Public Protector Vacancy: results of suitability screening & interview process

Meeting report

Chairperson's Opening Remarks

The Chairperson said the Committee had entered the last phase of appointing a Public Protector. The Committee will be conducting interviews on 23 and 24 August 2023. As agreed, the Committee was meeting before the interviews to review the reports from the SSA, and SAPS, and the suitability screening results from the Parliament’s HR department. Parliament’s HR department had been tasked with conducting suitability checks on the candidates and confirming their qualifications. The Committee also had to discuss the questions that would be asked in the interviews beforehand to get a sense of how the interview process would proceed. The interview process was open to the public. The interview questions were not included in the day’s agenda but would be included to formalise the interview process.

The suitability screening results discussion was open to the public. However, the discussion on the public protector interviews would be closed to the public because the interview questions were confidential. The Committee Secretary, Mr Vhonani Ramaano, would share with the Committee a letter received from one of the nominees, Mr Macbeth Ncongwane, who complained about the candidate shortlisting process followed by the Committee in appointing the Public Protector. Should Mr Ncongwane’s correspondence be discussed in a closed or open session?

Agenda

The Committee was requested to adopt the agenda before the meeting proceeds.

Mr R Dyantyi (ANC) adopted the agenda and made a suggestion for the Committee to meet on 23 August 2023 before the interviews to discuss the questions that would be asked in the interviews.

Adv G Breyenbach (DA) seconded Mr Dyantyi’s suggestion.

Interview Questions

The Chairperson said the Committee would discuss the interview questions in a closed session on 23 August 2023, just before the interviews began.

Ms O Maotwe (EFF) said she thought the Committee was going to discuss the process in which the Committee would ask questions during the interviews and not the questions themselves. There was nothing wrong with having that discussion at that moment because it would not be possible to deliberate on 23 August 2023 as it was a short day and the interviews were scheduled to start from 09:00. The Committee could discuss the outline of the interview days, including when the Committee could ask questions to the interviewees.

The Chairperson said the Committee should discuss the layout of the interview process and not the interview questions. The Committee could meet for approximately 30 minutes to discuss the interview questions on the first day of the interviews.

Ms Maotwe seconded the Chairperson’s suggestion.

The Chairperson said the Committee would look at the results of the suitability screening first and discuss the interview process afterward.

Correspondence from Macbeth Attorneys

The Chairperson said the Committee received a letter from Mr Ncongwane on 3 August 2023 and he asked Mr Raamano to acknowledge the receipt of the letter on 4 August 2023 and indicate that the matter would be tabled at the next Committee meeting. Mr Raamano acted accordingly. Should the Committee simply note the letter as it did not affect the interview process and deal with it at the end of the interview process?

Mr said the Committee received a letter from a nominee for the Public Protector position, Mr Macbeth Ncongwane, related to the unfair shortlisting processes for the public protector position.

The letter referred to the moneyweb publication dated 30 July 2023, wherein eight shortlisted candidates were published. Mr Ncongwane did not believe that the process followed in the shortlisting process was transparent. The Constitution of the Republic of South Africa requires all processes by the state to be rational, transparent, effective, accountable, and responsive. Therefore, a high degree of care was required in the form of due process.

Mr Ncongwane was nominated and he accepted the nomination. However, it was not his inclination that after his nomination he was entitled to be shortlisted for the process that was underway. Instead, he was concerned about how the whole shortlisting process played out on the public platform.

Prima facie and based on the engagement of Parliamentarians, credence was not given that the process was transparent, fair, and open. It appeared further that the MPs were ticking boxes of only filling eight candidates. Mr Ncongwane accepted that about 38 candidates were nominated and therefore it was a mammoth task to run all 38 interviews given the constraint of time as the Public Protector needed to be appointed in October 2023.

Parliament had the absolute duty to run a process that was scandal-free, transparent and fair to all. The public must have faith in the process and no potential candidate should be left out due to a process that appeared to be rushed. Mr Ncongwane said he picked up from the Committee’s discussions that the Committee was merely ticking boxes and had no intention of engaging with the questionnaire submitted by candidates. There was no reason why candidates completed those questionnaires and volunteered so much information for the Committee to choose a fixed number of candidates it believed to be the Public Protector.

Which instrument was used to fix the number of shortlisted candidates to only eight? What instrument or criteria was used to single out other candidates without following the necessary audi? Why were candidates not allowed to comment on any adverse comments made in deliberation by the Committee before a final decision was made? Mr Ncongwane was persuaded that MPs failed to apply their minds in engaging the questionnaire thoroughly and therefore challenged the process because of the obvious lack of transparency and rationality and proposed that the shortlisting process be started de novo (from the beginning). The Committee should be allowed to engage with the questionnaire.

The Committee was therefore given until 3 August 2023 to give a proper directive on whether proper engagement was going to be considered. Mr Ncongwane reserved his rights in case no reasonable response was received by his office.

Mr E Buthelezi (IFP) asked if the Chairperson was suggesting that it address Mr Ncongwane’s concerns after the interview process or after the Committee addressed other agenda items.

The Chairperson said he was asking if the Committee should address the letter after the interview process during the deliberation stage. The Committee should give some guidance on how it wanted to deal with the letter and Mr Buthelezi’s suggestion was welcomed.

Mr Buthelezi said the Committee should address the matter before the interview process so the Committee knew where it stood on the matter and had no unaddressed issues when proceeding to the interview process. The letter should be addressed immediately because the letter sought to discredit the whole interview process.

Ms Maotwe said the letter should be addressed because the complainant, Mr Ncongwane, had specific questions about the shortlisting process and the Committee could explain the process it followed. After addressing the questions detailed in the letter, the Committee should send its correspondence to the relevant department. In the Committee’s previous meetings, the shortlisting criteria were discussed so the Committee could avoid any issues that may arise. Since the Committee had all the instruments or criteria used in the shortlisting process, the Committee should respond to the letter without any delay because what if Mr Ncongwane’s allegations were true, or what if he was wrong and the Committee’s criteria were acceptable?

Ms M Tlhape (ANC) said the Committee had followed a set criterion in its shortlisting process and the Committee should respond to the letter. When shortlisting candidates, the Committee looked at all the documents it had, i.e. the Curriculum Vitae (CV), questionnaire, the Constitution, Public Protector Act 23 of 1994, and criteria of character, skill, and experience. The Parliament’s legal team and Committee Secretary could have responded to the letter and detailed all the documents and criteria used in the shortlisting process. In any given circumstance, the Committee had the right to set a criterion when conducting interviews and thus it was not a matter of whether the Committee was right or wrong but about following the labour and law regulations and the Committee did that. In the letter, Mr Ncongwane said he was not implying that he was inclined to be considered but wanted clarity on the criteria and instruments used by the Committee and he should be given that clarity.

Mr G Hendricks (Al Jama-ah) said the Committee applied a set criterion during the shortlisting process. The Committee should share the criteria it followed with the complainant. Speaking from his experience as a Secretary-General of a trade union, he said Mr Ncongwane’s letter was an allegation that the Committee had been procedurally unfair and its unfairness led to an unfair dismissal. The wording might sound strange because Mr Ncongwane was not in any employment but from his experience, the allegations pointed to an unfair dismissal by the Committee who played the role of an employer. If Mr Ncongwane was dissatisfied with the Committee’s response, he could make an application to the Commission for Conciliation, Mediation and Arbitration (CCMA) for compensation or something else. It was important for the Committee to forward the criteria it used to the complainant, outline the inherent requirements of the Public Protector position, and communicate that the Committee made its decision based on the inherent requirements and the set criteria that assisted the Committee in identifying the inherent requirements.

The Chairperson said the Committee was on the same page about sending its correspondence to Mr Ncongwane as it had all the information that he requested. In exercising transparency, it was important for the Committee to discuss the matter openly to make people aware of the concern that arose and know how the Committee addressed the matter. In response to one of the questions in Mr Ncongwane’s letter, the Committee did not allow candidates to respond to any adverse comments made about them because the Committee did not make such comments about any of the candidates. The shortlisting process was as transparent as the Committee had said it was.

Mr Buthelezi said the candidates who made the top eight received the most recommendations from the Committee based on their CVs.

The Chairperson said the Committee would follow the approach discussed when sending its correspondence to Mr Ncongwane. He thanked the Committee for its guidance on the matter. Moving on to the next agenda item, the Committee would review the screening reports from the SSA, SAPS, and the results from the Parliament’s HR department.

Screening Reports

Mr Ramaano said the SSA conducted a preliminary security screening investigation on all eight candidates. The outcome of the investigation confirmed that all candidates were South African citizens and none had dual citizenship. There were no defaults registered against the candidates and no security concerns were discovered. The results were deemed as personnel suitability checks. Once a candidate was appointed, the SSA would fulfil its statutory Counter Intelligence mandate, which was to conduct a fully-fledged security vetting.

The second report was from the SAPS and the Committee received the requested information through the Parliamentary Protection Service (PPS) which liaised with the SAPS and other relevant institutions. The Crime Intelligence (CI) division within the SAPS coordinated the submission of fingerprints of shortlisted candidates for the position of Public Protector with the Criminal Record Centre of the SAPS for criminal record screening.

According to the feedback received from the Criminal Record Centre on 16 August 2023, no illicit activities were identified on the Criminal Record System for all eight candidates.

The Chairperson asked Mr Ramaano to share the suitability screening results from the Parliament’s HR department without showing the candidate’s Identity Document (ID) number.

Mr Ramaano said he could not delete the candidates’ ID numbers from the document.

The Chairperson asked Mr Ramaano to read the document without sharing it as the Committee had a copy of the report.

Mr Ramaano verified the completion and positivity of the qualifications of the eight candidates.  Thus, the Parliament’s HR department was able to successfully and positively complete the verification of the qualifications submitted.

The Chairperson said that HR only checked the highest qualification. If a candidate had two Master's qualifications, HR checked the latest qualification or the qualification that was most relevant for the post.

Mr G Magwanishe (ANC) said he was satisfied with the suitability screening results. However, it seemed that the HR department verified a Bachelor of Arts (BA) Law qualification for the fifth candidate. Did HR verify the fifth candidate’s Bachelor of Law (LLB) qualification because they could not practice with a BA Law qualification?

The Chairperson said that the fifth candidate’s highest qualification was an LLB which was not verified according to the HR summary report.

Adv Breyenbach said she agreed with Mr Magwanishe. The fifth candidate’s LLB qualification should have been verified and she would be very uncomfortable if that was not the case.

Mr Ramaano said there was probably an error in the HR summary report because the Lexis RefCheck validation report verified the fifth candidate’s LLB qualification.

The Chairperson asked for the person responsible for preparing the suitability screening results summary.

Mr Ramaano said he got the report from the HR department.

The Chairperson asked if the HR department had representation in the meeting.

Mr Ramaano said a representative from the HR department was present.

The Chairperson asked the HR representative to comment on the discrepancy between the qualification summary compiled by the HR department and the validation report.

Ms Fiona Southwood, Manager: HR Business Partner - Core Business, Parliament of the Republic of South Africa, confirmed that her team performed the verification of the qualifications through its service provider. She apologised for the error in the summary. The HR department will rectify the error and re-submit it to the Committee. She verified that the fifth candidate’s LLB qualification had been verified as Mr Ramaano had indicated.

The Chairperson asked if it would be safe to assume that the error only related to the fifth candidate and not any other candidates.

 Ms Southwood confirmed that the error was only made with the fifth candidate’s qualification.

The Chairperson thanked Mr Ramaano for briefing the Committee on the three reports. The work done was outstanding and completed within the deadline.

Ms Maotwe asked the Chairperson for an opportunity to take “a bite” at the candidates as the public, SAPS and the SSA had “their bite” at the candidates. The Committee, however, did not have the opportunity to reflect on the candidates. 

The Chairperson said Ms Maotwe’s request was not in line with the meeting’s agenda. The Committee would have an opportunity to have “a bite” at the candidates during the interview process. The qualifications issue would also be addressed in the interview process. The Committee was only dealing with the reports from the SSA, SAPS and Parliament’s Human Resource Department. The reports as requested had been presented and all candidates received a positive status. The Committee should reserve other matters for the interview process. If the Committee had any concerns or queries about the candidate’s qualifications, the candidate would have the opportunity to address those concerns during the interview process. He asked if Ms Maotwe disagreed with the suggested process.

Ms Maotwe said she wanted to persuade the Chairperson to listen to her. Committee members were ultimately politicians and they were dealing with a political process although it had other components, i.e. labour issues. As politicians, the Committee should have “a bite” at the candidates over and above the candidate’s qualifications. The process of appointing a Public Protector was a political exercise and corporate in nature. Thus, the process needed to be guided by politics. The Committee should have “a bite” at the candidates so that it does not contaminate the interview process by raising issues that may not be relevant in an interview setting. The Committee was doing well in terms of time and three minutes would be enough for her to raise her issues.

The Chairperson allowed Ms Maotwe to make her point.

Ms Maotwe said the political events over the past five years severely affected the Public Protector’s office. The mudslinging between members of the governing party, the office of the Public Protector, individuals in the financial sector and the South African Reserve Bank (SARB) has undermined the constitutional mandate of the august office. It was saddening because the matter arose after the Economic Freedom Fighters (EFF) fought diligently for the powers of the remedial action of the Public Protector to be recognised as binding and the EFF was keen on getting a court judgement. The ruling party has previously regarded the pivotal institution, designed to protect the public, as merely an advisory body whose remedial actions were not binding. The EFF, thus, took the matter to the Constitutional Court to affirm the powers and independence of the Public Protector. The Committee had the chance to appoint someone who could rejuvenate the institution, giving it a fresh start, through the upcoming Public Protector interviews. The EFF, thus questioned the suitability of the current Deputy Public Protector, Advocate Kholeka Gcaleka, who had been the Acting Public Protector for quite some time.

The Chairperson said Ms Maotwe was utterly out of order.

Ms M Lesoma (ANC) raised a point of order.

Ms Maotwe said she had not finished making her point and asked the Chairperson to allow her to speak.

The Chairperson said Ms Maotwe was completely out of order given that the Committee had dealt with that item. When he agreed to allow Ms Maotwe to speak, he thought she was making a point about the technical nature of the screening process. No space for Ms Maotwe’s point had been given the benefit of the doubt to speak without the Committee knowing what she had to say. Ms Maotwe’s comments should be reserved for the interview process. The point of order raised by Ms Lesoma was recognised.

Ms Lesoma said the Chairperson had addressed her point. She said she did not think that Ms Maotwe would refer to a single candidate when she asked to speak. The Committee was only addressing technical issues at the moment and the other issues would be dealt with when the Committee had the time, in an appropriate setting, as per the agenda.

Mr Dyantyi thanked the Chairperson for his intervention. After hearing what Mr Maotwe had to say, he raised his hand to speak but the Chairperson had conveyed what he wanted to say. The Committee should respect Ms Maotwe’s strong views but the Committee would have two opportunities to raise any issues it had with any candidate. The Committee could raise the issues during the one-on-one interviews with each candidate and during the deliberation stage of the appointment process. At that time, the Committee could raise any issues it had on the competence of the candidate or any other issues. Ms Maotwe’s concerns should not have been raised in the meeting.

The Committee should be cautious as it enters the interview phase and ensure that it was not seen to have any predetermined outcome on any candidate. During the shortlisting process, he said he was concerned because a certain organisation kept singling out the candidates it would shortlist and the candidates it did not want. Such behaviour should not continue because the appointment process needs to be protected. The Committee could not have any other parallel processes beyond the established criteria for appointing the Public Protector.

The Chairperson apologised to Ms Maotwe and said she could raise her concerns during the interview process.

Ms Maotwe asked the Chairperson to allow her to finish her point. She had already stated the majority of her points. The direction of her statement had been indicated beforehand. The Committee had the responsibility to allow the Public Protector's office and the public to have trust in the institution of the Public Protector. There was a lot of mistrust in the Public Protector’s office. While the Committee members came from different political parties and carried the mandate of those parties, they had a duty to highlight specific issues.

The Chairperson said that Ms Maotwe had already made her point and the Committee could move on to the next agenda item. 

Ms Maotwe said she had to raise her point because the Committee was addressing the suitability of the candidates.

The Chairperson said the suitability of the candidates could still be determined during the interview process.

Ms Maotwe said Ms Gcaleka should step aside as a Public Protector candidate for the Committee to deal with credible candidates who did not have any cloud hanging over them.

Ms Maotwe’s mic was muted.

Interview Process

The Chairperson asked the Committee to discuss the layout of the interviews which would take place over the following two days. The interviews would start on 23 August 2023 and the Committee would interview two candidates before lunch, namely, Adv Tseliso Thipanyane and Adv Kwena Thomas Ntsewa, and two candidates after lunch, namely, Adv Oliver Josie and Adv Lynn Marais. Each candidate would be interviewed for an hour and 30 minutes. On 24 August 2023, the Committee would interview Ms Muvhango Lukhaimane and Ms Johannah Ledwaba before lunch and Prof Boitumelo Mmusinyane and Adv Kholeka Gcaleka after lunch. Should each candidate be given five to ten minutes to introduce themselves before proceeding with the interview questions? The interview questions will be discussed on 23 August 2023, just before the interviews.

Ms Maotwe said the Committee should follow the same interview processes previously followed in the Public Protector interviews. Perhaps Parliament has a set interview process that needs to be followed. The Committee could review Parliament’s process to determine if it was still applicable. The Committee should not develop its interview process if there is an existing process that has worked in the past. Some Committee members were new to the process of appointing a Public Protector but perhaps, experienced Committee members such as Mr Magwanishe could share the process that was previously followed.

Mr W Horn (DA) said each candidate should be given a limited amount of time to introduce themselves. The Committee should avoid certain dangers and make decisions on certain things before the interviews. If the Committee failed to manage its time properly, then the interviews would proceed beyond the allocated time resulting in some interviews being longer than others. The Committee should divide the available time for questions between the Committee members. The time allocated should be strictly managed to prevent the Committee from going overtime. The Committee should address the issue around the order in which Committee members would ask questions and perhaps a rotational system could be used. Some interviews in the 2016 Public Protector interviews were longer than others and there was a risk that the last candidate’s interview would be shorter because the Committee would be trying to make up for lost time. Each candidate should be given five minutes to introduce themselves and depending on the number of Committee members who want to ask questions, the remaining time should be divided between each Committee member and managed by the Chairperson to structure the process accordingly.

Ms Lesoma said the Chairperson should suggest the process that the Committee would follow during the interviews. The Committee would then agree to one item at a time and move on to the next one. Each candidate should be given five minutes to introduce themselves or highlight any aspects of their careers that were not included in their CVs. The circulated interview programme included a time allocation and with the Chairperson’s guidance, the Committee should stick to it. As the candidates walk in, they should be advised about the duration of the interview. The Committee should also consider the time that the candidates might need to gather their thoughts on the questions asked. The Committee should ask questions on a rotational basis and follow-up questions should be allowed because the candidates’s responses might lead to more questions that need to be answered to inform the Committee’s deliberation session in making a final decision.

Mr Dyantyi said each interview would run for an hour and 30 minutes and when divided between 11 Committee members, gave each Committee member eight minutes to interact with the candidates. The proposed time allocation excluded the five minutes for introductions and time for the candidate to make any concluding remarks and with that in mind, the Committee should be aware that it could go beyond the time allocation of one hour and 30 minutes. He said he was planning on asking questions to all candidates. If a Committee member did not use their allocated time, another Committee member could use that time to ask their questions. The question rotation suggestion may not work because there should be a flow in which questions should be asked. Some questions warranted to be asked at the beginning or the end depending on their relevance and a rotation might ruin the flow and momentum of the interview.

Ms Tlhape agreed that each candidate should have a five-minute icebreaker which should address the questions that the Committee would discuss on the following day. The Committee should discuss how it would deal with follow-up questions. The time the Committee had would be insufficient if all Committee members had follow-up questions. Perhaps each Committee member should be given one opportunity to make a follow-up question. The time allocation should be set up in a way that allows the Committee as a whole to ask questions and prevent only a select few Committee members from asking their substantial questions. The allocated time and the follow-up questions needed to be managed accordingly.

The Chairperson said the Committee agreed that each candidate would have five minutes to introduce themselves, guided by the Committee’s questions. The Committee wanted to understand each candidate’s value system and experience in championing constitutional values such as dealing with maladministration and other forms of maleficence. Only the 11 permanent Committee members would be allowed to ask questions. Alternate members would not be allowed to ask questions due to time constraints. Follow-up questions would be allowed but tightly managed and limited to only one question. Committee members should give an indication if they think their questions are relevant instead of waiting for their allocated time to ask those questions.

Mr Dyantyi said follow-up questions should be made in the allocated eight minutes per Committee member. The Committee could easily abuse the right to make follow-up questions outside the allocated eight minutes.

Mr Hendricks sought clarity on how the political parties would ask questions because there were 14 political parties and it seemed like other parties would not have the opportunity to ask any questions.

The Chairperson said the Committee had 11 members and if alternate members were included, it had 24 members. Allocating 8 minutes per permanent member would work but might be a challenge if alternate members were allowed to ask questions. Political parties with alternate members could decide how they would use the time allocated to the main member. Perhaps the main member would allow an alternate member to ask their questions.

Mr Siyabamkela Mthonjeni, Committee Secretary, said all parties were represented in the interview process. Along with another individual, he represented the smaller parties, and if Mr Hendricks had any questions they could be forwarded to them. For the question session, perhaps each permanent Committee member should be allocated five minutes and alternate members should be allocated three minutes.

The Chairperson said it had been established by the Committee that the permanent Committee members would be allowed to ask questions and the alternate members could only speak through the permanent members. If there was any objection, it had to come from the Committee members.

Ms Lesoma said she would react to the previous speaker because she wanted to pretend like he did not say anything. The permanent members of the Committee should be given eight minutes to ask questions.

Ms Maotwe asked if the Chairperson would assist the Committee in managing the eight minutes or if it was the responsibility of the Committee members. The Committee should bear in mind that the eight minutes included the questions and the responses from the candidates.

The Chairperson said he would manage each Committee member’s eight minutes to allow them to focus on asking their questions.

Mr Dyantyi said the Chairperson should indicate when a Committee member should start asking their questions and when their eight minutes came to an end. During the eight-minute question session, a Committee member should be allowed to freely interact with the candidate without the interference of the Chairperson.

The Committee accepted Mr Dyantyi’s suggestion and said he would still play the role of a referee. Was there anyone who disagreed that each Committee member would have eight minutes to ask questions which would be managed by the Chairperson who also played the role of a referee and the interview process would be limited to permanent members of the Committee? The parties representing other political parties would decide how the questions for those parties would be raised.

Ms Maotwe said she agreed with the Chairperson and Mr Dyantyi.

Ms Christine Silkstone, Committee Content Advisor, said there was a document prepared for the Committee members and she wanted to introduce it so that the Committee could know how to approach the document.

The Chairperson said the Committee could discuss the document in a closed session.

Ms Silkstone said that she was worried because the Committee might be pressed for time on 23 August 2023 but agreed to reserve the discussion for the closed session.

The Chairperson said the document would be addressed the next morning even though the Committee might be pressed for time as the first interview was scheduled for 09:00. Did anyone have an objection to what was discussed? Should the first candidate be interviewed from 09:00 or should the Committee have a 15-minute discussion at 09:00? Since the discussion on the interview questions had been reserved for the morning of 23 August 2023, before the interviews, the programme needed to be adjusted accordingly and the candidates needed to be informed.

Mr Horn said the Committee could either have the discussion at 08:30 or take a 30-minute lunch break. The first candidate should be informed of any changes to their interview slot.

Ms Tlhape suggested that the Committee meet at 08:30.

The Chairperson asked if anyone objected to meeting at 08:30.

Ms Lesoma said the time for the transport arrangement should be changed accordingly for Committee members to meet at 08:30.

The Chairperson said the support staff would arrange that as there were different transports for the various locations. The firat part of the meeting would be closed to the public as the Committee would be dealing with the candidate’s confidential information.

Mr Ramaano said the Committee members who needed to make transport arrangements should contact him.

The Chairperson asked Mr Ramaano to send a message to the Committee so he could get the necessary responses.

Mr Ramaano said he had already sent the message to the Committee members who might have yet to see it because they were in a meeting.

The Chairperson said the Committee members should be dropped off at the Parliament by 08:30.

The meeting was adjourned.