chairperson proposed that the Committee set aside the 32 invalid nominations for noncompliance with the requirements for nomination.

The Chairperson read through the two lists.

The Chairperson then read through the nomination requirements.

Discussion

Adv G Breytenbach (DA) asked if the people who were nominated were aware that they were nominated. She saw that on one of the lists, someone had nominated her. She was unaware of that. She would not have accepted the nomination, but she had been completely unaware of it. She was not sure that the other people on the list were aware that they were nominated. They may have wanted to complete their nominations and complete the outstanding documents. Was the Committee going to narrow down the list? To have interviews for 38 people would take an inordinate amount of time. It was way too many people to interview for one position.

Mr Dyantyi discussed the 32 who had been declared invalid and had not complied with the criteria. Had the 32 been made aware and informed that they were nominated? Had the 32 been informed that they did not meet the criteria, and therefore that they were not valid? Hopefully, they were not seeing this for the first time as the Committee met. If that had not been done, he suggested that the Committee inform the 32 individuals. He suggested that the Committee Secretariat inform the 32 by Friday that they had been nominated but had not met the criteria, and that therefore the application had been considered invalid. If they needed to share those comments with the Committee then they could send those comments. He noted that until 21 July there would be the public process. For those 38 names that had met the criteria and were valid, they would be shared with the public for comment. For that reason, the Committee would not be able to reduce that list. All 38 names would need to go out for public comment. The Committee should only do the shortlisting after the process of public comment on those names. What was the test for public comment? What was the Committee expecting the public to do, so that there were no surprises? What did the Committee want the public to comment on? It was a process to help the Committee begin shortlisting because the Committee would have to consider those comments from the public. The Committee should want to avoid any subjective matters where there was lobbying created through public comment. He wanted the Committee to be clear upfront before it started focusing on individuals.

Ms O Maotwe (EFF) said that there seemed to be a calculation error. She noted that the Chairperson had miscalculated the number of valid applications, valid nominations, and invalid nominations. If the Chairperson wanted the Members to accept the names that were invalid then the Members needed to be taken into confidence on what process was followed and who was involved in declaring these names as invalid. Adv Breytenbach had said that she was nominated but that she had never been informed, and as a result, she had not submitted anything. Ms Maotwe said that if that was the case, then she would have a problem. The Members had not been personally involved in the process of eliminating certain names. Now the Members were supposed to accept the names as invalid without knowing the process and who was involved. The Members needed to be taken into confidence on what process was followed. The Members needed a more precise understanding of the process that had been followed, including the names of the people who had been involved in that process.  

The Chairperson clarified that the Committee had received 53 nominations. 21 nominations were valid. There were 32 invalid nominations. There were 17 applications. The 21 plus 17 gave the Committee the list of 38 valid applications and nominations.  

Mr B Herron (GOOD) said that the Committee needed to be sure it used the correct terminology when it spoke about ‘invalid’. He did not think that the 32 that were being referred to as invalid were invalid. They just did not accept the nomination. He noted the call for nomination. In the advert, it had been very clear what the requirements were to be appointed the Public Protector. It also required the nominator or the applicant to include a signed acceptance of the nomination. He was not sure that there was an obligation to go and ask all these people if they were aware they had been nominated. The duty was on the nominator to obtain a signed acceptance of nomination from the person nominated. The Committee needed to be careful of calling them invalid. They were persons that were nominated, but they never accepted the nomination. There was an obligation on the nominator to obtain that acceptance of the nomination.

Adv S Swart (ACDP) supported what Mr Herron had said. The advert set out very clearly the directions for the nomination process. However, there were very eminent persons who had been nominated. These included the Chief Justice, a Judge President, and other judges and top lawyers. These were not invalid persons. These were eminent candidates. They would be excellent candidates. However, they were not consulted and did not comply with the requirements for nomination. The Committee needed to make that very clear.

Ms M Tlhape (ANC) said that she supported the notion that the advert was clear on the 32 names that were invalid. The onus was on the nominator to inform the person who was nominated. This was a requirement. This had been discussed in the previous meeting when the Committee had looked at the advert. The advert, according to the Committee’s agreement, was clear and straightforward as to the requirements for nomination. The nominator needed to source the acceptance letter, CV, and all the required documents. She agreed that the 32 invalid nominations be set aside. Mr Dyantyi had proposed that the 32 be informed that their nominations were not successful. It had been agreed in the previous meeting, that according to the programme, when the closing date arrived and the CVs had been received, the Secretariat would go through that. The Secretariat would go through the process of determining which CVs were valid and which were invalid. The CVs would then be brought to the Committee and then published for public comment. She believed that the Committee was still on course. The Committee had agreed that the determination would be an administrative process. She agreed that the Committee should inform the 32 that their nominations had not been successful. The Committee should then allow the process to move forward and publish the nominations that were valid.

The Chairperson said that based on the discussion, and comments of Mr Herron, Adv Swart, and Ms Tlhape, it had been clarified why the 32 names must be set aside. They had not complied with the nomination requirements that there needed to be an acceptance letter. The duty was on the nominator to inform the nominee, and that the nominee accepts the nomination. There was no acceptance letter, CV, and qualifications for the 32 nominations. It was the nomination that was invalid and not the people who were nominated. The Chairperson recommended that the 32 nominations be accepted as invalid by the Committee because of non-compliance.  

Mr E Buthelezi (IFP) supported the Chairperson’s recommendation that all the names that did not comply with the requirements were considered invalid and be set aside.

Ms Maotwe said that the EFF objected to the recommendation.

The Chairperson said that the decision was that the Committee set aside the 32 names be set aside for noncompliance. The Committee considered the list of 38 names. The Chairperson recommended that the Committee accept the list of 38 applications and nominations as having passed the first sifting process. He also recommended that the Committee grant the Committee Secretariat permission to proceed with the publication of the 38 CVs for public comments for the period of 12 July to 21 July. He asked if any Member proposed acceptance of the recommendation.

Adv Swart proposed acceptance of the recommendation.

Mr Magwanishe seconded the acceptance of the recommendation.

The Chairperson said that the Committee had dealt with the two lists. He discussed the question from Adv Breytenbach as to when the Committee would narrow down the list. There was a response from Mr Dyantyi that the Committee was not at that stage at the moment. The 38 names were yet to be published for public comment. Thereafter, the Committee would meet to do a second round of shortlisting. This would be after the Committee looked at the public comments. He asked Adv Breytenbach if that response addressed the issue she raised.

Adv Breytenbach said that her concerns had been addressed.

The Chairperson said that Mr Dyantyi had raised a point that the Committee needed to clarify what it was inviting the public to comment on. The Committee was inviting the public to comment on the suitability of the candidates. The suitability was viewed against the selection criteria. He was not certain if the Committee needed to start to look at the attributes or qualities that each candidate must possess and publish those to guide the process. He asked the Members to provide guidance on the matter.

Mr W Horn (DA) said that ‘suitability’ might be a catchall phrase. The Committee needed to follow as closely as possible the wording set out in the Constitution, which dealt with the technical requirements. It also stated that candidates must be fit and proper. He believed that the Committee should include those specific words when it invited the public to comment on the suitability of candidates.

Mr Dyantyi agreed with Mr Horn. That was a very important aspect. The Committee anchored the work on this process in section 193. The Constitution had certain determinations there. If the publication was going to go out tomorrow or Friday, then he had hoped the Committee Secretariat would have provided something for the Members to look over. He supported Mr Horn’s point. He had asked his question because he wanted to avoid a ‘free for all’ public commentary when the Committee published the names. The Committee needed to clearly define what the expectations were. He did not want the Committee to be all over the place. He agreed that ‘suitability’ needed to be defined much more. He agreed that it needed to be anchored in the Constitution.

The Chairperson said that the Committee would say, ‘a suitable person for nomination as Public Protector must be a South African citizen, must be fit and proper, and must comply with the requirements as prescribed in national legislation’. The national legislation listed the specific criteria that the candidate needed to have. The Committee would make that clear when it published the names. The Chairperson asked if there was any objection. There was no objection from the Committee.

The Chairperson discussed the summaries of the CVs. The Committee Secretariat summarised the CVs of each candidate. The Chairperson asked the Members to comment on the summary of the CVs. What should the Committee publish?

Ms Christine Silkstone, Parliament Content Advisor, said that in the past Parliament had published the redacted version of the CVs. She said that the Committee should be cautious about publishing the summaries of CVs. It would be necessary to remove certain information, like personal information. In the past Parliament had published a redacted CV. Information like ID numbers or anything that would be regarded as personal information would be removed.

Mr W Wessels (FF+) said that he completely agreed. The redacted version of the CVs should be published. He agreed that summaries should not be published. He proposed that the Committee publish the redacted CVs.

The Chairperson said that there was an acceptance that the Committee publishes the redacted CVs. The summaries would be for the Committee’s own work. The Committee would only publish the redacted CVs. All personal information would be removed. The publication would also come with a guide that the public needed to look at the suitability. The Committee would define what it meant by ‘suitability’. The candidate needed to comply with the requirements as stipulated in legislation. The names would be published from today until 21 July. He reminded the Members that the Committee had set aside the period from 24 to 28 July for shortlisting. He did not think the Committee needed all those days. He asked the Members if they wanted to comment on the shortlisting process now. Would the shortlisting process be physical or virtual? Should the shortlist be a specific number? He noted that Mr Dyantyi had said the Committee should deal with the shortlisting after it had received the public comments. However, the Committee could decide on the specific number of candidates that it wanted to shortlist. What was critical was how the Committee got to the number. He was worried that if the Committee did not deal with the matter of shortlisting now, and left it for after the public comments, it would be too late for the Committee to plan its work. He suggested that the Committee meet immediately after 21 July to do the shortlisting. He asked the Members to comment on the shortlisting process.  

Mr Dyantyi said that based on his experience, he suggested that the Committee did not need more than one day for the shortlisting. One day would suffice for the Committee to do the shortlisting. The Committee could even take a half day to do the shortlisting. The Chairperson could then indicate which day would be that one day that would be used for shortlisting. He was hesitant for the Committee to decide on any number. He suggested that the process for public comment takes place. The Committee should not determine the number to be shortlisted. The Committee should deal with that later after it received the public comments. It just made more sense. The Committee was certainly not going to be interviewing all 38. However, it was premature at this stage to decide on a number the Committee would like to shortlist. The Committee should wait and see about the public comments. The Committee should determine the number for shortlisting at a later stage.

The Chairperson asked if the Members agreed that the shortlisting should take place on one day. The Members had not commented on whether the shortlisting meeting should be virtual or physical.

Mr Dyantyi said that the Committee had previously agreed that today’s meeting would be the last virtual sitting. For the shortlisting, the Committee needed to be in one room. The Committee needed to do the shortlisting physically. The interviews would not necessarily be done virtually, in order for it to be effective. He supported a physical setup.

The Chairperson said that Mr Dyantyi was making a firm proposal. Firstly, the shortlisting must take place over one day. Secondly, the meeting must be physically in Parliament. Thirdly, the Committee should not specify the number of the shortlisted candidates, and the Committee should wait until after the public comments. Was there any objection to that firm proposal?

Ms Maotwe said that Mr Dyantyi spoke on behalf of the ANC. He was not the Committee’s spokesperson. The Chairperson should not always ask for Mr Dyantyi’s comments on things. This was a Parliamentary Committee. All the Members needed to be allowed to speak. Mr Dyantyi spoke on behalf of the ANC and not the other Members of the Committee.

The Chairperson said that Ms Maotwe was actually supporting Mr Dyantyi’s firm proposal. He asked if there was any objection to Mr Dyantyi’s proposal. There was no objection. The Committee had done sufficient work to take it up to the date between 24 July and 28 July. The Chairperson asked if the shortlisting should be on a Tuesday or a Wednesday.

Ms Maotwe proposed that the shortlisting happen on Monday, 24 July.

Mr Horn suggested Tuesday, 25 July. This would allow the Secretariat to circulate the comments to Members on the Monday before the Committee started the shortlisting process.

The Chairperson said that that would also allow the Committee a day to order the information. It would also allow the Secretariat to make an orderly presentation to the Committee. The Chairperson asked if Tuesday or Wednesday would be fine. The Members needed to consider the amount of effort needed for the information to be put before the Committee.

Mr Wessels said that it was fair and sufficient if the Committee did the shortlisting on Wednesday. He proposed that the Committee meet on Wednesday, 26 July.

The Chairperson asked if there was any objection to the Committee meeting on Wednesday, 26 July. The next meeting of the Committee would be on 26 July, to do the shortlisting.

Mr Dyantyi supported the proposal that the Committee meeting on Wednesday, 26 July.

The Chairperson thanked the Members for attending the meeting.

The meeting was adjourned.