Public Protector Interviews day 2

Meeting report

Chairperson: Colleagues, thank you very much. Can you assist the candidate to operate the mic[rophone], please? Thank you very much. Good afternoon… Sorry, good morning, Ms Muvhango Lukhaimane. Is the title correct?

Adv Muvhango Lukhaimane (PP Candidate): Muvhango Lukhaimane. The V is a soft B.

Chairperson: Come again?

Adv Lukhaimane: The VH is a soft B (pronounced Mubhango).

Chairperson: Oh, Muvhango. Ok, okay. Yes. Is the title correct, I said Ms Muvhango Lukhaimane?

Adv Lukhaimane: Well, I am an advocate but I just do not use it – but I am an admitted advocate of the High Court.

Chairperson: Okay. Right. Thank you very much for accepting our invitation. So, the practice is that we give you five minutes and we limit you to five minutes to briefly state why the Hon Members should consider you for nomination as Public Protector. Once you are done, I will ask one or two questions to confirm one or two things. After which I will… the Hon Members will then have time with you. Each Member will have up to seven minutes with you. Thank you very much. Are you okay?

Adv Lukhaimane: Yes.

Chairperson: So please, over to you [for] five minutes, just to talk to us. Thanks.

Adv Lukhaimane: Thank you, Chairperson. Good morning, Hon Members. First, let me thank you for giving me another opportunity to take a stab at this office. I think that given my qualifications, I am qualified to do the post. I have a legal degree up to my master's in law. I also have a master's in business administration, which is a qualification that has assisted me a great deal in running operations within organisations. I also think that as the point where our country is, I am well-versed having had the experience to run an office that deals with complaints, having had [an] experience in governance issues, and also having had [an] experience in public administration. Currently, I am an accounting authority at the Office of the Pension Funds Adjudicator – I was an accounting officer for a long time. In that environment, I reported to a board and also to board committees. I also chair the Government Pensions Administration Agency’s (GPAA) advisory board, so I know how to be on the other side where you are supposed to ensure that you are giving the necessary oversight to an organisation. I think that also the challenges that are facing the Office of the Public Protector and the country require at this point, someone who has proven experience in all those areas, governance [and] administration. And someone who has discharged themselves in a public office in a manner that shows integrity and also discipline and an ability to perform and achieve the mandate of an office within the resources that are allocated, and also making a difference in industry, and also to people and complainants that visit that office. I think I will start there.

Chairperson: No, thank you very much. And do confirm the disclosures you made in the questionnaire.

Adv Lukhaimane: Yes, I do.

Chairperson: Is there anything to add – anything else to add or declare?

Adv Lukhaimane: Nothing.

Chairperson: Thank you. Alright. And you were admitted as an advocate of the High Court in 1996, is that correct?

Adv Lukhaimane: Yes.

Chairperson: And from 2001 you worked in consultation services, you lectured, you worked [in] the pension funds environment, public service, and you are now back in the pension funds environment as an adjudicator, is that correct?

Adv Lukhaimane: Yes. Yes.

Chairperson: For how long did you practice as an advocate?

Adv Lukhaimane: When I was lecturing, you know, lecturers we have a lot of time. Once I was admitted and I was lecturing, throughout my lecturing I also practiced at the local High Court and also at the magistrate's court. At the High Court, I also served as an assessor in criminal matters. So throughout my lecturing up to 1999, I was also practicing.

Chairperson: So you practiced as an advocate from 1995 to 1999, is that correct?

Adv Lukhaimane: Yes, from when I was admitted – from 1996 onwards.

Chairperson: Oh, from 1996 to 1999?

Adv Lukhaimane: Yes.

Chairperson: Alright. And are you still registered with… Are you a member of any bar?

Adv Lukhaimane: No, I am not.

Chairperson: Are you registered with the Legal Practice…

Adv Lukhaimane: Council?

Chairperson: Council.

Adv Lukhaimane: Yes, I am.

Chairperson: Okay. You have accumulated vast experience and knowledge and experience in the pension funds environment. In your view, in what way will that benefit the Office of the Public Protector?

Adv Lukhaimane: In the manner that pension funds are structured, pension funds are business enterprises [in] the way that they are structured. So what we do currently in our offices, we deal with complaints that come from pension fund members or administrators funds, any stakeholder or even employers. The way that I would benefit the Office of the Public Protector is that one of the things that we look at is maladministration, which is also one of the things that the Public Protector is tasked to do. So if you look at what the complaint is from a pension funds member, one of the things that we are tasked to look at is maladministration; and maladministration, really, in the pension funds space, it goes to the rules, it goes to the legislation, and it is even much higher in that space because pension funds offer fiduciary duties to the members. A fiduciary duty is something that is over and above just the rules, because you sit in a position of trust, and therefore, in an office where you are supposed to discharge a mandate without fear or favor or prejudice, you should not… and also, you are dealing with an issue of fairness: fairness also goes to those aspects of trust. Therefore, I believe that in this space, I was required to almost police entities at a much higher level of responsibility towards their members than what is expected in the position of the Public Protector. But I think that where the country sits, we are at that position where you require someone who will look much further and actually give not just substance to outcomes, but also deal with the spirit of why the Constitution also felt there should be an Office of the Public Protector.

Chairperson: Do you have any investigative experience?

Adv Lukhaimane: Yes, our office is supposed to resolve complaints of members. Therefore, in order to do that, we are supposed to investigate those complaints. And when we investigate, we do not look at it only what is submitted before us, we go further to look at information because although I am called the Pension Funds Adjudicator, that is just the status of what comes out at the end; we actually are tasked in terms of our mandate to investigate, which means at the end of the day, we cannot leave loopholes, we have to look at all the facts, the facts have to make sense and then weigh those facts against the law to see whether everybody acted in the manner that they were supposed to.

Chairperson: Thank you very much. Colleagues, we can now ask questions. Who do I start with? I start with Hon Mananiso. Alright, I start with Hon Mananiso, and then we will follow the same list as was yesterday.

Ms J Mananiso (ANC): Thank you, Chairperson. Welcome, Ms Muvhango, and all the best. Madam, with your articulation now in terms of taking us through on what you have in terms of the experience and knowledge and skills, if you were to be appointed the PP, what is it that you think you can bring as innovative measures in the space?

Adv Lukhaimane: Thank you very much, Hon Member. I think that in terms of innovative measures, I did see that when I was going through their (Public Protector South Africa) 2021/22 Annual Report, they would, in this past year, have implemented a case administration system. I think one of the things that I will bring to the office as innovation, is really to look at how they can exploit that case administration system, because in the space that I am in now we managed to implement a case administration system back in 2013, that now really is not only a management tool but gives us business intelligence information to also be able to feed certain kinds of information back to the regulators back to our stakeholders for them to improve on what they are expected to do. So I think one of the things that I will look at is that. Also, they do talk about the fact that they have cases that might be much older – so they have sort of a backlog. I will have to look at what were the causes of that backlog. I did not see anywhere where they talked about a business reengineering exercise. So we will have to look at a business reengineering exercise that really says given the capacity that we have, and the caseload that we have, and the nature of the complaint that the Office has, what is the best procedure to deal with the cases; are we structured properly to be able to do that; are there areas where we can prioritise; are there are areas where we can deal with measures in like having an early resolution system that then deals with other complaints much quicker, because one of the things that I saw was that in that classification of complaints, they did not, in that year – which is the last available year of annual reports thus far – they did not have any complaints that they registered is complex. Therefore, we have to look at why if there are no complex cases, we are ending up with a situation where matters are not being finalised within a reasonable time.

Ms Mananiso: Okay. So as you know, the PPSA is one of the trusted and used offices by most vulnerable and marginalised groups. How are you going to ensure that in this era of 4IR (Fourth Industrial Revolution) you would be able to touch those that are actually seen as far in terms of having network connectivity to access your office services?

Adv Lukhaimane: I think one of the things that I will do is that, first of all, we should have a policy that defines who is a vulnerable complainant, because in different environments who is vulnerable differs. Yes, people in rural areas will most surely fall into that category of vulnerable; but then we look at… In terms of developing that policy, we must first look at, in terms of the complaints that we handle, who is a vulnerable complainant because also vulnerability might go to the impact of delaying to resolve a complaint; it might be quite severe in one instance, than in another. So what we will do is once we have a policy in place, we will then develop an action plan. And I think to rural areas it is really to… it goes to working with community based organisations that have sort of the same kind of mandate that can reach people easier because the Public Protector’s Office cannot be in all the areas. But one of the things that I saw also in the annual report was that there was a disconnect between the regional offices and the provincial offices versus the head office in terms outreach programs; it looked as if outreach is happening mostly at head office, whereas the offices that are outside, right where the people are, those are the ones that should be really ramping up in terms of programs, in terms of working with community based organisations, and also in terms of educational opportunities around where they based to say are they really leverage leveraging on all organisations around.

Ms Mananiso: Okay. Understanding the roles of Chapter Nine Institutions and the office of the PPSA, what is it that these things might be the gaps in terms of all these institutions working together; and if you were to be appointed, what is it that you can bring in to close that particular gap?

Adv Lukhaimane: I think that one of the things that is a gap is that we… Yes, I saw that they all have MOUs (Memorandum of Understanding) to work with each other, but there are instances where situations are cross-cutting. It might be that somebody comes to report a matter of maladministration or there is a systemic issue. It must be that off the bat, there is an agreement that where such an investigation might have an impact on people's basic human rights, maybe the Human Rights Commission gets involved. Where there is an aspect that can also impact on gender issues, that organisation must be involved. So, they must… It must not be a matter where the Public Protector goes [and] investigates a matter, finishes it, and then hands over certain aspects to the other organisations; the investigation must be done in a manner that involves everybody because then you close the gaps, where certain information and facts will fall in the loopholes if everybody is looking at their mandate. For an example, in the environment that I am in now, a person might have a retirement annuity. They come to me, they complain about the outcomes of the product to say this investment has not grown. But if you look at it, you find that the advisor that sold the product, sold [it] by giving the person false information. So if I deal only with the aspect of the investment, and I do not look into what happened at the beginning. And the FAIS ombud looks at what happened in the beginning. He also says it is fine, you signed-off the documentation, but had we looked at that together, we would have seen that this person was sold their product under false pretences, that is why they ended up with the outcome like that. So, there is a need to work together because if you only focus on your mandate, certain things will fall in the cracks.

Ms Mananiso: Okay. My last question then becomes what would be your special project as the PP?

Adv Lukhaimane: I think that one of the projects really has to be looking at prolonged suspensions of people in organisations that have a negative impact on both service delivery and people’s careers where, in certain instances people on contracts, their contracts will just be allowed to lapse because they are not needed, they are suddenly inconvenient. No one deals with the fact that this person actually raised an issue and when they raised this issue they were quickly suspended: no investigation, nothing. And the excuse is that they, you know, you have been paid therefore, what is the issue – and then your contract runs down. In certain instances full time employees are suspended for long periods of time, they come back when they are just shoved into an area and nothing happens to the people that suspended them. Especially for those on contract, I mean then you contract lapsed and you are left with a cloud and nothing has happened to anyone. So I think that is one of the things that I will look at because it has got an impact on service delivery, for starters, and it also has an impact on resources – both human and financial resources. And those kinds of actions also go a long way to creating an environment almost of distrust and fear in organisations, that if you do what so and so did, you will be suspended, your career will fall apart and all those things. So I think that is one of the things that I would want to really have a look at.

Ms Mananiso: Thank you, Chairperson.

Chairperson: Thank you very much. Thank you very much, Hon Mananiso. Adv Breytenbach?

Adv G Breytenbach (DA): Thank you, Hon Chairperson, and good morning, Madam.

Adv Lukhaimane: Morning.

Adv Breytenbach: You say in your questionnaire that you have the necessary qualifications, skills and competencies to adequately discharge responsibilities as a Public Protector. What do you… How do you see the responsibilities in the Public Protector?

Adv Lukhaimane: Thank you. The responsibilities of the Public Protector are to investigate maladministration and abuse of power in the area of public administration and state institutions. And in doing so, they must act impartially and without fear, favour and prejudice. I think that my career thus far shows that I have been able to… I have collected the skills, first, required to be a fit and proper person to discharge the position, but also I have acted in a manner that indicates that I am able to act without fear or favour or prejudice, and also act in an impartial manner. I have been in… Also, if you were to look at my career, should you go back to any institution, they will be able to sort of attest to the fact that even when faced with fairly difficult decisions, and very difficult circumstances, and complex situations, I have been able to come out on the ethical side of whatever it is that might have been facing us at the time. So I think that I possess the temperament and the sort of… I am also not politically naive: but I am actually politically astute to be able to, in an organisational sort of way, to be able to understand the lay of a situation and make use of my skills to make sure that an organisation achieves its mandate, no matter what might be happening around.

Adv Breytenbach: Thank you. And then, interestingly, you say in your questionnaire – discussing the investigations done by the Public Protector – you say ‘it includes investigations into the conduct of every government institution (including the intelligence services)’. Why did you include that, and why is it in brackets? Why are you making that point?

Adv Lukhaimane: I think that if we go to the situation… if we go to the fact that everybody is equal before the law, and that we follow a situation in South Africa when there is rule of law, and also that we are a constitutional democracy; what we saw happening also at the Zondo Commission, which was an aspect that came about because of an investigation from the Public Protector's office, you saw a situation where we risk creating a different kind of public servant that is actually not accountable to anyone. The Public Protector’s Act is clear, it says that you look into everything. But there seems to have been some sort of agreement over time. I do know that they used to have an MOU, the intelligence services used to have an MOU that, I think, lapsed a long time ago – in 2013 or so it lapsed. I think that is public knowledge. Since then, nothing has stood in its place. We have all sat and heard about the abuse of resources within the security agencies. We have heard about the repurposing of the agency. So if we really are saying that everybody is equal before the law, and there is rule of law, why is it that we have this section of public servants that cannot be looked into? And we then tend also, in that environment, to be fixated on the authorities' maybe interference; yet, no executive authority ever went to the State Security Agency and signed out money. It is public servants that are doing that. And they might sign out two million and give the executive authority one million.

Adv Breytenbach: Okay, thank you. I follow your answer. I need to ask one more question, and I am running out of time. What is the extent to which an administrative decision is susceptible to review under the South African constitutional order?

Adv Lukhaimane: An administrative decision, is it susceptible to review for its legality, to say: did you act within the law when you took that administrative decision.

Adv Breytenbach: And from where does the court’s power to review administrative action derive?

Adv Lukhaimane: From PAJA (Promotion of Administrative Justice Act).

Adv Breytenbach: Anything else?

Adv Lukhaimane: The court also has inherent powers to review the actions of people that were acting within the public space – people that have public power.

Adv Breytenbach: Thank you. Thank you, Mr Chair.

Chairperson: Thank you very much. Hon Maotwe?

Ms O Maotwe (EFF): Thank you, Chair. Good morning, Adv Lukhaimane.

Adv Lukhaimane: Good morning.

Ms Maotwe: How are you?

Adv Lukhaimane: I am well, thank you. How are you?

Ms Maotwe: I am well. Looking at your CV, you have been with the Office of the Pension Fund Adjudicator for just over a year – sorry, ten years – and you held very high responsibilities in that office. You just said earlier on you were before, and when you were here, you spoke about the delays of payments and employers failure to pay the benefits. What is the current situation? Would you say we are still in the same situation or what has changed?

Adv Lukhaimane: Thank you for that question. We are more or less in the same position. In fact, if you talk about the issue of payment of benefits, that is usually why people come to our office. They will come and complain that their benefits have not been paid. But what we will then discover is actually that sometimes the employer was just deducting their contributions without even having registered them, or the employer has not even paid over those contributions to their fund. So we actually have a compliance problem. And that goes right through; whether it is private sector, business, municipalities. The problem, then, is that apart from the fact that people's retirement benefits are not accumulating their interest and everything, should something happen to that member – they pass away – then the risk portion of the benefit, which might be five times your annual salary, will not be paid because the insurer did not get the premiums on time. Because with risk, once you do not pay for a month, that lapses. So we are more or less in the same position. And I think also COVID has exacerbated the situation with many employers really falling on hard times.

Ms Maotwe: Okay. And then you said earlier on that there are commonalities between [the] Public Protector’s functions, or responsibilities, and the Adjudicator, and you highlighted maladministration as one of the commonalities between [them] but also public engagement or involvement. So how do you think your experience that you have from the Office of the Pension Fund Adjudicator will assist at the Public Protector Office?

Adv Lukhaimane: In terms of stakeholder engagement, that is something very key because as the Public Protector your office is there to also create trust with people – with the public at large. So what we do is, I will have an instance where you sort of categorise your stakeholders. Once you have categorised your stakeholders, then I will develop engagement plans for each stakeholder because you cannot just say, ‘I am going to have a public session with all stakeholders’. Some stakeholders require that you sit with them in a room like this, and talk to them about what the issues are. And then some stakeholders, it is educational, therefore you interact with them even over a radio platform, others over webinars: you can do that. But I think one of the things that will drive that is that we will first internally have to arrange our data. If you have a look at the Public Protector’s Annual Report, you cannot really say what is the top issue; you can say what is the top department that they are looking at municipalities or whichever departments, but you actually do not know in terms of maladministration, abuse of power, and all those aspects that are really the mandate to look at. We all do not know the extent of that. That is where they should start, because they are never going to be able to look at… to be at all places at the same time. But if I am sitting in a government department and one of things being reported to the Public Protector is nepotism… [Feed was temporarily disrupted]. I will be sure to ensure that whatever it is that I am doing is the nation facing, in terms of problems that come to be reported to the Public Protector's Office. Right now, we do not know. But if you pick up the AG (Auditor-General)’s report, you know irregular expenditure, you know, fruitless expenditure, you know, failure to abide by supply chain processes. In the Public Protector’s report you do not know that, an office that has been there for almost thirty years. Every citizen says to you ‘corruption, corruption’ but we do not know exactly where we need to start, and this is the Office that should have been telling us start here. Make an impact here. Make a difference here.

Ms Maotwe: Thank you. And earlier on, taking back on the question of Hon Mananiso, you said one of the improvements on efficiency that you deployed; do you believe that you will be able to deliver the results that you expect?

Adv Lukhaimane: Thank you for that question. First of all, I have engaged in various organisational development interventions. If you look at my CV, I was the general manager of HR (human resources) at NIA (National Intelligence Agency). And that was at a time when they were going through all sorts of things, from restructuring to all sorts of things. So I do believe that in an environment where you have a spread of employees, like in this Office, you have got administrators, you have got investigators, you have got… you need to ensure that the employees… that you create an environment where the employees can actually deliver. You test the environment and you get a survey, but after getting that survey, you can create then focus groups, and say, ‘These are the results, but let us delve deeper into what actually people were saying’ because statistical information sometimes might give you a good picture, or might give you a bad picture, but when you start drilling down, you find that these are aspects that you can handle – then you put together a plan. I know that people like to say we have got an external service provider, but the most crucial aspect of making sure that an employment environment is conducive is line managers. Also make sure that the line managers are skilled in terms of communicating and interacting with employees. Where there are gaps you close those gaps. You make sure that the employees know that everybody in the organisation is accountable. I think one of the things in the Public Protector’s Office is you have in the person of the Public Protector, someone who has considerable powers within the organisation, and yet there are no governance…

Ms Maotwe: Thank you. I need to move to the next question before [the] Chair stops me. Now, if you get appointed as a Public Protector, we know that currently you would leave Pensions Fund Adjudicator with a cash balance of about R20 billion and you are operating on a surplus budget. So, moving into the Public Protector’s Office with limited resources, financial management becomes very crucial. So how will you make sure that you still execute the mandate within budget, and produce the results you would be proud of?

Adv Lukhaimane: Thank you. It is twenty million.

Ms Maotwe: Twenty million? Oh, sorry.

Adv Lukhaimane: I wish we had twenty billion. One of the things, like you heard me talk about the business reengineering exercise, we really have to look at whether there are efficiencies within the organisation; what are some of the things that we can insource. For example, when I started off at the Office of the Pensions Fund Adjudicator, there were many things that were outsourced, unnecessarily so, when there was staff to do that in the office, so that is where also you start: you say are we getting what we are supposed to get for what we have. [Where] There are areas where you see a little bit of under expenditure, then you go and look into those. But before we even go ask for money elsewhere, we have to be sure and certain that what we have been allocated is being used in an efficient and proper manner. And I think one of the things with the implementation of a case administration system, it also gives an opportunity to relook processes and that and also improve efficiencies. So just that implementation on its own means that there might be savings that are required elsewhere that there realised by the organisation. Once you have that, then you are able to say these are some of the crucial things that I need and if those are not funded, you request for that funding within, you know, reasonably so; year one, we intend to do this, year two, we intend to do this; year three, we intend to this. One of the things we cannot shy away from is that the country has limited resources, and therefore we all have to try and say we have efficiently used what we have been given [and]we have exploited all the other opportunities. Where we can have collaborated with other institutions and we are still coming short and this is crucial for us to discharge our mandate.

Chairperson: [Hon] Maotwe, pay back my two minutes. Alright, I now move to Inkosi Buthelezi.

Inkosi Buthelezi (IFP): Thank you very much, Chair. Good morning, Adv Lukhaimane.

Adv Lukhaimane: Good morning, Sir.

Inkosi Buthelezi: Since it is not your first time to apply for this position, what has your outlook on this position changed since 2016? For example, just one gap that you have identified [that] needs to be attended to, which you did not consider in 2016?

Adv Lukhaimane: Well… Thank you for that. I do not think that there is any gap as such that I have identified/ I think that I did not walk in 2016 feeling that I failed or anything. And I am not back because I feel that I am entitled to the position. I just think that I am in a better position now to fulfill, also, the functions of the Office. If you look at what I was able to do, in terms of my own improvement, as a leader, and what we achieved in the office that I remained with, I actually think that I am in a better position now. And I think also, I think you could not have had two Public Protectors at the time, so the feeling was that the current Public Protector is the one that was suitable at the time.

Inkosi Buthelezi: Okay. Yes. In your presentation you mention, I think, twice, about a particular point where we are as a country. What did you mean by that? Can you explain?

Adv Lukhaimane: Thank you, Chair. I think we are at a point… I mean, we are in a week where six persons admitted to killing a whistleblower just for doing their job. I mean, that is unheard of in a constitutional democracy. We all should be saying, is it really possible that in this country, with its Constitution, someone can be killed for doing their job – for raising alarm about my maladministration. So that is really where we are at.

Inkosi Buthelezi: Okay. In your different positions or responsibilities that you have performed, what can you say is your greatest achievement? And what can you attribute that achievement to your leadership style?

Adv Lukhaimane: To my leadership style?

Inkosi Buthelezi: Yes, to what can you attribute that in relation to your leadership style?

Adv Lukhaimane: I think that my greatest achievement would really be where we find the Office of the Pension Funds Adjudicator at the moment. When I took over… I mean, it is an office that has managed from last year to publish an integrated annual report. Some companies even in the private sector cannot think of issuing an integrated annual report. But we were able to do that because we were able to, on a sustained basis, make sure that both internally, we improve our processes, we can account for our resources, while at the same time making a real difference to the industry that we serve. Even when we went out on a limp on an issue, we have come out on the right side, as far as the Constitutional Court.

Inkosi Buthelezi: And the second part of my question: to what can you attribute that in terms of your leadership style?

Adv Lukhaimane: I think that I am a transformative leader. I believe that people must be given the opportunity to stretch themselves and be assisted with the necessary skills and environment for them to be able to achieve.

Inkosi Buthelezi: Okay. How do you deal with your weaknesses in the work environment?

Adv Lukhaimane: I take a deep breath first. I think that one of the things that you would have seen on my CV (curriculum vitae) is that I attended a course on women in leadership because sometimes our society is very patriarchal. And in the environment that I am in, financial services, I have been in [it] for a long time. Even when I started off as Sanlam, a long time ago, you would go to conferences, and there would be no traffic at all in the ladies bathrooms because there are no women. So I had to go and be skilled and be coached as how do I handle those aspects.

Inkosi Buthelezi: Okay, we take it that you take a deep breath to deal with your weaknesses. Let us just proceed. Have you ever used command decision-making methods in your career, and what do you understand this to be meaning?

Adv Lukhaimane: Combative?

Inkosi Buthelezi: Command decision-making method. And what did you understand of it?

Adv Lukhaimane: Well, if I understand it to mean that sometimes you take a decision and you ask the troops to march along with you, I have. Sometimes you can only debate an issue up to a point, and as a leader you have to take a decision and say, looking at my responsibilities in this organisation, this is where we need to be going. And then let us move in that direction. So sometimes it is necessary to say to people that [this] is our marching orders.

Inkosi Buthelezi: Thank you, Chair. I am happy.

Chairperson: Thank you very much. Now, I move to Hon Tlhape.

Ms M Tlhape (ANC): Thank you, Chair. Good morning, Adv Lukhaimane.

Adv Lukhaimane: Morning, Ma’am.

Ms Tlhape: Let us just go straight to business. What is your understanding of independence within the context of the Office of Public Protector? And how will you guarantee it to be independent in your duties if appointed [to the] PPSA?

Adv Lukhaimane: Thank you, Hon Member. I think independence means that you are not influenced by things that are irrelevant for your consideration. Also, independence means that you can be… you are impartial, and you are able to consider all aspects that are relevant to an issue and ignore those aspects that are irrelevant to an issue, and then act in accordance with the prescripts of your mandate, also, again, without fear, favour and prejudice; like really be someone who is also accountable and responsible once having taken the decisions.

Ms Tlhape: Okay. Now, earlier on when you were responding to Hon Breytenbach, you touched on administrative decision review being subjected to legality. Now, rationality, reasonableness, proportionality are critical legal principles that impact on legality. What is your understanding of testing rationality, reasonableness and proportionality? You can give examples of a case law.

Adv Lukhaimane: I think that in terms of rationality, reasonableness and proportionality, it really means that decisions, yes, can be tested in accordance with those, but rationality means that a decision sometimes can be lawful, but be irrational. And decisions have to both be lawful and also rational. So a rational decision is one where you make a decision where all the… what you provide as the basis is linked to the outcome. So I cannot consider a decision and then find that there is no basis on the facts to support that decision. I think in terms of the case law that has gone past the Office of the Public Protector, you would have seen that in one of these situations where they dealt with the issue of rationality was when they were dealing with the issue of the SARB (South African Reserve Bank) matter because in that instance the outcome was not linked to the investigation; like the Public Protector, they said that she had been irrational also in the remedial action that she had suggested.

Ms Tlhape: Reasonability, reasonableness and proportionality?

Adv Lukhaimane: Reasonableness goes to… In our law, there is such a concept as called ‘a reasonable man’: what would a reasonable man in certain circumstances have done. A reasonable decision is a decision that also, on the facts, you can link the facts to the decision that the outcome of investigation is reasonable to the extent that it is supported by the facts. Also in terms of proportionality, they are more or less the same concept in that also with proportionality, you are also dealing with something related to your remedial actions, and all of that, to say the actions that you take must be in proportion to what needs to be achieved.

Ms Tlhape: Now, if appointed to this position, what quality assurance mechanisms are you going to employ to ensure your reports are able to withstand legal scrutiny?

Adv Lukhaimane: Thank you for that question. In my current position we are forced to ensure that there is the highest quality control because when a judgment of mine is reviewed or goes to court, I cannot defend it. I therefore have to make sure that every aspect of a complaint is dealt with. So, that is also what I will do. I will make sure that, for starters, investigations are done by people that are qualified to do so, that the necessary questions are asked, that I also review those reports in detail before I sign off on them; because one of the things that the Public Protector’s Office has to look at now is that not only is it not cost effective, it is also counterproductive for the Public Protector to be defending their decisions in court. You have to make sure at the point of signing of that report, that it crosses all the T's, dot all the I's. And you only then have to defend decisions where you think that people are introducing new things or if there is something novel that might come out of that and then leave off fall by what you issued.

Ms Tlhape: Okay. In my last minute, you identified here on your questionnaire unemployment as a key challenge for South Africa’s society. What do you think are key reasons for the structural unemployment that we have?

Adv Lukhaimane: I think that one of the issues is really the way that our society is structured, for starters; the fact that, you know, in most instances, where you are born, might actually determine how your life works out. So, opportunities are not available equally to everyone and that seeps through the whole system. People… You end up, if you start off with the education system that you have, you end up in a situation where sometimes you are not able to exploit your own capacity because of the opportunities that you are exposed to. Then you end up with skills that are not necessary to drive the economy. And only a certain, then, of the population continues to access opportunities. And with the development of infrastructure being where it is, this just perpetuates itself. And therefore, the inequality continues and the unemployment also continues to have a very sort of blackface female face, rural face. And those things are not going to change unless we change the fundamentals.

Ms Tlhape: Thank you, advocate. Thanks, Chair.

Chairperson: Thank you. Thank you very much. Hon Horn?

Mr W Horn (DA): Thank you, Chair. Good morning.

Adv Lukhaimane: Good morning.

Mr Horn: I want to return to your answer about administrative action review and legality, and ask whether you would agree that fundamental to the principle of legality is that if you exercise a public power, you can only do it if authorised to do so; and to the extent authorised to do so and for the purpose of authorised to do so?

Adv Lukhaimane: Yes.

Mr Horn: Okay, then if that is a common understanding between us, I want to ask you then to explain the statement you made in the questionnaire where you said ‘remedial action proposed should not only be concomitant to the issue at hand but also serve as a deterrent to others to steer clear from such acts / behaviours in future because sanctions matter.’

Adv Lukhaimane: Yes, I think that one of the things that Public Protector Reports must do is actually also have a sort of educational aspect to it. In my current position, it might be that something is not really sort of the main issue in a complaint, but I will deal with that also, for purposes of, first, completeness, and also ensuring that if it is something that I think might be pervasive where there is an opportunity to say something about that, even if it is not critical to that complaint. But if it is there and connected to that complaint in some way, you deal with that also. So it is not that you will go beyond the issue at hand. But when you are dealing with an issue, you must not also be narrow minded about it because you risk a situation where an issue might be the same and just come in different forms. So I think…

Mr Horn: Yes.

Adv Lukhaimane: Sorry.

Mr Horn: So what is the essence of remedial action?

Adv Lukhaimane: The essence of remedial action is to ensure that what has been reported is corrected, and what should have been done is, is done; and the outcome that should have been ensured is taken care of – like it is implemented. The outcome is realised, not implemented.

Mr Horn: And to what extent does that definition allow for you to penalise wherever you as the Public Protector have found to be wronged improper?

Adv Lukhaimane: For myself as the Public Protector?

Mr Horn: No, whoever you found to have acted improperly, to what extent are you authorised to penalise them?

Adv Lukhaimane: Not per se, myself, but in making some of the… Some of the remedial action that you can make as the Public Protector is to say, action must be taken against somebody; that is a penal action. So are you not [only] saying correct what… You do not only say, correct what has gone wrong here, but you say, having looked at everything, the actions that led to this require some sort of a sanction. They cannot just be left alone, and we just correct and move on.

Mr Horn: Thank you. I now want to turn to your time at [the] SSA (State Security Agency): You, in your questionnaire, have also referred to the high level panel. And you make the statement; you have always ‘appreciated the importance of good governance, proper controls and accountability as demonstrated by my time in various roles at amongst others, SSA.’ But yet the very same high level panel has found that in that period, where you were heavily involved in a managerial role, it, A, became politicised and the pan system was operated. How can you claim that you have a track record of good governance and proper controls and accountability?

Adv Lukhaimane: Thank you for that question. Yes, I can. And I think that to the extent, maybe sometimes I might get to some extent, I will say that given the controls that we put in place, one of the outcomes said that it was that people resorted to the PAN Project. When I arrived at NIA as the general manager [of] human resources, they had just gone through a large intake of interns – I call them interns but they called them trainees. That one was mired in all sorts of things, [like] nepotism. Then, because the average age of people at that time was high, we knew that we needed new blood in the organisation. When the next one that I was in charge of came on, we made sure that we put in the correct recruitment processes in place. We set up panels for shortlisting. We set up questionnaires that will make sure that each and every person that is interviewed is interviewed on an equal basis; [we] made offers to people. So if you look at that intake, you will see that these were people that were put through the wringer, they were not connected to anybody and everything went well. Then, for the overall organisation, we started putting in controls. We made sure that you cannot sit as a manager in an office and promote somebody. We put together a personnel board. At that personnel board, if you want to promote somebody, you come, you sit, HR says whether that person qualifies or not, and then we put that. That is what, in a way, if you look at that, I also say we put together an integrated system. Our HR system was then integrated with the finance system, and also with a document management system. So we accounted for people, resources and even operational reports.

Mr Horn: Okay. Ma’am, but your very first or second sentence, I need to interrogate. You said ‘It is because of my good systems that people resorted to the system that led to Pan.

Adv Lukhaimane: Exactly.

Mr Horn: Now, explain to me, you were the general manager [of] human resources. One of the jobs of a general manager [of] human resources in the public space would be to weed out what we call ghost workers – I think for the current purposes, we can even call them spook workers.

Adv Lukhaimane: Yes.

Mr Horn: How can you claim that it is because of your successful practices that a whole parallel illegal system was operated under your nose?

Adv Lukhaimane: It was not under [my nose]. Remember that the way that the intelligence services are structured; you have got overt operations and covert operations. The PAN Project was not run as an overt operation; it was run as a covert operation. So once it goes and gets run as covert operation, resources are allocated, and you almost have a structure that is duplicated, that is a human resource function. Also in there, there were resources that was taken from the overt side and put in the covert side to say they will replicate those governance systems in there.

Mr Horn: Okay.

Adv Lukhaimane: The people that were required to ensure that oversight was done in there did not do that.

Mr Horn: Okay.

Adv Lukhaimane: I do not get to see what happened in that covert side, but the assurance had been that even with the resources that we hived off into the covert environment, the necessary oversight would be put in place. Because the way that the organisation was structured was exactly like that: covert operations are covert operations. The PAN was set up like that.

Mr Horn: But would you agree that even covert agents do have personnel numbers?

Adv Lukhaimane: Yes.

Mr Horn: Yes. So then how do they then fall out of the authority of a diligent general manager [of] human resources?

Adv Lukhaimane: Thank you for that, again. I think I will go back to exactly the same thing and say it is because you almost replicate that in there. Remember that the one system runs and it is open to everyone, to all my 230 HR employees or whatever. Those that would have access to the system, you cannot restrict on this side. Therefore, you have to take those resources that are running covert operations, put them in there and ensure that – they then have to ensure that the necessary oversight and the necessary actions are taken within that environment. I was not in the covert sort of side of the business but in the overt one.

Mr Horn: Okay. So then you move on to the Chairperson: Intelligence Services Council (ISC).

Adv Lukhaimane: Yes.

Mr Horn: Does that now include all personnel?

Adv Lukhaimane: It includes… What we do… What the ISC does was really to put together conditions of service and that. So we dealt with issues like reviews, policies, policy reviews that have to do with HR. So the way that the organisation was, you had those policies that apply to the open side, but also, when we review policies, we also put together policies for the covert side. So we did all of that.

Mr Horn: Okay. My last question, Chair.

Chairperson: Your time, I am sorry, is up.

Mr Horn: Okay.

Chairperson: My apologies. I now move to Hon Wessels.

Mr W Wessels (FF+): Thank you, Chairperson. Good morning.

Adv Lukhaimane: Good morning.

Mr Wessels: In your opinion, since the establishment of Public Protector, in what areas has the Public Protector been successful, to fulfill its mandate, and in what areas do you think there is more focus required?

Adv Lukhaimane: Thank you. I think that the Public Protector has been successful in the area of abuse of power. I think the matters that have come before them that had to do with abuse of power; they have managed to make dents there. I also think that in terms of just highlighting maladministration and what is acceptable and what is not acceptable, they have been successful. I think that also in highlighting the impact of lack of service delivery on your socio-economic rights, they have been really – especially in the area of municipalities – to show how the impacts of the failure for municipalities to discharge their duties have had on the surrounding communities and all that. So, I do not think that there are areas where I can say that they have failed as such; I can say that there are areas where they need more focus in order to improve.

Mr Wessels: Which areas?

Adv Lukhaimane: I think where public trust has really been eroded, has been around the issues of abuse. So I think there, it might be that whenever those issues come up, that question whether we are all equal before the law, and therefore should be treated in the same manner, I think they can do a lot better in making sure that the public accepts that everybody is treated equally.

Mr Wessels: Do you think the Public Protector should be more proactive and conduct more investigations on its own accord? And what criteria would you use if you are the Public Protector to decide to authorise such own initiative investigations?

Adv Lukhaimane: Thank you. Yes, I do think that the Public Protector should be more proactive in handling certain issues. And I think that those would be issues that I think that the criteria I would use this is issues that have an impact on prevailing problems in our communities. So I would have to look at what are the challenges that are facing us and then look at where the mandate of the Public Protector allows that we do investigations in those areas to really improve the lives of citizens.

Mr Wessels: In addition to the competency to investigate, you would know that the Public Protector Act also gives a mandate to resolve disputes. How do you see this function?

Adv Lukhaimane: I think that where… Resolving disputes, I think it is where I see the Public Protector working more to settle disputes by getting parties together, either through mediation. They can make use of – I am not sure to what extent they have got competent mediators – I think, can resort a little bit to mediation. And I think they can also make use of conciliation to try and… because in most of these instances, communities have to go and coexist after that, and therefore you also do not want [any] sort of bad blood. Where it is possible, I think they can resort to mediation, they can resort to settling matters and also make use of a little bit of conciliation.

Mr Wessels: What experience do you have in mediation?

Adv Lukhaimane: Well, in my current role, in resolving disputes we are not only limited to adjudication. We also settle matters; we can also refer matters to conciliators. So, I do have that experience of saying this matter will better be served by conciliation, or get the parties together around the table. And only if it remains unresolved, then we can deal with it in a formal adjudicative process.

Mr Wessels: We reflected on remedial action just now as well. But how would you address a situation where a state organ refuses to implement the remedial action or ignores [the] remedial action?

Adv Lukhaimane: Well, I think that after the judgment that says that remedial actions are binding, it is not open to a state organ to just ignore remedial action without them going through the formal process of setting it aside. So that will almost not be an option open to them. But if they fail to implement, then it is a question of dealing with what are their… where the accountability lies. I can raise that within… I can raise that with wherever the accountability lies; say it is the Minister of SAPS (South African Police Services), I can raise that with, say, the chairperson of the Portfolio Committee that deals with SAPS and say ‘There is this issue. I think it is an issue that is an issue that is important [and] needs to be dealt with. I issued this remedial action on this date; it seems as if it has not been implemented. Can you please, in your oversight capacity, deal with the issue?’

Mr Wessels: What do you think is the most important and most urgent thing to do to restore the confidence in the Public Protector – the public’s confidence?

Adv Lukhaimane: Yes, thank you. I do think that the reputation of the Office has taken a hit. And therefore, it will be one of the things that one needs to look at if you are successful. I think that goes to engaging with your stakeholders; really reverting back to your mandate and saying ‘This is my mandate. I will discharge it without fear and favour.’ I think also you will need to take on board your employees internally, reassure them that we are here. There is a mandate. We have a job to do. Everybody is valuable. Let us espouse the guiding principles that brought us into place and provide South Africans with the service that they require. And I think on that, I will also have to do periodical engagements where I show, you know, what has been implemented, where we are moving and… so that people know that you are also accountable to them not only in a formal space with annual reports and all that, but you also offer them the necessary engagement and, you know, proactively so when there is no problem.

Chairperson: Thank you.

Mr Wessels: Thank you.

Chairperson: I thank you, Hon Wessels. Hon Lesoma and then we do [Hon] Dyantyi.

Ms M Lesoma (ANC): Thank you very much, Chair. And good morning, advocate. You prefer to be called Ms Lukhamane?

Adv Lukhaimane: Lukhaimane.

Ms Lesoma: Lukhaimane, yes. Much better. Thank you so much for that assistance. Chair, through your good self, having listened to the responses, I would like to build up, partially, on the questions that has been asked by Hon Maotwe and also Hon Mananiso on the issue of efficiency and efficient, as it were. In your response, I will just pick one among the response[s] that you provided, is the issue of insourcing. Take us into your confidence having also… I assume you have gone through the latest AG’s report, which deals with the financials and the predetermined objectives in terms of the milestones that they would have set for themselves. In your opinion, what changes is required within the PPSA to improve efficiency, and efficiency without compromising the standards and also the turnaround, as it were. Thank you.

Adv Lukhaimane: Thank you for the question. I think one of the issues that is evident from the report in terms of having to deal with efficiencies, and also from the AG’s office, it is really the issue of internal controls. If you have a look at the annual report, there is almost a disconnect between the clean audit and what you see indicated as issues that have been flagged by internal audit. Those stretch almost three pages in the report. Some of them are basic things; some of them are things that require a lot of thinking and work. But, really, a large part of them is almost basic things that should never even have arisen in an internal audit report.

Ms Lesoma: Chair, if your response can focus on the key programmes of the PPSA, in terms of their core mandate?

Adv Lukhaimane: Okay. I think that in terms of their investigations, I will look at the caseload that they have and then work on prioritising cases that are old, so that we can finalise those. In terms of their stakeholder management, I did see that there is an issue in terms of the provincial offices. I will make sure that there is the necessary programs put in place for the provincial offices to implement their stakeholder engagements. And also on administration… Sorry, I think I just…

Mr Lesoma: No, it cannot be taken from my time, that disturbance, Chair – definitely.

Adv Breytenbach: Three seconds.

Mr Lesoma: Oh, it is you. I thought as much. You may proceed/

Adv Lukhaimane: I think also on the issue of administration I will then also ensure that all aspects in terms of improving on the human resources aspects, especially they talk about the lack of skills and all that, that we deal with those issues and we capacitate the organisation.

Ms Lesoma: Okay, thank you. Just a quick one, Chair, through you. The Constitution makes accountability by those entrusted with the state power central while entrenching citizenry participation. What is your understanding of accountability of the state and citizens? Also, who guards the guard? Thank you.

Adv Lukhaimane: Well, accountability means that our decisions, first of all, we must discharge ourselves in terms of the Constitution and the law, and that we should account for our actions whenever required to do so fully, by the Constitution and the various laws that we would be subjected to. So, I did not… Can you repeat the last part of the question?

Ms Lesoma: Okay, it is the accountability of…

Adv Lukhaimane: Oh, who guards the guard?

Ms Lesoma: Yes.

Adv Lukhaimane: Yes. I think that there are enough safeguards in our Constitution to make sure that those exercising public power are held to account; we just have to implement those and ensure that everybody is held to account. I think there are sufficient safeguards in the Constitution and in the various legislation to ensure that everyone is accountable; it is an issue of implementation in most cases.

Ms Lesoma: Okay, thank you. Chapter Nine Institutions…

Chairperson: Thank you.

Ms Lesoma: No, my other thing, Chair. Chapter Nine and Chapter Ten are viewed constitutionally as independent bodies. How do you, if you get appointed, ensure that perception of being independent is upheld by the citizens?

Adv Lukhaimane: Thank you. I think that I will discharge my duties in a manner that will indicate that I cannot be influenced by anybody. I think that also in carrying out investigations, I will ensure that, for example, not one investigator sits on important or key investigations. I will also ensure that for my own sake, and for the sake of the Office, I do not, where people request to come and see you and all of that, you do not do that on your own; you do that with the investigators that are responsible for the matters, so that you also build their confidence for the Office and that you can always account.

Ms Lesoma: Okay, thank you. The last one, Chair.

Chairperson: Sorry.

Ms Lesoma: Oh, my time is up?

Chairperson: Yes, your time is up, Hon Lesoma.

Ms Lesoma: Thank you.

Chairperson: Thank you very much. I now move to Hon Dyantyi.

Mr Q Dyantyi (ANC): Thank you, Chair. I, just to put it on record, have asked Hon Magwanishe to give me his time, so I am going to utilise it. Ms Lukhaimane, you are in this venue; you are here today: how bad do you want this position?

Adv Lukhaimane: Well, thank you, Chair. I do want the position, and I do want it for purposes of serving the public.

Mr Dyantyi: Just to confirm, you did not commit today because you feel entitled to this?

Adv Lukhaimane: Not at all.

Mr Dyantyi: Thank you. Maybe let me…

Adv Lukhaimane: I also trust in the recruitment process. [feed disrupted for two minutes].

Mr Dyantyi: I am giving you another opportunity. Is there anything else that would not have been asked that you think… so that if it comes tomorrow you would have said ‘I have declared that.’? Anything else you think you should tell us?

Adv Lukhaimane: Not that I know of, no.

Mr Dyantyi: Okay, thank you. Let us proceed. You have spoken about you being fit and proper. Share [with] us your understanding of what it means to be fit and proper. The Constitution does not define it; it says that you must just be fit and proper.

Adv Lukhaimane: I think that fit and proper, first, would mean that you have the necessary qualifications, but also it goes to your stature as a person to say: are you a person of utmost honesty? Are you a person who can be with integrity who can be entrusted to act in good faith at all times? Not only when people are watching, but also when there is no one watching.

Mr Dyantyi: Yes. There is a case law in relation to fit and proper. Do you know about it?

Adv Lukhaimane: I think the only issue that I know that came up would have been the Jiba matter, and that went to the issue of being admitted as an advocate and then being… So I think that is the case law that I know. But I also think that in this instance, you almost require also a higher threshold in terms of what you are looking for, not just for admission as an advocate.

Mr Dyantyi: Thank you. Let us move to the next point. Take your water, I will wait for you.

Adv Lukhaimane: I am almost done with it. I am hoping you will finish before I…

Mr Dyantyi: No, I am not about to finish. Thank you, Chair. Let us move on to the next point. I will be just quick on this. The evolution of this Chapter Nine Institutions, have you studied that and can you share your own understanding of how they have evolved in this Legislature and in the country?

Adv Lukhaimane: Well, I think one thing that I did have a look at in terms of the Chapter Nine Institutions was where they… the review done by the Kader Asmal Initiative, where they really looked at the offices; what were some of the challenges they went through. Mostly [it looked into] how they were structured, how they are funded and all of that.

Mr Dyantyi: Yes, thank you. We can pause there. I am happy with that. Maybe to conclude that issue. So the Kader Asmal exercise focused on the efficiency and the functionality of these institutions. That was 16 years ago. And it is 2023 now, [and] we have just concluded a process where the focus was on the incumbent in that Office. What went wrong?

Adv Lukhaimane: I think that what went wrong was really…

Chairperson: So I am not giving you the full allocation for Magwanishe.

Mr Dyantyi: At least half of that is fine.

Chairperson: Yes. No, it is fine. Half of that is fine.

Mr Dyantyi: Thank you, Chairperson.

Adv Lukhaimane: I think what went wrong was that the person of the Public Protector possesses a lot of power and authority in the Office and also outside of the Office. And therefore, you almost need a situation where that can also be to say, where do you check the accountability of that person because you did not also have an issue of the investigations having gone wrong. You also have an issue of staff not being treated in a manner that was… and resources not being spent in a proper manner.

Mr Dyantyi: Thank you. My last two points, Chair. Thank you. Just on investigations. The Constitutional Court in the CIEX matter, one of the judgments it made on the PP was that she embarked on [a] flawed investigation model. There is a case called the Mail & Guardian case on the investigation. Do you know about it?

Adv Lukhaimane: Yes, the Mail & Guardian one, yes. And even the CIEX one.

Chairperson: Okay. So Judge Jafta, in arguing for an open inquiring mind, makes the following points: this mind should not be unduly suspicious; it should not be unduly believing. How do you navigate these two contrasts if you are to be a Public Protector?

Adv Lukhaimane: I think that the way you navigate them is almost to start off your investigation as if you are completing a puzzle, to say this is what is supposed to have gone wrong. And therefore in completing that puzzle, you look at the facts, you answer the questions that help you complete the puzzle. And you complete the puzzle as far as possible, because you are almost the one Office that can delve into the facts; subpoena people [and] get documents.

Mr Dyantyi: Thank you. Let us pause there. My last point. Have you identified any risk in this Office that you pray to be the new Public Protector of? Any risk that you have identified. And if you did, what are those two risks that you will put in your risk management plan?

Chairperson: In [a] few seconds. One, two…

Mr Dyantyi: Thank you, Chairperson.

Adv Lukhaimane: I think of the risks might be [the] loss of key. Sometimes when there is uncertainty in an organisation, key staff tend to want to leave – or critical staff want to leave. So for that, you need to reassure people that there is a mandate that needs to be dealt with and how you are going to go about it. And I also think that the other risk is one that goes to the reputational damage of the organisation to say that it does need to be dealt with, because…

Mr Dyantyi: Thank you. Thank you. There is water for you.

Chairperson: Thank you so much. Just [the] last two questions from me. What is the budget for the office?

Adv Lukhaimane: For the Public Protector’s Office?

Chairperson: No, your office.

Adv Lukhaimane My office? Now we are sitting at, I think, ninety million, just under ninety million.

Chairperson: Nine zero?

Adv Lukhaimane: Yes.

Chairperson: The appropriation is how much – the appropriated amount?

Adv Lukhaimane: Well, we raise our money from levies.

Chairperson: Oh, from levies.

Adv Lukhaimane: From levies of pension fund members. That is how we receive our money.

Chairperson: Up to ninety million. And the staff compliment?

Adv Lukhaimane: My staff complement is seventy-one.

Chairperson: Thank you very much. Alright, I think [that] takes care of the session that we have with you. Thank you very much. We wish you well back home. It was a fruitful engagement. Thanks.

Adv Lukhaimane: Thank you very much.

Chairperson: The team will walk you out.

Ms Maotwe: Unless she wants her water.

Adv Lukhaimane: Yes, I do need the water.

Chairperson: Unless you really want the process.

Mr Dyantyi: Here is the water.

Chairperson: Alright, so we come back in five minutes.

The Committee adjourned for a five minute break, to prepare for the next interview.

Chairperson: Good afternoon:

Ms Johannah Ledwaba: Morning.

Chairperson: Oh, it is still morning. Yes. Good morning, Ms Ledwaba. How are you doing this morning? Okay, alright. They will tell you how to operate the mic before you. Thank you very much. What is your current occupation?

Ms Ledwaba: Okay, before…

Chairperson: No, no, just the current occupation.

Ms Ledwaba: Yes, I just want to say something before we start. I am going to ask you to raise your voice and make sure that you are on the mic, because I use hearing aids, but now I do not have [them] because of some circumstances beyond my control.

Chairperson: Oh, is it? Okay, no, it is fine.

Ms Ledwaba: And, again, I am stuttering, so do not be shocked when we go along and then… yeah.

Chairperson: No, no, that is fine. How is it now? Can you hear me?

Ms Ledwaba: Yes.

Chairperson: Alright. What is your current occupation?

Ms Ledwaba: I am a magistrate.

Chairperson: You are a magistrate. Okay, no, thank you very much. What we will do, like we do with others – thank you very much for honouring our invitation – we will ask you briefly just for five minutes [to]indicate why you think you should be considered for nomination as a Public Protector. Your five minutes starts now.

Ms Ledwaba: Okay. I think I qualify based on my experience and my qualifications and also based on the fact that I am [a] fit and proper person, and I am… Okay, the position that I am holding now, I am a presiding officer. I uphold the law. I uphold the law. I am accountable. And I exercise my duties without fear, favour, and prejudice. And I uphold the Constitution and the law. And when I look at my profession, and I look at the profession of Public Protector, I do not see much difference; the only difference is that the Public Protector deals with the matters that are outside the court or beyond the reach of the court, because the Court deals with matters that are strictly the law and the legal arguments. And the Public Protector is mainly on the community and is there as the middle person, for the legislature, for the community and for the executive. While the court is mainly on the issues that are brought before them and where there are sanctions. And the Public Protector there is no sanction. So I think where I am, it will not be difficult for me to be in this Office of the Public Protector. It is the highest office, it is independent; where I am also, I am independent and I have that authority. And when I have that authority, even when you come to court you bow and you respect me, hence I have to respect myself and also have integrity and respect women’s rights, and respect every person who comes before court.

Chairperson: Is bowing a sign of respect?

Ms Ledwaba: Pardon?

Chairperson: Is bowing a sign of – taking a bow a sign of respect?

Ms Ledwaba: It is court decorum.

Chairperson: And you did not bow before me. Okay, that was in jest. Okay, thank you very much. You started as a cleaner and a tea lady in the early 90s.

Ms Ledwaba: Yes.

Chairperson: You worked yourself up to where you are now as a magistrate.

Ms Ledwaba: Yes.

Chairperson: It is impressive. I think we should note that. How did you achieve it?

Ms Ledwaba: Where I come from, I am coming from Soweto. I was not raised to the silver spoon. It was harsh conditions. And I wanted to be different. When people were going to dancing, being on the street, I decided to be a friend with the book. And in my bedroom, I used to put, by that time it was, Adv Moseneke and Adv Mujanku, and I was still in standard eight, I think. I said I want to be like them. And I aimed for it. And I wanted to set an example to my friends and to those who are coming after me, that it does not matter where you come from, you can still make it. And the reason why I have been in that place where I was a tea lady, I knew that it was not going to be my place, but I needed to start there, to feel it, to know what it is like. But my aim, I knew that it is just a passing through to my destiny, and I am never going to be in that; I am going to be a middle class or I am going to be someone, but not a clergy. Yes.

Chairperson: Do you confirm the disclosures you made in your questionnaire?

Ms Ledwaba: Yes, I did.

Chairperson: Is there anything else you want to disclose or add?

Ms Ledwaba: Nothing.

Chairperson: Thank you very much. You are now going to have an opportunity with the colleagues on my right. Each will have up to eight minutes with you. Is that correct?

Ms Ledwaba: Okay.

Chairperson: Thank you very much. Colleagues, let us then move in the same order. I will start with Hon Mina Lesoma. Thank you.

Ms Lesoma: No, thank you very much, Chair. Good morning, Adv Ledwaba. Thanks, Chair. You would have identified one of the key challenges that South Africa is confronted with: unemployment. What do you… I am speaking up. Thanks so much. I appreciate your kindness, Hon Member. What do you think are the key reasons for the structural unemployment that we have? May I repeat it, Chair because I was a little bit like…?

Ms Ledwaba: Yes, I am asking you to be on the mic, sorry.

The Chairperson. If you just come closer to the mic. She has some hearing problems because she forgets her hearing support.

Ms Lesoma: Plus five minutes on? Thank you very much, Chair. Good morning, Adv Ledwaba. Chair, you would understand, Ma’am, that South Africa has got a high rate or a challenge of unemployment. With your appreciation of the structural challenges that we have, what will be your advice as to how do we change the structural eco socio outlook of South Africa?

Ms Ledwaba: Okay. Unemployment is one of the socio-economic issues that we have in South Africa. As the Public Protector, like when I started my introduction I said the Public Protector is like a middle person. A Public Protector is there to give a voice to the voiceless. Not only for the legislature, the executive, and the judiciary, and the Chapter Nine Institutions and the organs of state, but for the public as well. So, the Public Protector also plays an inquisitorial role, meaning he is flexible. He can even go to the community and talk to the community. Like sometimes in Soweto, and where I come from, they have these things of Imbizo. She can use that platform and educate them and advise to be business people, to emancipate themselves, especially women, not to only rely on the government.

Ms Lesoma: No, thank you very much, Chair. Okay, thank you. Unfortunately, I have got limited time which is eight minutes. I am not pressing you to cut you off.

Ms Ledwaba: Okay.

Ms Lesoma: How would you position Public Protector South Africa to enhance oversight of the Legislature or legislative mandate and Parliament – how would you enhance oversight?

Ms Ledwaba: We have this thing called separation of powers or doctrine of separation of powers, where each and every… or let me call it the arms of government. The legislature has its own function, the judiciary has its own function, and the executive has its own function. So the Public Protector is there to oversee and to assist the legislature, so that when they do budget or maybe they discuss laws or whatever, at least they know where to go, what to debate because the Public Protector is assisting by giving them information, the reports that they will be getting. That it is an overseer, to check whether they do things right, it is called check[s] and balance. As long as she is cautious not to trench on the function of the other where she doesn't belong.

Ms Lesoma: Okay. No, thank you very much. Just a quick one, Chair. Having studied the Public Protector case law, what mechanisms or strategies you would employ if you get appointed to ensure that you speed up the turnaround without compromising the quality of the output or the findings of the Public Protector? Thank you.

Ms Ledwaba: Okay. With the eight minutes I have…

Ms Lesoma: No, no, we share.

Ms Ledwaba: I will be fast in a point form. I will start with to check that we do not do cases that are over two years – that is Section 6(9) of the Public Protector Act, – because if we have those cases you might find that we are not going to go anywhere with them because if we need the witnesses they might forget and some they might not be found and it can waste resources because it can end up wasting resources. Number two, I will make sure that in cases of Section 7(9) I make sure that when I do it, I do [a] provisional report first so that I can give it to whoever is affected and that person to know that there will be remedial action taken against him and then I am going to give him time to respond.

Ms Lesoma: Okay, thank you.

Ms Ledwaba: We call it the audi alteram partem rule.

Ms Lesoma: Okay, no, thank you very much. You will segment them; you will prioritise them. Having said that, what is your understanding of the role of the Public Protector in respect of requirements of the Executive Members Ethics Act?

Ms Ledwaba: Okay, Public Protector in the Executive [Ethics] Members Act; I think it is the only office where it can… English. It is the only office where it can conduct these ethics. Yoh, I know it.

Chairperson: No, it is fine. Take it easy. There is water before you. Just breathe in and breathe out. You will indicate if you [are] fine. Are you fine?

Ms Ledwaba: The Public Protector, whenever the executive member is not accounting… does not do the code of ethics properly, then he will then step in for him to be accountable, but he cannot make remedial action. But he can write a recommendation to the Parliament about that particular executive member because it is the function of the National Assembly – the Speaker – who has to conduct that code of ethics if it was peached (sic). It is not the function of the Public Protector. She will be trenching. Hence the Public Protector she needs to know her mandate, even when she is doing the overseeing she needs to be wise enough to know her mandate so that she cannot make other people angry, due to her action, because even herself it will be there – it will be a misconduct on her part. And the Ethics Code is together with the Public Protector’s Act – they usually go together.

Ms Lesoma: Thank you very much, Chair and advocate.

Chairperson: Okay, no, thank you very much.

Ms Lesoma: I think you will be fair to other Members because she did indicate her limitations. Thank you.

Chairperson: Yes. No, she did. That is the reason why I gave just one and a half minutes extra. Thank you very much. Alright, we now move to Adv Breytenbach.

Adv Breytenbach: Thank you, Hon Chair. Good morning, Madam.

Ms Ledwaba: Morning.

Adv Breytenbach: Can you hear me?

Ms Ledwaba: Yes.

Adv Breytenbach: You say in your questionnaire, amongst challenges, ‘I identified key challenges being that of socio-economic issues, inflation rates, fuel levy, repo rate, the price tag of food is high, and the value added tax regardless of class, infrastructure, service delivery.’ And then you suggest that the Public Protector needs to deal with these issues. Could you explain what you meant by that, please?

Ms Ledwaba: Oh, okay. That one I was just giving an example about… Okay, I gave scenarios in my questionnaire, if you can see?

Adv Breytenbach nodded her head in the affirmative.

Ms Ledwaba: Those case scenarios they are coming from that because I did not want to… It was a lot. So what I meant is that Section 182(4), it allows for the Public Protector to be accessible to the community. And where I come from, I spoke about I put myself in Soweto. I know that people are not keen to know about the interest rates. They are not keen to know about what is happening around them. And it hurts me because they run to do picketing and looting and blame the government and yet they have TV; instead of watching the Governor talking about interest rates, they watch UZalo, that has gang related, and they do not learn anything. So the Public Protector will be there. We must be there to educate them so that they must not be like this, they must be objective and be an asset in this country: take part. Democracy is for everyone.

Adv Breytenbach: Thank you. Thank you.

Ms Ledwaba: Leaders fought for us. Even us we must continue with that legacy.

Adv Breytenbach: Thank you very much. And then, in your view, to what extent is an administrative decision susceptible to review under the South African constitutional order?

Ms Ledwaba: What?

Adv Breytenbach: To what extent is an administrative decision susceptible to review in the South African constitutional order?

Ms Ledwaba: Okay. Any decision is subject to review when a person was biased – if it is the right English. When the person… By the time he uses discretion, it was not him, it was somebody else’s discretion. It is supposed to be him using the discretion, not somebody else. And when it prejudices the other party, and when the procedure was not followed properly, when it was supposed to be followed. And it is prejudice [when] procedure was not followed. Biasness [he] did not exercise discretion, somebody else exercised [it] on his behalf. Was taking favours. I think it would fall under biasness.

Adv Breytenbach: Thank you. And then finally. Do I have time, Chair?

Ms Maotwe: He does not know.

Chairperson: Yes, continue.

Adv Breytenbach: Thank you. What do you understand under the principle of legality?

Ms Ledwaba: Oh, I remember my lecture with that one. It is nullum crimen sine lege.

Adv Breytenbach: What does that mean?

Ms Ledwaba: It means where there is no law, you cannot punish.

Adv Breytenbach: Thank you. Thank you, Mr Chair.

Chairperson: Thank you very much.

Ms Ledwaba: I wanted to take it further, but it is fine.

Chairperson: No, no, she is fine. She is done. We are now going to move to Hon Maotwe – she is just directly opposite you.

Ms Maotwe: Thank you, Chair. Good morning, advocate.

Ms Ledwaba: Morning.

Ms Maotwe: Are you well?

Ms Ledwaba: Yes, I am well.

Ms Maotwe: I see that you are currently writing a book on gender[-based] violence?

Ms Ledwaba: Yes.

Ms Maotwe: What is the name of the book?

Ms Ledwaba: ‘Joy comes in the morning’.

Ms Maotwe: And you have been writing it for how long?

Ms Ledwaba: I finished writing it, and I have paid. They gave it to me and it was having mistakes. And I was not happy about it. And then I returned it because they wanted to launch it. I could not launch a book with grammatical errors. When I gave them this project, I thought they are better than me because they are the company. But it came, they cut my face like this, instead of my full face. Yes.

Ms Maotwe: I see. Talking about grammatical errors. The questionnaire that was sent to you, did you personally complete it?

Ms Ledwaba: Yes, I will tell you… Okay, I was going to tell you after because I did not want to corrupt your mind, all of you. I was coming from church: I cannot forget. Not coming from church, it started when I was watching TV. And I think it is Mr Xaba who was questioned by the media, by CN TV. And then said the people that we scored they use questionnaire[s] and the CV – we scored them according to what we have. And I was surprised: questionnaire, what questionnaire? I did not get a questionaire. Oh, maybe that it is why I got two. But, eish, they did not tell me about questionnaire. Then it happened that I go to church, after two days of Mr Xaba’s announcement on that. It was at five o'clock because prayer starts at six. Then I received a call that ‘Ms Ledwaba, we have been looking for you. I tried to send something. Did you receive [the] questionnaire?’ I said ‘What questionnaire?’, ‘The questionnaire that we sent to people. It is needed today.’ And I said ‘Bhuti (brother), I am in church. And now it is five o’clock, you need [the] questionnaire and it is load shedding. My place, when I left, a transformer died somewhere, it was dark. Randburg, there is load shedding, I am in church. Do you expect me to give you whatever you want me to give you now? How?’ ‘I am going to send it by email.’ ‘Do you have my email?’ ‘No.’ ‘Okay, do you want my email?’ ‘Yes.’ ‘Okay, I will give you my email but I will not give you the questionnaire now. I am in church.’ Then he gave me the questionnaire. He sent me the questionnaire and then I did not sit well in church. Then I took my bag and I went to my sister’s house and she said she does not have a laptop. Then I ran around looking for someone who can assist me. Then I decided to go to Randburg: the lights are still dark. Then I told her that ‘I will give you on Friday.’ Then Friday… Thursday, I was on leave, I do not have a laptop with me. I used the internet one. They were about to close. I did everything in a hurry.

Ms Maotwe: Yes.

Ms Ledwaba: And then I sent to PostNet immediately.

Ms Maotwe: I see. So, Mr Xaba you saw him on TV?

Ms Ledwaba: Yes.

Ms Maotwe: Does he look like anyone of us here, in this room?

Ms Ledwaba: Yes.

Ms Maotwe: Okay, that is fine. Let us continue. Maybe it explains why there are so many grammatical errors on your questionnaire.

Ms Ledwaba: Yes.

Ms Maotwe: In your questionnaire you mention that – Chair can I be protected? – craft [a] strategic plan for your office that aims to foster relationship[s] with stakeholders. And then you go and list the stakeholders. And then you say ‘Including Chapter Nine Institutions’.

Ms Ledwaba: Yes, I made a mistake.

Ms Maotwe: And then you say an example of a Chapter Nine [Institution] is Home Affairs. How is Home Affairs a Chapter Nine Institution?

Ms Ledwaba: Yes, I made a mistake. It is not. Home Affairs is an organ state: it is a government. It is not a Chapter Nine.

Ms Maotwe: But here on your questionnaire you say…

Ms Ledwaba: You know what, I wrote quickly and I sent because they said it is needed. I was supposed to… I am the one who is supposed to blame all of you here because you did give me – like others – in time so that I can pay attention.

Ms Maotwe: Okay.

Ms Ledwaba: So I made grammatical error but I pay attention to details.

Ms Maotwe: And wrong examples as well.

Ms Ledwaba: Pardon?

Ms Maotwe: And wrong examples. Because here you are very clear that example – it is on page four – ‘Department of Home Affairs’.

Ms Ledwaba: Yes, that one is the wrong example. I wanted to say another thing. And later when I opened, after four to five days, I realised and said ‘Okay, it is done, it is done.’

Ms Maotwe: Alright, let us carry on. My time was taken by the explanation about Mr Xaba.

Ms Ledwaba: Okay.

Ms Maotwe: Over the past three years, have you written a judgment by yourself? And how long did it take for you to write down a judgment?

Ms Ledwaba: I write judgment[s] every day.

Ms Maotwe: Yes.

Ms Ledwaba: We have this thing of case flow management. We are not supposed to have a judgment for three months. I do not know if there are those who have it after three months, but we are strictly monitored. We have a good manager, who is strictly monitoring us. And we have got this thing called the MC15. And we have got a way of tracking our judgments. So whenever I have a case, let us say it is civil, I will have my own turnaround time that, okay, it will be trial. Then when they postpone for argument, I do not have a problem – it is their baby. But when me I postpone for judgment, I make sure that I give it maybe two weeks. You know why? Because I do not want to forget it. It is still fresh. But if I prolong [it], I am going to forget it. So that is why for me, weekend… You know when you are a magistrate, you do not only work Monday to Friday; you are there for the public; you gave yourself. So you can even go to work if you do not have a laptop and do the judgment. And when you give them a day that this time is the judgment and they do not come, at least yours is ready. Yes.

Ms Maotwe: Would you support the call for the banning of alcohol advertisements, including the legislation itself?

Ms Ledwaba: Oh, that one, Ma’am. I do not want to be political, but I am going to answer you like I am a revolutionist. Where I stay at Rant-En-Dal – it is a suburb – when I go there or when I go to Midrand or anywhere, do I see alcohol? No. I see the adverts that will uplift you; you will see the advert of a business, the advert of Ms South Africa. But when you go to Soweto, the first thing when you enter, what do you see? An alcohol [advertisement]. As if we are the alcoholic people. What do you… I mean, what are we bringing? What nation are we bringing? You know, it is painful because every Friday I cannot even take something and say I want to go to my mom's place and finish my book. 1, 2, 3, it is bomb blast next door – ziya duma (it is going down or there is a party). So this is the culture we are creating because you are telling these children it is good to drink. When they watch TV [there is] alcohol, alcohol, alcohol everywhere. ‘Savannah makes your dry’. What is it that you are going… I mean, they are not learning anything. We are creating problems to ourselves. They start with alcohol and they graduate to something bigger, like drugs to make them – you understand? And the alcohol is a problem even in the family. Yes. I do not want to go further.

Chairperson: I have given you an injury time. Hon Inkosi Buthelezi?

Inkosi Buthelezi: Thank you very much, Hon Chair. And I bow before the magistrate. I am just having three questions, only three, and they are very short. How do you deal with stress or pressure – rather put it like how do you deal with pressure at work?

Ms Ledwaba: Okay, as you have seen maybe somewhere in my CV, if it is there, I am a Christian. Whenever I have a problem, personally, that is eating me, killing me, I pray and I will talk to God. And when I say ‘Amen’, I am okay. If you have stress, it is because…

Inkosi Buthelezi: No, I have got you. You have answered me.

Ms Ledwaba: Okay.

Inkosi Buthelezi: Yes.

Ms Ledwaba: Alright.

Inkosi Buthelezi: So you just pray and when you say ‘Amen’, it is over?

Ms Ledwaba: Yes.

Inkosi Buthelezi: Do you sometimes consider professional help?

Ms Ledwaba: Even professional help you can, if you can see that you are not coping. It is not wrong to do that because you are helping yourself and others around you.

Inkosi Buthelezi: Okay, thank you. My second question, how do you deal with your weaknesses at work?

Ms Ledwaba: Okay. Weakness… Sometimes a weakness can be your strong point.

Inkosi Buthelezi: Yes, I know. Yes.

Ms Ledwaba: And sometimes it can expose you if it is…

Inkosi Buthelezi: Yes, how do you deal with it? You are aware that you are weak on this [so] how do you handle that?

Ms Ledwaba: I do not hide it because if I do I am not going to get help.

Inkosi Buthelezi: Okay.

Ms Ledwaba: I will talk about it. Then I will get help and improve. You might find that maybe someone has a weakness like that but he had a way to deal with it.

Inkosi Buthelezi: Okay, that is fine.

Ms Ledwaba: Yes.

Inkosi Buthelezi: My last question, are you a social activist?

Ms Ledwaba: Yes.

Inkosi Buthelezi: Okay.

Ms Ledwaba: Social activist the way I understand maybe is not the way you understand.

Inkosi Buthelezi: Yes, that way.

Ms Ledwaba: Me, the way I understand.

Inkosi Buthelezi: I think it is the way we both understand it. Are you a social activist?

Ms Ledwaba: Yes.

Inkosi Buthelezi: Okay.

Ms Ledwaba: Because why I am saying I am a social activist, in my spare time, I like to educate. Like, we have this thing now that is coming a challenge in our country: gender-based violence. It is the issue close to my heart. And when there are men's conferences, I go there and I talk about it because men the way they were taught, it was like they were not taught to respect a woman. And they need to be taught how to handle us.

Inkosi Buthelezi: Okay. No, that is fine. Thanks.

Ms Ledwaba: Yes.

Inkosi Buthelezi: I am okay, Chair. Thank you.

Chairperson: Hon Wessels?

Mr Wessels: That is a strange order. Thank you, Chairperson. Good – are we in the morning or afternoon? No. Good morning.

Chairperson: I will come back, sure. Yes, you may continue. They were just correcting me that I have jumped Hon Horn. But go ahead.

Mr Wessels: Thank you. Just a quick question with regards to remedial action. As you know, the Public Protector makes an order for remedial action in a report. But there is a challenge where organs of state do not implement the remedial action. How will you deal with that if you are the Public Protector?

Ms Ledwaba: Okay, that question, I think I will have lots of precedent for it. When I am talking about precedent, I am talking about the remedial actions that were taken by the other Public Protectors. Like, for an example, the remedial action… Okay, let me talk about case[s] so that I can get the answers than to be broad. In the case of Nkandla case, Chief Justice Mogoeng said that remedial action is unfettered and situational and is binding and is reviewable and can be set aside. And it is reviewable and set aside when the Public Protector did not do the remedial action that is within his mandate – he stepped out of the bound. Like, for an example, the case of [the] President 2020 – I think it is 2020 – and the EFF and the Madam Speaker – yeah, there are various cases, I will just touch. There was a remedial action that the Parliament must amend Section 224. That one if they refuse to implement, then I have to know that I have stepped out of the boundaries because it is not within my mandate to amend the Constitution or piece of legislation or whatever. My mandate is specifically stated in Section 182 and even in the legislative of Public Protector Act. And there was another remedial action that said, I think it was for the Code of Ethics, that the executive member to be held accountable. And the Speaker stepped in and said ‘That is not within your powers. It is not your function. It is the function of the National Assembly.’ But the remedial action of Nkandla was… The Commission of Inquiry to be conducted, and Chief Mogoeng said that one is the one that has to be binding because it is within. And he also spoke… There was a remedial action about discretionary [power]. Then Chief [Justice] Mogoeng said the discretionary one it is not part of the separation of powers, that she can handle in the remedial action. But, no one must force the President. It is within his discretion; hence it says discretionary powers. It is his discretion. And there is no case law that says the President must be forced. So those kind of remedial action[s] you cannot implement something that is not in good faith. You cannot implement something that is unlawful. You cannot implement that is out of the powers of the Public Protector: you would be assisting the wrong things in the Public Protector.

Mr Wessels: Thank you very much. Thank you, Chair.

Chairperson: I am sorry, I got absorbed in the engagement that I lost track. Let me re-trace my steps. I then go back to Hon Tlhape. Thank you very much. And then Hon Horn afterwards.

Ms Tlhape: Thank you, Chair. I think you are rattled because you were seen on TV by the candidate. Good morning, Ms Ledwaba: your worship. You are currently a magistrate for about five years?

Ms Ledwaba: Yes, permanent.

Ms Tlhape: And it is my belief that in the judiciary, you are also placed in a position that allows you to resolve dispute[s] – various disputes, criminal acts. Why would you want to leave your current position?

Ms Ledwaba: Oh, okay. I am passionate to dispense justice. The judiciary, it's not like the Public Protector. The judiciary is… I am a magistrate in court. I handle disputes, but I cannot take it as far as that outside. Like, let me tell you an example. Let us say I deal with a case of eviction, and I can see that these people are in a mess. But I, the magistrate, I am there to listen to both parties, to the evidence that is before me and I make decisions and I end there, because I do not have to be in favour. I am confined to the law, not to the public, like their life or whatever. I am there; from there I take my gown, go to my chamber, and that is it. And when you come to me, you come with a security or with a police officer. I want to be a voice of the voiceless, but where I am, I cannot. It is a sanction where I am. Where I am I put a person to jail, but what makes this person to be in jail: the socio-political issues. I cannot deal with it [because] I will be stepping out of my boundary. I will be disciplined.

Ms Tlhape: Alright, thank you. Now, on page eight of your questionnaire, on the motivation why you are a suitable candidate. You are alleging that the Office of the Public Protector has largely been focusing on high-profile cases. I want to know from you, because these high-profile cases also come from complainants. If you are appointed, how are you going to handle high-profile cases?

Ms Ledwaba: You are handling them. It does not mean that you do not. You know, me when I watch TV, to be honest, you know they say a Public Protector is accessible to a community but I have never seen something moving that was done by the Public Protector to the community. Let me tell you why. Last when I was nominated, that period, I went to so many young people and I asked them ‘Do you know what is Public Protector?’ ‘No’. ‘Do you know what is Legal Aid?’ ‘Yes, it is in Maponya.’ They know Legal Aid, they know everything, but Public Protector no one knows – believe me. Few people know the Public Protector.

Ms Tlhape: Okay. My last question, advocate. What is your understanding of independence within the context of Public Protector? And how will you make sure that you are independent in your duties if you are appointed?

Ms Ledwaba: Okay. To that one I am going to explain it in two scenarios or whatever. We have financial independence and we have independent in Section 181 of the Constitution. Let me start with this one of 181. [Section] 181 says that the Public Protector is independent and is strengthening constitutional democracy. And all the organs of State should support the Public Protector, so that the Public Protector can do her mandate without fear, favour and prejudice; and investigate into maladministration, improper conduct, impropriety and…

Ms Tlhape: How will you achieve being independent if you get appointed?

Ms Ledwaba: Yes, I am coming to that one also – remember I said two? Now there is this thing called financial independence. For the Public Protector to achieve that must… you know, when you are a child at home, you cannot achieve anything if you are not independent; you need to be independent, step from the parents and start doing things.

Chairperson: At what age?

Ms Ledwaba: So even the Public Protector must have that independency that ‘I am now independent, I can do it. I can open and office. I can start this.’ But that independency, he must have a budget and he must be allowed to defend that budget in the Parliament, because she cannot always run to the mother when she wants to do something in the Office; when he wants to do a project. He must be independent.

Ms Tlhape: Thank you, Your Worship.

Ms Ledwaba: He must be able to do all those projects.

Ms Tlhape: Thank you, Your Worship.

Ms Ledwaba: Yes.

Ms Tlhape: Thanks, Chair.

Chairperson: Thank you very much. Hon Horn, you have [a] full eight minutes.

Mr Horn: Yes, thank you, Chair. Good afternoon, Ma’am. I want to go back to your answer about how you will manage caseload. And you indicated that you will use the provisions of the Public Protector act dealing with cases older than two years. You remember that you answered about that: you spoke about that?

Ms Ledwaba: Yes.

Mr Horn: Does the law totally prohibit the Public Protector from dealing with cases older than two years.

Ms Ledwaba: No, it is the discretion of the Public Protector, but [he or she] must use this discretion wisely. When there is a case of over two years, [he or she] must analyse it, look at it, and see if it is wanting; if he can proceed with it; if he can have a good remedial action or a good report. You know what? The Public Protector must also protect her integrity. She must not [just] take anything because it will cripple her. She must be on a facts-finding mission: is it worthy to do this? Because it will also cripple the resources of the Public Protector and the funds if she is not wise. So she needs to be wise.

Mr Horn: Okay.

Ms Ledwaba: So it is her discretion.

Mr Horn: Okay, so in your initial responses on that issue, you talked about witnesses that become unavailable or maybe difficult to get a hold of them.

Ms Ledwaba: Yes.

Mr Horn: So, I want to ask you irrespective now of whether the matter is older than two years or not – any matter – when is it acceptable for the Public Protector not to ensure that material witnesses are interviewed as part of an investigation?

Ms Ledwaba: Can you repeat that so that I can get it?

Mr Horn: Okay. So in any matter, whether it is now two years older or whether it happened six months ago or three months ago, when is it acceptable for a Public Protector to close an investigation without listening to a material witness?

Adv Ledwaba: Okay. There are things that a Public Protector cannot do. Like, when a person is in the public service or is under the Public Service Act, and that person did not exhaust [the] remedies available to her and she runs to the Public Protector. So when the Public Protector receives that on the first initial phase receiving that complaint, going through it and realise that ‘Ah, ah, this person.’ I mean, he is a person from the NPA (National Prosecuting Authority) for an example, or from the DTI (Department of Trade and Industry) and did not exhaust and is a public servant, then he can give advice not close just like that. He [must] give advice and give the reason why he is closing, that you did not exhaust remedies. And, again…

Mr Horn: Okay, can I rephrase my question?

Ms Ledwaba: Okay, maybe. Yes.

Mr Horn: If you are acting as a magistrate and the NPA fails to call a witness, it is on their head. You find on the basis of the evidence put in front of you as a magistrate. How will it be different if you are the Public Protector you are dealing with an investigation?

Ms Ledwaba: Yes, it will be different.

Mr Horn: Explain to me how.

Adv Ledwaba: Yes, because [the] Public Protector if he sees that the witness that is crucial is not there, then she has to subpoena that witness to come. And then when that witness come[s], then there will be an oath, then he will… then that witness will then say whatever that he is saying, and then cross-examine. And if he wants a legal representative, and then he will get a chance for legal representative. If he wants copies of the documents, they will make it available to him.

Mr Horn: Okay.

Ms Ledwaba: He cannot just close it without giving the other party a chance because maybe he did not know that he is supposed to be there, if he is a witness. Unlike for [a] magistrate, it is an adversarial position. I deal with what is in front of me, and if the plaintiff or the applicant did not bring – I am talking about civil [matters] now – his witness, I am not going to tell him to bring his witness. It is his own failure. I am not there to assist the attorney or the other party. I am there to adjudicate on the case – what is before me – and then I make a decision. But the Public Protector has got a proactive role. He is not concentrating on what he has. Okay, let me say it quickly, taking you back to the time when the Public Protector was established. It was in the form of an ombudsman. Other countries, like Botswana and other countries, had ombudsmen. So South Africa liked it and they started to copy from there and they had [an] ombudsman. And when I read, it was like Public Protector Mu… something like that, (Adv Mushwana) was the first Public Protector. And it was the Interim Constitution [that] made [the] ombudsman. But before that, there was legal scholars who came together and said ‘We need this ombudsman thing’, so that it can take a proactive role, investigate the maladministration. Then it became… In the interim, it became a Public Protector. And then even in the Constitution of 1996, it was the Public Protector. It is where you will find the powers conferred to the Public Protector in Section 181 and 182, that shows that he is taking an active role, not like a magistrate.

Mr Horn: Okay, thank you. Thank you, Chair.

Chairperson: Thank you very much, Hon Horn. Okay, we will now take Hon Mananiso. Over to you.

Ms Mananiso: Thank you, Chairperson. Hello, Adv Ledwaba. How are you? Can you hear me?

Ms Ledwaba: Yes.

Ms Mananiso: Alright. Thank you. My first question is relating to issues of Chapter Nine Institutions. Can you hear me now?

Ms Ledwaba: Yes.

Ms Mananiso: Alright. I am saying my first question is in relation to Chapter Nine Institutions, as you know their role. I want you to indicate to me to say what are the gaps between the Chapter Nine Institutions and key departments that actually works on issues of civil rights that you as a magistrate could have identified as you are working with other stakeholders?

Ms Ledwaba: Your question is broad. I do not get it thoroughly. Start it again, I am sorry.

Ms Mananiso: Okay, my question is you understand the role of Chapter Nine Institutions, right?

Ms Ledwaba: Nodded her head in the affirmative.

Ms Mananiso: And what is the gap that in your workspace, as a person who has been working with different stakeholders, you can say this is what you have identified as a gap between your Chapter Nine Institutions and [the] key department that deals with civil rights organisations?

Ms Ledwaba: Okay. Let me give an example about human rights. [The] Human Rights Commission is a Chapter Nine Institution. And it is court, right. And it is the person who comes in my court. I will give an example about eviction – let me give you eviction. They come and say… Okay, the applicant is applying to evict the defendant, right. And then as a magistrate I have … I am going to adjourn and I am going to go to my chamber and look at [if] it is an eviction [or] human rights issue. And if it is a human rights issue, what is it that is being violated. Okay? I am going to be on a facts-finding mission now. Here is the case. I took notes. Okay? Are their children here: are there minor children in the house? That is the first question that I have to ask myself. A woman, is she employed? How many of them [are there]? What is happening? Then if they are just evicting women with children, I am going to back and say ‘Did you look at…’ because now the human rights will guide me ‘the alternative accommodation for them before you evict them?’ Because otherwise, it is going to be a socio-economic issue again, because they are going to be homeless and they are going to be a problem on the street. Whose problem? Us: all of us. Then human rights will say ‘But children cannot be on the street like this.’ You understand? It becomes now two organs of state… No, it becomes a Chapter Nine [Institution] and the courts now have to work together to make sure that there is justice for both parties.

Ms Mananiso: Okay. So, my question was with regards to the gaps?

Ms Ledwaba: Gap[s]?

Ms Mananiso: So we still have a gap is in terms of silo working relations of Chapter Nine Institutions and the department.

Ms Ledwaba: Yes.

Ms Mananiso: So, if you were to be appointed the PP, what is it that you can bring to the table as one of the mitigation remedial actions to deal with that?

Ms Ledwaba: You want the remedial action?

Ms Mananiso: Yes, to deal with the gap that in what I was asking you [which] was with regards to the challenges that you have.

Ms Ledwaba: Okay, now I understand. Remember, I told you about every Chapter Nine or whatever, they have their own functions. So I will make the recommendation with what is within my mandate, if it is there. But if not, I will then write a recommendation just to advise that I see a problem here and I think [the] Human Rights Commission will be able to deal with this issue in this particular manner. But I will not encroach on their function.

Ms Mananiso: Alright.

Ms Ledwaba: Yes.

Ms Mananiso: Ms Ledwaba, if you were to be appointed today to say tomorrow, you are the PP, what are your special projects that you would say this is what I am bringing to South Africans?

Ms Ledwaba: Okay, my special project will be – do not laugh at me with something I am going to say. I am going to create something called [the] quality assurance unit or review quality assurance unit. When the case – a complaint – comes in the early inception… No, let us not start there because I am starting wrong. [The] quality assurance unit it will be there to assess if there is compliance, number one. I will make sure that I create a person who will be an assessor or a quality assessor to check the files of the investigating officers, whether they complied before they go to whoever who will be dealing with them. In that, let us say I will tell him to create a checklist. In that checklist to tick the things that are there and to tick the things that need attention and to see if ever everything is being complied with, in terms of the investigation guidelines. I will create that guideline. You know why I am saying this is because when I read the structure I realised that the Office has people from… has the investigators from [the] SIU (Special Investigating Unit), from the NPA, lawyers, advocates… yes. They do not have forensic investigators; they do not have financial investigators. So I will make a diverse team to have those who are very skillful and they will deal with that guideline, how to come up with a structure of guiding when the complaint comes from the first inception until the final product. And another thing, because you are saying what is it that I will do. This thing of Section 194, it became a scary thing to most of the people of the removal, because it is not something that we expected in a highest office like the Public Protector. So what I will do is to find where did we go wrong, and how to learn and to rectify, so that the Office… so that I bring back the integrity of the Office. And…

Ms Mananiso: Okay. Alright.

Ms Ledwaba: I am not done.

Ms Mananiso: I think you have answered me.

Ms Ledwaba: Oh.

Ms Mananiso: Yes, then my question to you is what is…

Chairperson: Do you still want to pursue it? I allowed the injury time mainly to support her to finish her input, not for more questions. I know your time got time taken up because of the lengthy responses.

Ms Mananiso: Yes, Chair. Can I just ask her my last question?

Chairperson: Yes, you can do it; just do it quickly.

Ms Mananiso: Alright, my question to you is what [is] your understanding in terms of fit for purpose? Then I will be done.

Ms Ledwaba: In terms of?

Ms Mananiso: Fit for purpose.

Ms Ledwaba: Fit for purpose?

Ms Mananiso: Yes.

Ms Ledwaba: Fit for purpose?

Chairperson: Yes, fit for purpose.

Ms Ledwaba: Fit for the purpose. Okay, you have to be fit and proper. You have to be fit and proper. And you must not be in shady dealings. And you must be a person who acts in good faith all the time and who uphold[s] the law, and who is honest in all your dealings – who is clean.

Chairperson: I think you have answered the question very well. Now, I was saying you have answered the question. We now move to the next question. It is the last questioner (sic). Hon Dyantyi?

Mr Dyantyi: Thank you, Chair. Ms Ledwaba, can you hear me?

Ms Ledwaba: Yes.

Mr Dyantyi: You are a magistrate currently. Is it an acting magistrate or permanent?

Ms Ledwaba: Permanent.

Mr Dyantyi: Where?

Ms Ledwaba: Randburg.

Mr Dyantyi: In Randburg. Can you just tell me this about that office you are in: do you have any part head matters?

Ms Ledwaba: Yoh.

Mr Dyantyi: Yes or no?

Ms Ledwaba: I have two.

Mr Dyantyi: You have two?

Ms Ledwaba: Yes.

Mr Dyantyi: Why?

Ms Ledwaba: Because we are rotating. Let us start there. This year I only accumulated two because I just started in civil now. Where I was, I was at debt review; we are rotating. When you are in debt review, debt review does not accumulate part heads.

Mr Dyantyi: That is fine. So when are you concluding those part head matters – two of them?

Ms Ledwaba: Two of them?

Mr Dyantyi: That you said you have two.

Ms Ledwaba: Okay, the other one is for judgment, is coming on the 31st of this month. And the other one is coming on the 12th – something like that. Yes.

Mr Dyantyi: Okay, you have no date for it?

Ms Ledwaba: I think it is 12th or 13; I am not sure about the date. I do not have a diary but I think… Because we have changed that date, let me tell you why. I took a leave, right?

Mr Dyantyi: Yes.

Ms Ledwaba: And then when they called me to tell me that you did not come, it is because I was robbed: six men came in the house with a gun.

Mr Dyantyi: Okay.

Ms Ledwaba: And I did not go to work. My boss came and he said he will postpone.

Mr Dyantyi: Okay, let us pause there. Let us pause there.

Ms Ledwaba: Yes.

Mr Dyantyi: Why were you transferred from Klerksdorp to Randburg?

Ms Ledwaba: Krugersdorp.

Mr Dyantyi: Krugersdorp to Randburg.

Ms Ledwaba: Yes, thank you so much.

Mr Dyantyi: Why were you transferred?

Ms Ledwaba: I have issues about my disability. I was not accommodated and I fought; I really fought hard. And then I wrote to the Commission. I told them that I am not happy. And I am not… Where I was, I can say diversity was a problem.

Mr Dyantyi: Okay, I get you. You were not accommodated. My next question: during your time, whether it was in Klerksdorp or where you are now, is there any judgment of yours that was taken on review.

Ms Ledwaba: It is judgments that were taken on appeal, not review – appeal. And my judgments were upheld.

Mr Dyantyi: Okay, thank you.

Ms Ledwaba: Yes.

Mr Dyantyi: You have answered me there. In your court do you have any backlogs?

Ms Ledwaba: No. Maybe it will start now because I just started in civil last month.

Mr Dyantyi: Okay, thank you. So just in average, even though cases are different…

Ms Ledwaba: Hmm? You were coming okay, now your voice is gone.

Mr Dyantyi: Because you are also lowering your voice.

Ms Ledwaba: Okay.

Mr Dyantyi: Just in average, in terms of, I know cases are different, what would have been your longest case that you would have handled as a magistrate?

Ms Ledwaba: Yes, I had the longest case in maintenance?

Mr Dyantyi: Why?

Ms Ledwaba: The respondent was somewhere in London, I forgot where. He was giving us problems to come; he was a director at Dubai, it is not London. He was a director at this big bank in Dubai. And it was like maybe he was undermining the court because he was extremely rich. But he was keeping… he kept on giving us the dates, that he is not available, he will be available on this day.

Mr Dyantyi: Okay.

Ms Ledwaba: Yes. And finally he came.

Mr Dyantyi: So how long did that take, without us going into the details of it? How long did that take? You cannot remember?

Ms Ledwaba: Not judgment? Just for the two of them? It took, I think… because you know what, the postponement…

Mr Dyantyi: No, no. How long did it take? How long did it take? Do not go there.

Ms Ledwaba: I can say the average it can be three months.

Mr Dyantyi: No, you cannot say average. You know this case. This is a particular case, [it] is maintenance.

Ms Ledwaba: Three months.

Mr Dyantyi: Are you sure?

Ms Ledwaba: Yes.

Mr Dyantyi: And your quickest case, how long did it take?

Ms Ledwaba: My quickest case?

Mr Dyantyi: Yes, one case that you did in record time?

Ms Ledwaba: In record time?

Mr Dyantyi: You [have] never had that?

Ms Ledwaba: Yes, I did, it is domestic; domestic, I do it in record time because those people they are in distress.

Mr Dyantyi: Which is what? Is it one day?

Ms Ledwaba: Look here, if ever a person…

Mr Dyantyi: No, no.

Ms Ledwaba: It is one day.

Mr Dyantyi: Thank you, I got you.

Ms Ledwaba: Yes, domestic is one day.

Mr Dyantyi: No, thank you. Now, my next point – before I go to my next point, starting with the part head and others, do you know that what you are applying for, we have thousands of complaints and backlogs? So if you are not able to complete two part heads, how do you wish that you would be able to handle this job?

Ms Ledwaba: No, maybe you do not understand our role. Let me explain.

Mr Dyantyi: No, no, I understand your role because there is a norms and standards that controls your role.

Ms Ledwaba: No, the part heads are not from the magistrate: no. My thing that I deal with, mina, is judgment. I am in control of the judgment. Part head is them, the defendant and the applicant.

Mr Dyantyi: But it is your case?

Ms Ledwaba: Just like when you are a prosecutor, there you are dominus litus, you can control, but I am a magistrate.

Mr Dyantyi: Alright.

Ms Ledwaba: These people they will tell you ‘Your Worship, we are not available on this day. I am in Lusikisiki. I am going to have a matter there.’ Should I force them to come to court? I cannot.

Mr Dyantyi: Okay, thank you. No, let us pause there, so we do not go to Lusikisiki.

Ms Ledwaba: Yes.

Mr Dyantyi: Now, you were scary before… you were scared about some removal. Do you know that magistrates are removed by this National Assembly from office? Have you ever heard of a magistrate being removed?

Ms Ledwaba: Oh.

Mr Dyantyi: You did?

Ms Ledwaba: Okay, can I say something about that? And I apologise if I hurt your feelings about removal.

Mr Dyantyi: No, no, we are talking about magistrates. We are talking about magistrates.

Ms Ledwaba: Okay. Alright.

Mr Dyantyi: Yes.

Ms Ledwaba: Magistrates are removed.

Mr Dyantyi: Okay, does that scare you?

Ms Ledwaba: Even judges are removed.

Mr Dyantyi: Does that scare you? It does not?

Ms Ledwaba: No, it does not scare me, but it troubles us because it is one of our members is being removed. And you will want to know more about it – you understand – so that you may not fall into the same trap.

Mr Dyantyi: Some magistrates have been removed because they are involved in bribery and other things. Would it be wrong to remove them?

Ms Ledwaba: No.

Mr Dyantyi: Okay.

Ms Ledwaba: At least they will show us that when you go that is what will happen.

Mr Dyantyi: Okay.

Ms Ledwaba: Yes.

Mr Dyantyi: Thank you. Thank you, magistrate Ledwaba. I yield back, Chair.

Chairperson: Magwanishe, you want to do one or two questions?

Mr G Magwanishe (ANC): Yes.

Chairperson: Alright.

Mr Magwanishe: Good afternoon, magistrate Ledwaba.

Ms Ledwaba: Yoh.

Mr Magwanishe: Can you hear me now?

Ms Ledwaba: Do not worry, I am going to have hearing aids soon. Yes, I can hear you now.

Mr Magwanishe: Okay. Good afternoon.

Ms Ledwaba: Okay. Yes.

Mr Magwanishe: People who criticise you, what do they criticise you about?

Ms Ledwaba: If you want to criticise me?

Mr Magwanishe: Yes, generally most people who criticise you, what do they focus on?

Ms Ledwaba: Okay, when I was at the university – I will start from there – they used to call me ‘fast move’. And I did not like it because I walk fast and I do things fast, but I pay attention to detail. And sometimes my lecturer will check me thoroughly because he would not understand why I finish early in the exam. So in my line of profession now, they give us default judgments every week. Every Monday we get thirty-two, sometimes we get twelve, sometimes we get eighteen. I am not back-chatting any one, but most they pile them – I am not that kind. When I get [a] default judgment, I hate procrastinating. When I get [a] default judgment and I know that I can work while eating, there is no stress, I do my default during lunchtime and I will do my default even after work and I will tell myself that I will leave at five instead of four, and I push. Come Thursday, I am done. And Friday I return them. And they criticise me about that. Okay, before my boss used to double check and double check and double check thinking he will find something and one day he found something and I said ‘Okay, I am sorry.’ And then I will improve from that. But he later gave up because I finish. Criticise me but you are going to criticise me about are you the machine or what? It is how I am. Even when I clean at home, and someone is cleaning and I see that he is cleaning slow, I will say ‘Leave, I will clean.’ And then you criticise me that why are you not giving someone a chance. That is me. I do not like a slow person. A slow person, like a person who is very slow. I feel that she is delaying things; and that is weakness. And when you criticise me, I take it but I am trying.

Chairperson: Are you still together?

Ms Ledwaba: I am trying to learn.

Chairperson: Maybe you can do a follow-up now.

Ms Ledwaba: I am trying to learn and I am trying to be like you, to be slow, but it is not me.

Mr Magwanishe: Okay, thank you very much. In your role as a Public Protector, there are two roles there: it is the role ‘the chief investigator’ and there is a role as an executive authority.

Ms Ledwaba: As?

Mr Magwanishe: An executive authority. How are you going to ensure that the two roles are in sync?

Ms Ledwaba: I heard about the executive role. The other one?

Chairperson: Magwanishe, if you could just come closer to the mic, the mic itself.

Ms Ledwaba: I am sorry.

Chairperson: Closer, closer, yes, as if you are talking to it.

Mr Magwanishe: Okay, can you hear me now?

Ms Ledwaba: Yes.

Mr Magwanishe: My apologies. I am saying that in your role as the Public Protector, it is two roles: the first role is your role as your chief investigator, and the second role is your role as an executive authority. How are you going to ensure that the two roles are in sync?

Ms Ledwaba: Are?

Mr Magwanishe: Are in sync.

Ms Ledwaba: Okay, by monitoring and evaluation. And, again… Yoh, it is a difficult question, but let me take my time, ne?

Chairperson: Please do.

Ms Ledwaba: Okay, the chief investigator’s role is totally different from the executive role. An executive role is a management role; it is where you manage the whole unit to make sure that things are done according to the book. And the investigation role is a core unit; it is the unit that brings work; it is the unit that must be most trusted. So as an executive manager, I am going to oversee this investigation unit. I am trying; it is a very difficult question.

Mr Magwanishe: You will not be an executive manager, you will be an executive authority/

Ms Ledwaba: An executive what?

Mr Magwanishe: You will be an executive authority.

Ms Ledwaba: Huh?

Mr Magwanishe: You will be an executive authority, not an executive manager. So you will have your CEO (Chief Executive Officer) and your managers.

Ms Ledwaba: Oh.

Chairperson: You still want to pursue it, Magwanishe?

Mr Magwanishe: No, I will not pursue it. But my eight minutes just started.

Chairperson: No, you may continue. I wanted to check if you still want to pursue this line?

Mr Magwanishe: No.

Chairperson: Okay, you may go onto the next question.

Mr Magwanishe: Okay, what are the three grounds of removing a Public Protector?

Ms Ledwaba: Dishonesty, misconduct… You are not impressed.

Mr Magwanishe: No, I am listening. I am listening.

Adv Breytenbach: You do not have to impress him.

Mr Magwanishe: Okay, it is fine. What is the majority that is required to appoint a Public Protector?

Ms Ledwaba: Majority?

Mr Magwanishe: What is the majority in the House that is required to appoint a Public Protector?

Ms Ledwaba: Yoh, I did not check that, but I am going to guess. I think it is 75[%].

Mr Magwanishe: Okay, no, it is fine. Can the National Assembly suspend a Public Protector?

Ms Ledwaba: Yes, the President will suspend…

Mr Magwanishe: I am talking about the National Assembly.

Ms Ledwaba: Let me not be in a hurry.

Chairperson: The question [is] who has the power to suspend the Public Protector?

Ms Ledwaba: Who has the power?

Chairperson: That is the question.

Ms Ledwaba: The President is the Head of State, akere? And then the Speaker is the Head of the National Assembly. And the Public Protector is appointed there at the National Assembly, not at the executive level.

Chairperson: Yes, go one.

Ms Ledwaba: So it means it is the Speaker.

Chairperson: Alright, you have been answered. Do you want to make a follow-up [or] are you done?

Mr Magwanishe: Chair, do you want me to be done?

Chairperson: Okay, I was checking if you still want to make another question?

Mr Magwanishe: No, no, it is fine, Chair. Thanks. Thank you, Ms Ledwaba.

Ms Ledwaba: Okay.

Chairperson: Colleagues, we… Magwanishe, you started at 12:13 and it is 12:21, so it was just within your eight minutes. But I did not give you an injury time. Right, I see. Colleagues, I think we have come to the end of this interview. Ma’am, thank you very much for agreeing to come to this interview. And I am sure you learned a lot and we also learned a lot from you. And we wish you well back home. Thank you so much. Colleagues, can we adjourn and come back at 13:00.

The Committee adjourned for a lunch break.

Chairperson: Okay, I am told that it was not the candidate’s fault that he is late. He landed on time. It was the transport that was arranged by our transport here – the people responsible for transport in Parliament – that messed the whole thing up. Is it the same company?

Committee Secretary: Yes, it is the same company. Instead of going to, I think it is, P1, they went to P2. When they got here to Parliament, instead of dropping him off at the visitors centre, they dropped him somewhere else and he had to walk up.

Chairperson: I thought we should just explain it because the whole process is publicised, it is public. And I am doing it to just to give him one or two minutes just to breathe in and breathe out. We have provided him with a bottle of water; I have not seen him drinking it. Oh, he has made his own provision.

Adv Breytenbach: He brought his own bottle of gin.

Chairperson: Prof, how are you, Sir?

Prof Boitumelo Mmusinyane: I am good and you, Chair?

Chairperson: Good man. What time you landed?

Prof Mmusinyane: Exactly twelve o’clock.

Chairperson: You landed exactly at twelve?

Prof Mmusinyane: And knowing Cape Town, the airport itself, it took me thirty minutes just to walk around and get to the exit out.

Chairperson: Shame. We are really sorry for that. But are you happy now? We can start with the interviews?

Prof Mmusinyane: I am happy. Yes, Chair.

Chairperson: You are ready. No, it is fine. Thank you very much. Thank you for accepting the invitation to come and have this interview with the Committee. We have received your CV, your questionnaire. Just if I may now, do you confirm everything that you declared in the questionnaire?

Prof Mmusinyane: Correct, Chair.

Chairperson: Is there anything else that you wish to declare, disclose or add?

Prof Mmusinyane: Not anything to my knowledge at the moment.

Chairperson: Okay, thank you very much. I will give you five minutes to briefly state why these Hon Members should consider you for appointment as a Public Protector. Five minutes, and the five minutes starts now.

Prof Mmusinyane: Thank you, Chair and Committee Members. When some people heard that I applied for this position, the first thing that came to their mind was, am I connected? And my answer to that [was] that is exactly what the position needs; someone who is not connected to anything or to anybody. That is what South Africa really needs at the moment. And at the moment, the Office has a low confidence, public confidence, in the sense that the manner in which the previous incumbent has run it, it seems like it has lost its credibility. And I seem to be someone who is capable of occupying that Office; that I cannot be bought, I cannot be threatened. I can only enforce what the Constitution prescribes to me as required. I can only follow what the law says. When I follow investigations, or when I do my investigations, I do it without fear, favour or prejudice. I do it to the best of my ability, and confident in my findings that I will always be justified by [the] facts, and the law, and nothing else. I cannot succumb to any political pressure. I cannot succumb to any form of threat. I am capable. And my work record is a testament to that effect. That I believe that South Africa needs someone who is not connected to anything because connected people do not sleep. I want to enjoy my sleep at night, and this is exactly what I will continue doing to the best of my ability. Thank you, Chair.

Chairperson: Thank you very much. You are a Deputy Director, Faculty of Law in Mahikeng Campus, correct?

Prof Mmusinyane: Correct.

Chairperson: And you completed your LLB in 2002?

Prof Mmusinyane: LLB?

Chairperson: LLB.

Prof Mmusinyane: Yes, 2002.

Chairperson: 2002. And you started work, formal work, from 2004 to 2005, with the Office of the Public Protector?

Prof Mmusinyane: That is correct. That was my first job.

Chairperson: That was the only experience as an investigator that you can record?

Prof Mmusinyane: I am also the acting commissioner of integrity for Madibeng Local Municipality. As part and parcel of my job is also to initiate investigations and conduct investigations that are, you know, in line with my job responsibility; council oversight, in as far as corruption, ethics management, enforcement of accountability measures, lack of consequence management, are some few of the few things that I am able to, whilst analysing the municipal state of affairs, enables me also to do that.

Chairperson: You think that qualifies you to… You think that, in your view, will benefit the Office of the Public Protector?

Prof Mmusinyane: Come again, Chair?

Chairperson: [Do] you think that will also benefit the Office of the Public Protector?

Prof Mmusinyane: Correctly, because if you look at the kind of mandate that I do there, it is more or less similar to what the Public Protector is doing.

Chairperson: Yes.

Prof Mmusinyane: Yes.

Chairperson: And in addition, you became a lecturer, a senior lecturer and you are now?

Prof Mmusinyane: A Professor of law.

Chairperson: A Professor of law?

Prof Mmusinyane: Yes.

Chairperson: Alright. No, thank you very much. And colleagues, I will then open up for the colleagues to have an engagement with you. Each Member has up to eight minutes with the candidate. Are you ready?

Prof Mmusinyane: Yes, Chair.

Chairperson: Okay, I will start with Hon Mananiso there. Hon Mananiso?

Ms Mananiso: Thank you, Chairperson. Welcome, Prof 'Mmusimanyane'.

Prof Mmusinyane: Mmusinyane.

Ms Mananiso: Mmusinyane, okay. Nice to meet you, Sir – the Professor of Law. When you were responding to the first question of Chairperson, you indicated that wena do not succumb to political threats.

Prof Mmusinyane: Correct.

Ms Mananiso: As I have seen your CV, I just want to check have you ever experienced any in your profession?

Prof Mmusinyane: If you look at my CV, especially under Madibeng Local Municipality – if you do not know it is one of the notorious municipalities in the North West province, where there is rampant impunity, incompetence, maladministration. This is going to be the sixth year that the Auditor-General is going to declare a disclaimer audit opinion on its state of affairs. When I was appointed there, a year ago, I told Council that I am here to help you in as far as the Auditor-General’s concerns are. And it is the job that I'm going to do. And I expect no one to interfere with my job. If I do not do my job, you must remove me. But the evidence that has been there that I have also noted is that there is a lack of political will, in as far as the Council itself, to ratify my reports, my recommendations in as far as because I have identified a lot of irregularities that requires further investigations. Some of them, I have recommended to the municipality what action needs to be taken. The Council, in particular members of the executive, are playing delaying tactics, are not enabling me to support my office, which was broken into. And I continue to still do my job despite them having to declare that they do not want this office because it is part of the previous administration. I do not know if I have answered your questions, but that is an example, a recent example, that I can indicate to you that it still remains there.

Ms Mananiso: Alright. On your own understanding, what is fit for purpose?

Prof Mmusinyane: What is?

Ms Mananiso: Fit for purpose.

Prof Mmusinyane: Fit for purpose? Fit for purpose is a test that is determined by our law in as far as to look at the overall demeanour, the integrity, the image, the reputation and the honesty of a person. It is a test that is applied in as far as determined if someone is fit and proper for the purpose in which the person is applying for a job for. It has been elaborated quite in detail in the Menzi Simelane case, in as far as the National Director of Public Prosecution case is concerned. So in a way, you need to look at it not in a singular manner, but in a holistic way, in a cumulative way, in order for you to come to an informed and objective conclusion that the person is not fit and proper for that position.

Ms Mananiso: Okay. I think you understand whether the current issues and the state of affairs in the PPSA. So if you were given an opportunity to be the PP, what are your key priorities or special project that you would say that within three months, this is what I would focus on?

Prof Mmusinyane: In answering your questions, I do not think three months will be fair and adequate to me. But this has never been done by any PP and for the past twenty- eight years since the existence of the Public Protector, to conduct a high policy level review of government state of affairs. A particular example I will refer to is the bailing out systems; how [the] government bails out state-owned enterprises. To date over five-hundred and eighty-six billion, for two decades, has been spent on bailing out these state-owned entities, but there is no systems or guidelines in place, no monitoring systems, not even enforcement systems as to how did the money that went to SAA [was] spent; and what is that government and the people of South Africa getting from it. That is just one typical example. We have the water boards, eight of them, one has just been liquidated – by the way, even their website now has been removed as well, I guess to protect the board of directors. But we have rampant shortage of water; people are drinking unclean, unhealthy water. And the governance systems there as well is not something that anyone, except the courts, will look at it. This gives the Public Protector an opportunity to dig deeper into such. We have got the SETAs as well. The unemployment at the moment stands at about 62% of the youth. And this is an opportunity where these SETAs could play an incremental role, in as far as the employment and entrepreneurial development of the country’s concerns. How are government measuring, monitoring the money they are sending to these state-owned enterprises. Those are just some of the few – I have quite a lot of them that I can mention, if you can allow.

Ms Mananiso: And your understanding of conflict resolution and conflict management?

Prof Mmusinyane: I think we must all agree that it is highly impossible to have an environment where there are no conflicts, an environment where everyone agrees with everyone. So in that midst it means that you understand that there is conflict that is always going to manifest itself, you need to always understand as to how do you manage conflict on a personal level, at an employment level, you know, and supervise someone with higher authority to the lower authority. So the conflict management there entails me being able to ensure how I resolve such kinds of conflicts without necessarily alienating any of the persons that are involved. Conflict resolutions on the other side, is trying to find a solution that is aimed at advancing the interests of organisations, not of the individual. Sometimes resolution can result in one not being happy, the other one being happy. But if it is for the benefit of the organisations, it is quite really, you know, a possible way to deal with it.

Ms Mananiso: Okay. Then my last question is around the role of Chapter Nine Institutions and departments that actually support them, for example, the Department of Justice, in terms of issues of law enforcement. What is it that you think that is not properly done in terms of Chapter Nine Institutions and these direct departments, that if you were to be appointed, you would bring as an innovative mechanism?

Prof Mmusinyane: The inter-governmental relations requires, in terms of the Constitution, all kinds of states to come together and facilitate as to how can they best resolve the interest or the issues that affect the interest of the country. If I can be appointed, I will ensure that there is that cordial relationship between the two. There is this perception that the Public Protector should be seen to be, you know, in contact with these government departments, but actually, that could be a beneficial relationship, if one thinks of it. We need to be proactive, not reactive, in as far as how do we deal with, you know, cases that are reported to us. But by opening our doors to these kinds of departments enables us to better understand their efficiency, their operations and how can we best then, even themselves, assist us as well. We also seem to have an issue of budget constraints as the Public Protector. That is an opportunity that can also be explored there, in as far as ensuring these government departments assist, in terms of Section 182, and respect the obligations, the duties of the Public Protector and provide support when it is necessary. That does not mean that when that is done, the Public Protector cannot be independent, cannot be impartial.

Ms Mananiso: Okay. Thank you, Chairperson.

Chairperson: Thank you, [Hon] Mananiso. Hon Breytenbach?

Adv Breytenbach: Thank you, Hon Chair. Good afternoon, Sir.

Prof Mmusinyane: Good afternoon, advocate.

Adv Breytenbach: Do you have a copy of your questionnaire available?

Prof Mmusinyane: Yes.

Adv Breytenbach: Okay, Sir. Would you turn to page eight, please.

Prof Mmusinyane: I am there.

Adv Breytenbach: You suggest from paragraph nine and onwards that for the twenty-eight years since the establishment of the Public Protector’s Office they have not, in your view, succeeded in tackling deep-rooted systemic challenges. You then set out how you view the Office; the work that it can do, the powers that it has, and how it should be funded. And then you, in paragraph fourteen on page nine, go to say ‘Cognisant of the powers that the Office of the Public Protector possesses, the following are just a few examples of new high-policy reviews that you intend to do and will pave the way for. And then you set them out there: the review of government, SOEs, bail out policy, governance of liquidated water boards, governance of all SETAs, occupation of public office by unqualified personnel, right of access to adequate housing, local government sphere is dysfunctional, mediation is underutilised, and then you deal with Public Protector funding and litigation. Bearing in mind that I have eight minutes and I have other questions, could you, very briefly, please, set out how you intend to tackle this issue that you set out here.

Prof Mmusinyane: Section 195 of the Constitution talks about the necessity to have a public administration that is governed by democratic values and principles amongst them, ethical, higher ethical standards and professionalism; the use of economic resources in an efficient and effective manner. So how I intend to utilise this kind of a policy review system is using Section 195 to say that [the] National Assembly has a responsibility to ensure that the needs of the people are met. And in this instance, you find that, for example, the bailing out system itself; what is it that [the] government gets or receives as value for money out of it, because this is public money? The fact that it does not necessarily deal with provisions of basic services out there, does not necessarily mean that that money needs to be ignored. It is still the public purse that needs to be guarded jealously. So this is how I intend to use Section 185, in as far as trying to dig deeper into these governance systems, because if a tap runs dry, it is not because the tap runs dry because there is someone who switched it off yesterday. There are certain systematic things that exist within that organisation that could lead to the results of the actual results of the tap not running [or] not having running water. For example, how did [the] Sedibeng Water Board get liquidated and no one says anything about it? It means everyone who was there is left off the hook. That is public money. So there needs to be accountability measures in place. So by using this policy system is to ensure that the National Assembly, through the National Treasury, you know – I mean the Minister of Finance – when they issue this kind of bailout, they are not just free handouts. They need to be properly guarded, monitored and followed and enforced, as well, so that we can, in the end, know that the money that went to SAA, to Denel, this is the value that the public got. But in the absence of that, unfortunately, it means that we are just pumping money into, you know, state-owned enterprises but the public purse keeps on bleeding, and the taxpayer keeps on paying for it. But nothing has been said about that.

Adv Breytenbach: So if I understand you correctly, you are going to use your office to hold Parliament to account?

Prof Mmusinyane: Correctly.

Adv Breytenbach: Then – also briefly, please – could you tell me what you understand under the extent to which an administrative decision is susceptible to review under the South African constitutional order?

Prof Mmusinyane: You mean under what circumstances can you review administrative decisions under the Constitution?

Adv Breytenbach: Yes.

Prof Mmusinyane: This is twofold. There are certain decisions that are not subject to Promotion of Administrative Justice Act (PAJA). Those are the decisions of the President, the national executive, as well as the provincial executive. However, there are instances within which these Ministers and the President that they exercise this kind of decisions that will be categorised as administrative action, as well as non-administrative action. For example, a promulgation of a bill itself is a legislative authority, which you cannot apply PAJA to it. But the implementation of this policy, you know, once it has been implemented, how is it implemented. The Minister could still be held accountable under the administrative law systems, not necessarily under the Constitution. It is the same as the Public Protector as well, you cannot review his or her decisions using administrative law because he' is a constitutional authority; that can only be done through legality, you know, principles. The same as the President's decisions that you cannot use PAJA, but rather use the Constitution as the principles of legality to review such.

Adv Breytenbach: So from where does the court derive the power to review administrative action?

Prof Mmusinyane: The court derives its power… The court, as in the Constitutional Court or the High Court?

Adv Breytenbach: Court.

Prof Mmusinyane: The court in general?

Adv Breytenbach nodded her head in the affirmative.

Prof Mmusinyane: The court derives its power from the Constitution, for example. And then others are creatures of statute; that is where they derive their power to review such kinds of decisions.

Adv Breytenbach: Thank you. Thank you, Mr Chair. I am done.

Chairperson: Thank you very much. Hon Maotwe?

Ms Maotwe: Thank you, Chair. Hello, Professor.

Prof Mmusinyane: Hello.

Ms Maotwe: How are you?

Prof Mmusinyane: I am well thank you. How are you?

Ms Maotwe: I am well. Am I correct to say you did an interview on Newzroom in April 2021, regarding the matter between former President Jacob Zuma and the Zondo Commission on his non-compliance in appearing before the Commission?

Prof Mmusinyane: Okay. Yes.

Ms Maotwe: You did?

Prof Mmusinyane: Yes.

Ms Maotwe: And in that interview you expressed that the Constitutional Court should have afforded the former President an opportunity to present his case; it should have just sent him straight to jail. Is that correct?

Prof Mmusinyane: Can you say that again?

Ms Maotwe: Did you, in that interview, express that the ConCourt should not have listened to the former President; it should have just taken a decision to send him straight to jail?

Prof Mmusinyane: I think it needs to be contextualised. It does not mean that. It means that… What I have said there is an instance where there is no merit to the case in which he brings to the court, which essentially means that if there is no merit to your case, it means that essentially it means in this instance that President Jacob Zuma should have just been sent to the court. So it is not just to say that he is not supposed to have any right, in as far that is concerned. That is why I am saying that it needs to be contextualised in that light.

Ms Maotwe: But I want to understand what did you say [that] regarding that matter. Did you say that the ConCourt, specifically to that case, do not generalise. On the case of Zuma and the Zondo Commission, what was your view? Was your view that President Jacob Zuma should not have been afforded the chance to be listened to by the ConCourt but just be sent to jail?

Prof Mmusinyane: Like I am saying, [the] context in which I answered that question.

Ms Maotwe: Did you say that, Prof?

Prof Mmusinyane: I do not exactly remember saying it in that particular [way]. All I am saying is the context in which I have said it is informed by evaluations of the case beforehand, and making a determination based on the case beforehand. There is no merit in this matter being taken to the Constitutional Court.

Ms Maotwe: Is that your belief, that there is no merit?

Prof Mmusinyane: Yes.

Ms Maotwe: Alright. In the same interview, you asserted that the judiciary serves as a cornerstone for South Africa’s democracy.

Prof Mmusinyane: Correct.

Ms Maotwe: Is that still your view?

Prof Mmusinyane: Yes.

Ms Maotwe: And would you consider the judiciary, including the ConCourt itself, to be transparent and forthright in its dealings with the general public?

Prof Mmusinyane: Unless something comes to the fore, but my stance still remains to be it is the cornerstone of our democracy. There has not been any tangible evidence been brought to say that it has been capable of being captured or it has been captured. And until such time that will remain my view.

Ms Maotwe: So what is your view on the… I know it is not… Okay, let us leave that one. Have you overseen any doctoral students during your tenure, and how many so far?

Prof Mmusinyane: I am overseeing two at the moment. I have not completed any one.

Ms Maotwe: So at any stage of your professional journey, you say, from the time you were a doctor up to now, you have seen two?

Prof Mmusinyane: Yes. Remember, I had to resign from UNISA, so it means those that were there I have to leave them. So when I arrived in Mafikeng, in North West University, that is when now I have started to continue afresh with new students there.

Ms Maotwe: Do you have direct reports or managers reporting to you, staff reporting to you?

Prof Mmusinyane: Yes, I have got over thirty staff that are reporting to me.

Ms Maotwe: I observed that you have held the accounting role of commissioner of integrity at Madibeng.

Prof Mmusinyane: Correct.

Ms Maotwe: It has been over two years now?

Prof Mmusinyane: Yes.

Ms Maotwe: Why is that the case?

Prof Mmusinyane: I was head-hunted to assist the municipality to turn things around in this office. We have 278 municipalities in South Africa: only four seem to have established this kind of an office, it is Ethekwini, Ekurhuleni, City of Johannesburg and Madibeng. So it is quite a new kid on the block in as far as trying to enforce accountability over municipal state of affairs. And my job there is to say… I was instructed to establish the office [and] run it until such time that the municipality is ready to appoint someone there on a permanent basis – not on a permanent basis, on a term basis.

Ms Maotwe: So earlier on, you said there are concerns that you have raised to the municipality that are not implemented?

Prof Mmusinyane: Correct

Ms Maotwe: Can you just give us three of them?

Prof Mmusinyane: Alright. We all know the infamous VBS saga. The Auditor-General has made a disclaimed audit opinion and also recorded material irregularity. In that instance, it means that the Auditor-General will keep that material irregularity on its file until such time that it is resolved. When I came in there, I assessed and realised that the municipality has employed professional forensic investigators. They have submitted reports and I have went through each and every of those reports and realised that they are not of good quality. They are not of good standard. They are not credible. They cannot be relied upon by the municipality. And some of them were still in a draft stage. But the municipality has fully paid for such kind of services. I then went to [the] Council and advised them that you cannot have any case… You are not going to win any case with these reports that you have paid for that you are not getting value for money for. So we need to find a way in which we resolve this. For example, the VBS saga – Provincial Treasury has already investigated it with CoGTA (Department of Cooperative Governance and Traditional Affairs). So we managed to assist to request National Treasury’s permission, and even CoGTA, to give us permission to use their VBS forensic investigating file They agreed and even the company that did the forensic also agreed. So I went back to Council, to say that ‘Council, here is the report that is ready, that needs to be referred to be disciplined.’ Disciplinary boards, that I have mentioned, seem to be an issue at municipal level. Most of the municipalities do not have including Madibeng. I advised them that because this relates to financial misconduct, in terms of the Metsimaholo case, you cannot have a disciplinary hearing that is run without the establishment of a recognised disciplinary structure in place. They listened and put that structure in place, but it is not operational for their own reasons. That is the first one. I am not sure if…

Ms Maotwe: Yes, but you are eating on my time. Just wrap up quickly the second one, which is the major one.

Prof Mmusinyane: The second one was a payment of about eight million to a company without an invoice. While the SIU has already indicated that they have concluded the investigation to be an irregular contract.

Ms Maotwe: So earlier on you said the funding of municipalities is an issue; we get low funding. It is also the case with the Public Protector’s Office, there is limited resources. How, if you were to be a successful candidate, are you going to mitigate that?

Prof Mmusinyane: Without wasting any time, I will say it is mediation. It seems to be an alternative dispute resolution. It seems to be the quickest and the cheapest way in which you can resolve conflicts. If you look at the annual reports, most of the cases are resolved through investigations, whereas you can use the cost-effective one. The main one that I will do is the Public Protector Amendment Bill: I will push for that Bill. The Auditor-General seems to have a privilege, in terms of the Constitution, to charge government departments, state-owned enterprises for audits that they have done. This is so as to capacitate the Auditor-General to execute its constitutional mandate. I will introduce that kind of an approach where [a] certain investigation needs to be charged in as far as to mitigate against this kind of scarce funding that the Public Protector seems to be suffering upon. So we need, as well, to ensure that we maximise these state departments by referring certain matters, for example, in the PRASA (Passenger Rail Agency of South Africa). There is an investigation that the Public Protector has done, and instructed PRASA to do a forensic investigation. These are just some of the mitigating measures where you are able to check and see which matters can best be dealt with or assisted or referred the matter to other agencies, so that we maximise on the limited resources that we have.

Ms Maotwe: Chair, I still have some time. You have asserted that you execute your duties without bias, favour or prejudice. Can you cite an instance where you acted in such a manner?

Prof Mmusinyane: Where I have executed without fear, favour or prejudice?

Ms Maotwe nodded her head in the affirmative.

Prof Mmusinyane: The Madibeng Council statements where I have indicated to them that I am here to do my job, do not bother me; if you bother me, just know that I am still going to do my job. That is the example that I can relate to, that I am doing my job there without fear, favour or prejudice. Because some of the people that are affected there used to be people that I have worked with, you know, in a number of reports. But unfortunately, if the report is factual, I cannot do anything about it. I just have to push it so that it can be held accountable.

Chairperson: Thank you very much. May I now invite Inkosi Buthelezi?

Inkosi Buthelezi: Thank you, Chair. Afternoon, Prof.

Prof Mmusinyane: Afternoon, Sir.

Inkosi Buthelezi: If you are appointed as the PP, you will be taking complex decisions. Can you just ask them two questions that you will ask yourself before taking a very complex decision?

Prof Mmusinyane: Have I done my background investigation? Is my investigation or my findings justified on facts and also on the law? Is the remedy that I have taken, is it suitable and effective: that remedy and the conduct itself?

Inkosi Buthelezi: Okay. In your interview you overstressed your commitment to integrity, ethical culture, and you cannot compromise on those. Of course, you may, if you are appointed, take over an office that has issues in this regard. How are you going to instil this culture if you are considered?

Prof Mmusinyane: There is one thing, we are all born ethically. [It is] only when we grow up that we begin to abandon the, or ignore them. But the minute you step into a public office, there are certain standards / ethics, that are prescribed there that you need to follow. So my job when I step in there is to ensure that professional ethics conduct that is in the public service, whoever is in that occupation complies with them without any exceptions to that.

Inkosi Buthelezi: Thank you. How would you rate the importance of transparency in this position, and how are you going to promote that from top to bottom?

Prof Mmusinyane: Transparency being that for everyone to see what I am doing. If a political party comes to me to lodge a complaint, let it not be in closed doors, let it not be in secret, let it not be behind curtains: everything needs to be there. If anyone wants to see me, let it not be in the dark, let everything be in plain sight so everyone so that they can see; just the simple terms of transparency.

Inkosi Buthelezi: What are some challenges that in your previous jobs that you believe have prepared you to better suit in this position?

Prof Mmusinyane: The challenges that I experienced before that has prepared me for this is when I was the Inspector, I was working for Gauteng, [Department of] Economic Development. There is a lot of opportunities where someone could have just been… because we were doing liquor licence applications, liquor licence compliance, and in Gauteng in particular. So it was easy to get money. And even if people would, they just said ‘No, it is our culture to thank you.’ I have never… I do not accept any such kind of things, as long as I am doing my job. And that has been the principles that have governed me throughout that it is my job that needs to demonstrate who am I and what am I, where am I going; not necessarily that I need favours from anyone. I live within my means, and that is exactly that: nothing else.

Inkosi Buthelezi: If appointed, you are going to lead a team of different individuals, some highly motivated, some demotivated, of course. Which steps will you take to ensure that your employees are giving maximum output?

Prof Mmusinyane: It is very important that you need to understand the calibre of the people that you have employed. That it is important that you do one on one consultation. Yes, it may take time; some may say it is not. I have done it when I have occupied these positions, and there are a lot of things that came up during that time, in order to understand better and how to know how you can best support your colleagues. I exercise an open door policy where anyone, at any time, if I am not in a meeting or working, they can come to me. And that seems to be a working thing. Second, I encouraged an environment where questions are asked, where decisions are taken based on decisions. And even if me in the position of authority, say something that is not correct, a junior employee should just stand up and say ‘Sir, you are not telling the truth, and these are the reasons that are.’ There is nothing that needs to be personal there. So I believe in authority that not necessarily threatens people, but invites people so that collective decisions can be best supported by everyone.

Inkosi Buthelezi: I think I am okay, Chair. Thank you so much.

Chairperson: Thank you very much. Hon Tlhape?

Ms Tlhape: Thank you, Chair. Good morning, Prof.

Prof Mmusinyane: Good afternoon.

Ms Tlhape: Oh, it is an afternoon already? At least you are still alert. Prof, on your opening remark or presentations, you made an interesting anecdote on connections. What would you say is at the centre of the challenges that is affecting [the] government and the country? I am taking that from what you have spoke about on connections.

Prof Mmusinyane: We live in a country where most or the majority of the services seem to be only afforded to those that are connected or those that know people that are connected. We live in a country where it has educated people but they are ignored because they are not of a political or certain political affiliation, or they are not really connected to people. We live in a country where the Constitution asks so much, but little has been provided to those in actually in need of. We need, as public office bearers, to take responsibility amongst ourselves, that these jobs are a privilege to us, not to enrich ourselves and our families. We need to ensure that and also be mindful of the fact that we have a country to run. It is not as if once you are done with your job, you have another country to live at. How do you feel when you pass streets where sewerages are running across the streets, the robots are not working, there are potholes each and everywhere. But there are people that wake up each and every day that goes to work wearing suits, going to meetings and all those things. What kind of ethical culture do we actually have, when we ignore so much that are visible in front of our eyes. So in that instance, I will say that even people that are employed to a certain extent. Like I said, I used to work for the Department of Economic Development, where my director of a legal department was a PA (Personal Assistance), a former PA to the MEC (Member of the Executive Council): no legal qualifications. What does that do to someone who this country promised to say go to school, education is the future. I am not saying uneducated people should not be employed, but you need to where is your space because government policies they exist, they are implemented by these kind of people that have no idea as to what background do they actually come from.

Ms Tlhape: Thank you, Prof. Now, having served in the Public Protector’s Office for a year, that is 2004 to 2005, what assessment can you make of the PPSA since then, relative to its present state?

Prof Mmusinyane: I used to do my investigations through written format. Though I had an issue with that, that as an investigator you need to stand up and go and investigate, not writing of letters. And I do not think that much has changed, that is a first. Things have evolved. Right now, [the] Public Protector seems to deal with some complicated financial-related misconduct or transactions that me, as a lawyer, I cannot investigate. So the Office needs to transform itself. Yes, it does advertise to have forensic investigators amongst its team. But there is little of such that you can find. So the Office does not really utilise its recruitment policy to attract, you know, not just lawyers. Things have changed. Even the advert when you see it, it does not talk about mediation. It does not talk about alternative dispute resolutions. But we actually need these skills so that we can unburden the workload that the Public Protector is actually having. And if you look at my CV, the last two pages I attached, I think, two conflict attendance certificates. That was deliberate to demonstrate to you that a mere attendance does not in any way enhance your skills; you need to be assessed in order for you to be able to be competent in that skill. I attended mediation only in 2017. And little did I know that whatever that I thought was mediation, it is not really something that is there. So the Office actually needs to transform itself to that extent.

Ms Tlhape: Now, Prof, rationality, reasonableness, and proportionality are critical legal principles that impact on legality. What is your understanding of testing rationality, reasonableness, and proportionality? And please give examples.

Prof Mmusinyane: When you talk about rationality, it means that the decision that needs to be taken is a rational one, it is the one that can be supported; you can justify it. Reasonableness is a method or a measure in which you take certain steps in order for you to address what you found to be inadequate. So in other words, you try to assess as to whether by doing this act, A, you know, is it reasonable if you put that action in as far as solving. Proportionality is about balance. It is not necessarily taking one side, but it is about balancing the two. Now, when the court has to review certain decisions, it is guided by this principle to say: was the decision of the Minister rational? Was the decision of the Minister supported by evidence or facts or policies? If it is not so, then it means that it cannot be regarded as reasonable. And when it is not reasonable, it also cannot necessarily be proportional to the measures that have been undertaken.

Ms Tlhape: My last question, Chair. Prof, how will you position the PPSA to enhance the oversight and legislative mandate of Parliament?

Prof Mmusinyane: How will I enhance the PP’s oversight?

Ms Tlhape: How will you position it to enhance the oversight and legislative mandate of Parliament?

Prof Mmusinyane: Oh, position it. It is to remind Parliament that it is there to serve the people. It is to remind Parliament that the policies that they make has to have stringent monitoring, effective enforcement mechanisms in place; it is to ensure that the people's needs are catered for where they are needed; it is to ensure that policymaking involves the citizens of this country; it is to ensure that whatever that they do, it is not serving the interests, but the interests of the people. They took an oath to the Constitution, they must serve so, not in allegiance to a political party, but to the Constitution itself, because sometimes you are guided by, you know, physical, you know, allegiance to a political party, which does not necessarily serve the interests of the country at that particular time.

Ms Tlhape: Good afternoon, Prof. Thanks, Chair.

Chairperson: Thank you very much. May I have Hon Horn?

Mr Horn: Thank you, Chair. Good afternoon, Prof.

Prof Mmusinyane: Afternoon, Sir.

Mr Horn: In your last answer, just now, you referred to reminding Parliament that they must serve the people when they formulate policy. Can you explain to this Committee how Parliament formulates policy?

Prof Mmusinyane: Parliament is there to pass laws, and within those laws that are policies that follow out of it. And it is in those instances that when Parliament considered these laws, consideration is also best given to the policies that follow the same legislation. For example, having the Housing Act in existence, which is now implemented through policy. Parliament should not distance itself to the policy measures, but only to the legislation itself, because that cannot be separated. They need to be mindful at all times that these policies are informed by the legislation which they have passed. And they need to check and verify and confirm if such policies are still serving the legislative measures that they have passed.

Mr Horn: So as a Professor in law you are familiar with the principle of the separation of powers?

Prof Mmusinyane: Yes.

Mr Horn: So in terms of the separation of powers, on whose domain is policy making?

Prof Mmusinyane: Policymaking?

Mr Horn: Yes.

Prof Mmusinyane: We have the judiciary, we have the executive and the legislature. It is the legislature that does that.

Mr Horn: Okay, it is not. It is the executive. So in what instances ordinarily are decisions of the executive reviewable? You touched on it earlier. What is the distinction then between executive decisions and decisions administrative in nature taken by the executive?

Prof Mmusinyane: Can you repeat the question again, so that I can…?

Mr Horn: So when are decisions of the executive reviewable?

Prof Mmusinyane: Okay. The executive decisions are reviewable in instances where they are not rational, when they are not reasonable, and when they are not, in accordance with the law. When they were taken in bad faith, for example, when they were taken influenced by other extenuating factors or external factors that cannot be justified by law, then they can be reviewed. Remember, they cannot be reviewed under the administrative. It depends as to whether that decision falls within the constitutional framework or within the administrative framework. That is when they can.

Mr Horn: Okay, so you, you said that one of the things you would change in terms of the funding of the Public Protector is to table or introduce the Public Protector Amendment Bill? How will you be able to do that?

Prof Mmusinyane: The portfolio committee is tasked with presenting such a Bill for consideration. So it is upon me as the Public Protector to propose such an amendment and convince the committee that this is the avenue in which that needs to be… to alleviate the resource constraint that the Public Protector is suffering.

Mr Horn: And where in the Public Protector Act or the Constitution [is] the Public Protector afforded that authority?

Prof Mmusinyane: To?

Mr Horn: To initiate legislation.

Prof Mmusinyane: We are not initiating legislation. I am saying I will convince the committee to initiate such legislation to that effect. Maybe I have not said it clearly in that regard.

Mr Horn: Thank you, Chair.

Chairperson: Thank you very much. Hon Wessels?

Mr Wessels: Thank you, Chairperson. Good afternoon.

Prof Mmusinyane: Afternoon, Mr Wessels.

Mr Wessels: Let us go back a step. You just reflected a while back on your time with the Department of Economic Development in Gauteng; there you had to deal with the liquor board, am I right?

Prof Mmusinyane: Yes.

Mr Wessels: And liquor licences as well. You reflected to your supervisor and his qualifications. But whilst you were there, did you ever see or hear about any irregularities or bribes or anything like that?

Prof Mmusinyane: No.

Mr Wessels: Not at all?

Prof Mmusinyane: No.

Mr Wessels: Okay. If you had, what would you have done?

Prof Mmusinyane: I would have reported it.

Mr Wessels: Why did you leave the department?

Prof Mmusinyane: By that time I was having my Masters of Law, and I already started with my doctorate. And I have already reviewed and assessed that I do not think the environment within which I am best, supported my career advancement where I need to be. Actually, when I resigned from the Department of Economic Development to join UNISA, I ended up earning less. So the position was not about money, but about the career growth, the career path that I was pursuing there.

Mr Wessels: Prior to that you were in the Office of the Public Protector. Why did you leave there? You were only there for a year.

Prof Mmusinyane: I was still young, still exploring. I can say that is just an opportunity that once in a lifetime, you will do that as you enter the employment sector.

Mr Wessels: You spoke about the environment but would you not say you are more inclined to the academic environment? Is that where you feel safe?

Prof Mmusinyane: I will say at that particular moment, yes.

Mr Wessels: Not at the moment anymore?

Prof Mmusinyane: If national duty calls, I am ready.

Mr Wessels: Okay. What equips you to unite – because as a Public Protector, you would have to lead a team of staff members – that team and to inspire that team and to lead that team?

Prof Mmusinyane: It is actually to invite the team to be with you, that you are not there necessarily to pull them, they are there to pull you, because as a Public Protector, you are nothing without that team. In fact, that team is the core crop of your career during that particular time. Some of them have institutional memories. As a Public Protector, you may not have insight into certain things, so having that team at your beck and with your day brings you that confidence.

Mr Wessels: Okay. Alright. But what in your experience, up until now, in your career equips you to inspire that team?

Prof Mmusinyane: My background. My experience in life, that you cannot achieve anything unless you are having a collective because if you work with people, you require a collective mindset, not an individual mindset.

Mr Wessels: You spoke about the new, well, actually not that new, the Public Audit Act and the power that it gives to the Auditor-General to issue certificates of debt.

Prof Mmusinyane: Yes.

Mr Wessels: And if I understood you correctly, you are saying that is something that can be explored for the Public Protector as well to enforce remedial action. But have you researched and do you have any facts with regards to how efficient that Public Audit Act Amendment is actually being implemented with regards to certificates of debt?

Prof Mmusinyane: It is efficient in the sense that you do not see the Auditor-General mentioning in her annual report about resource constraints. You do not see the Auditor-General being unable to fulfill her mandate and says that the resources are a problem. So in that way I would say it is because… Remember, this Public Audit Act what it does is enable the Auditor-General to source private auditors to do work for the Auditor-General, and in so doing they follow the prescribed rate in which they have been accepted, in terms of the Act, to use. So that enabled the Auditor-General with that capacity to execute their mandate.

Mr Wessels: Okay. But is it not so that the Auditor-General indicated last year that she would rather, in most cases, not issue certificates of debt because when the intention was issued, municipalities already indicated that they will litigate against it?

Prof Mmusinyane: Well, it has not been tested. And as far as I know, if the law is enforceable, it needs to be enforced. It can only be once the court has made a determination that they are unenforceable.

Mr Wessels: Do you think it is enforced currently?

Prof Mmusinyane: In terms of the Act, it is enforced, so it is enforceable.

Mr Wessels: Enforceable but it is not enforced,

Prof Mmusinyane: Come again?

Mr Wessels: It is enforceable, but is it implemented currently?

Prof Mmusinyane: Yes.

Mr Wessels. Okay. Last question, Chairperson. If you look at the functions and the mandate of the Public Protector, would you say that the Public Protector should initiate more investigations on its own accord? And if so, what would your criteria be to have those or to do investigations on own-initiative?

Prof Mmusinyane: Without necessarily from your questions, once I come into the office, I will prescribe mediation as the first step in which all cases needs to be subjected to new cases, so that you can check and determine as to whether you can resolve them. Now, own- initiative investigations means that the Public Protector’s ear must always be on the ground. So it cannot be something that the Public Protector cannot do; in fact, [it] needs to be because I propose as well, to do unannounced visit[s] to public infrastructures. That is just another way in which you can extend… just to say these are the infrastructure that government should be taking care of and they are not being taken care of.

Mr Wessels: Okay, thank you.

Chairperson: Thank you very much, Hon Wessels. Hon Lesoma?

Ms Lesoma: Thank you, Hon Chair. Good afternoon, Prof. Prof, in your responses that you have being given to my colleagues, they are very interesting statements that you made, especially from the first and the second Hon Member. Do you vote?

Prof Mmusinyane: Yes, in my village.

Ms Lesoma: Okay, so ordinarily, you vote for a certain political party, which is good. Thank you very much. Having said that, I am not sarcastic. One of the questions that you were given to respond to, you opted not to say yes or no in that section. I would like to know why?

Prof Mmusinyane: Which one?

Ms Lesoma: No, I will read it to you.

Prof Mmusinyane: Okay.

Ms Lesoma: Where it says: ‘Are there any matters of concern that will border around honesty, integrity and reliability which should be brought before this Committee’ as we engage with your good self.

Prof Mmusinyane: And I answered.

Ms Lesoma: I have gone through it, but why did you not say yes or no?

Prof Mmusinyane: I think maybe it was just a simple mistake. But the fact that I have answered seems to imply that I indicate that I…

Ms Lesoma: Oh, it suffices to you?

Prof Mmusinyane nodded his head in the affirmative.

Ms Lesoma: Thank you. The other one that I would like to ask, sort of a follow-up. Your understanding, because you have explained the judiciary and Parliament and all that and who makes the laws and so forth. Parliament accounts to who? And what constitutes Parliament and the State? What is the difference between the two? I know that you are a Professor, you know it. But based on your responses I would like to get it direct to the point.

Prof Mmusinyane: About who Parliament accounts to?

Ms Lesoma: Who is Parliament, first?

Prof Mmusinyane: Come again?

Ms Lesoma: Who is Parliament?

Prof Mmusinyane: Parliament is a composition of all political parties in proportion.

Ms Lesoma: Okay, what constitutes Parliament?

Prof Mmusinyane: What constitutes Parliament?

Ms Lesoma: Yes.

Prof Mmusinyane: Political parties.

Ms Lesoma: Okay, in the South African Constitution it says Parliament constitutes both Houses: National Assembly and National Council of Provinces, and then the warm bodies come in. Let us move. In your response, you said you are here… What is it? When national duty calls, then it calls. If that nature calls to be appointed here, what difference, add-value that you would put? And what compelled you to apply for the Public Protector of position?

Prof Mmusinyane: I believe at one point in one's life, needs to challenge themselves and move away from the comfort zones. I am one of those that I believe in challenges. And actually for applying in these positions is one of those to believe that I think I have done what is necessary for what the positions can actually is in need of; that I am confident that I will best execute that duty.

Ms Lesoma: Okay. Chair, through you. Prof, in one of your responses on one of the municipalities that your services were required, you gave them a clear that who are you in terms of that if they do not take your advice, then they must release you and you opted to release yourself from that. Here, what is your understanding of the role of the Public Protector in respect of requirements of the Executive Members Ethics Act? And also, as the Public Protector, in terms of the mandate – I know that in terms of removal and appointment it is a different process – but in your understanding, [the] Public Protector accounts to who/independence, in your understanding in that space?

Prof Mmusinyane: The Public Protector accounts to the National Assembly.

Ms Lesoma: Thank you, Chair. I am done.

Chairperson: Thank you very much, Hon Lesoma. Hon Magwanishe?

Mr Magwanishe: Thank you, Chair. Good afternoon, Prof.

Prof Mmusinyane: Afternoon, Sir.

Mr Magwanishe: People who know you, how would they describe you? And how would they describe your leadership style?

Prof Mmusinyane: Those who know me will know that I am a simple person, who is brutally honest, who does not believe in shortcuts. And those that work with me will understand or will tell you that I support everyone. It is my desire to see everyone succeed. It is my desire to see anyone happy in the employment environment, because that is where you spend [the] majority of your existence, your lifespan. So it is one of those things that they know and associate myself with, that we are not here to be miserable. We are here to do our work. And let us do it while we support each other.

Mr Magwanishe: How do you handle criticism from others?

Prof Mmusinyane: I love it because it is only through criticism that you will best understand certain things that you thought you were doing right. And as long as it is levelled in a constructive manner, and it is not aimed at undermining.

Mr Magwanishe: What was your largest contingent of people you supervised that were reporting to you?

Prof Mmusinyane: Supervisions in terms of studies or?

Mr Magwanishe: No, not studies.

Prof Mmusinyane: The largest one is thirty.

Mr Magwanishe: Thirty?

Prof Mmusinyane: Yes.

Mr Magwanishe: Oh, okay. Now, we have a Public Protector Act that predates the Constitution. And you have indicated that you would want to initiate or ask us that there should be amendments. Which areas specifically, would do want to amend broadly? What are the big challenges, except the one of fees? What are the challenges with the current Public Protector Act.

Prof Mmusinyane: I will not say I have any at the moment that I think best requires the portfolio committee to deal with, except that one of funding.

Mr Magwanishe: Okay. How would you deal with the synergy between being the chief investigator and being the executive authority?

Prof Mmusinyane: At the moment, I am Professor of law. I lecture. At the same time, I am in management. So I still do simultaneously these two responsibilities. So it will not necessarily be a shock for me to be the chief investigator and also in executive management at the moment. It is all about, you know, how you organise your work in a timely manner.

Mr Magwanishe: You will be having the executive management under you, but you will be an executive authority.

Prof Mmusinyane: Yes. How will I manage?

Mr Magwanishe: Yes.

Prof Mmusinyane: Like I said, it is not something that is out of the ordinary from what I am already doing. So, there it will be at a high level, where I need, where it is necessary, to delegate, you know, certain responsibilities to my executive management that are in line with the job descriptions, so that I must not be seen to have centralised everything and overburdening me as the chief executive.

Mr Magwanishe: How would you deal with the executive authority/executive management interface?

Prof Mmusinyane: We are guided by prescripts, your policies and the law. And only when there is non-compliance or such, I will not hesitate to take decisive actions, because we are all professionals, we are guided by certain rules and standards, and those are the only ones that best drive everyone to do their job.

Mr Magwanishe: Thank you, Prof. Thank you, Chair.

Chairperson: Thank you very much, Hon Magwanishe. Hon Dyantyi?

Mr Dyantyi: Yes, thank you, Chair. Mr Mmusinyane.

Prof Mmusinyane: Sir.

Mr Dyantyi: You good?

Prof Mmusinyane: I am good.

Mr Dyantyi: Okay, just a few issues to raise. I want to pick up first from what my colleague, Hon Horn, has identified; just to be in line with that. Firstly, what is your understanding of the mandate of the Public Protector? What is the actual mandate of the Public Protector?

Prof Mmusinyane: The mandate of the Public Protector is in terms of Section 182: to investigate conduct in public administration, and in all spheres of government that may result in impropriety or potential prejudice. Once the investigation is done, it is now to report on those conducts. Once that has been done, to take remedial actions in as far as that is concerned. That is exactly the mandate of the Public Protector.

Mr Dyantyi: So that is the mandate?

Prof Mmusinyane: Yes.

Mr Dyantyi: You do agree with me that in the mandate that you have just run through with me, there is nothing that is policymaking in that?

Prof Mmusinyane: Correct.

Mr Dyantyi: Is that correct? You agree?

Prof Mmusinyane: Correct.

Mr Dyantyi: Now, when you were asked about what you would do, you proposed a wholesale policy review, basically for the country.

Prof Mmusinyane: Yes.

Mr Dyantyi: That if you had to be appointed as a new Public Protector, that is what you would do. And you start from (a) to (i) in terms of the areas that you have raised. Why did you do that? You did not think that is the role for someone else and not the Public Protector, because you seem to understand the mandate of his Office?

Prof Mmusinyane: I will disagree with you in that context, to say that in as much as it is policy, it is how that policy that has been implemented that may result in incompetence, maladministration, corruption, lack of consequence management; that in so doing, I will not necessarily use to say that is a policy review, but rather undertake that route of investigation. And using Section 195 as well as a supplement to that effect. So it does not necessarily say that the manner in which I am doing it is narrowly a policy review, but actually identify something that Parliament has not taken heed of.

Mr Dyantyi: Okay, let us pause there. So in that review, would I be correct that it would be better that you would identify this need for review, and you would ask the relevant authority to do that review? Would that be correct – and not the Public Protector?

Prof Mmusinyane: For example, I will take the SAA, that ‘National Treasury, you gave a bailout to the SAA in this kind of amounts'. Provide me with measures that you have put in place how this bailout has worked out; how it has been implemented; how have you monitored; and what is the value for money that you have got from it.’

Mr Dyantyi: Have you read the judgment on the CIEX matter – the South African Reserve Bank?

Prof Mmusinyane: Correct.

Mr Dyantyi: So, what did the court find against the Public Protector there in relation to the remedial action that the Public Protector wanted Parliament to do?

Prof Mmusinyane: Remember, what the Public Protector wanted to do there was to instruct Parliament to amend the Constitution and even also to consider the mandate of the Reserve Bank.

Mr Dyantyi: How would that be different from you doing [a] policy review?

Prof Mmusinyane: Like I said, you need to contextualise what I am saying to say that I need to just pick one bailout, South African Airways, and ask National Treasury that ‘You have paid or you have given the SAA so much of billions. I want you to provide me with the report, in as far as whether the money that was provided for is value for money.’

Mr Dyantyi: Okay, let us pause there. You are Professor?

Prof Mmusinyane: Correct.

Mr Dyantyi: In which field or department are you a Professor, public or private law?

Prof Mmusinyane: My interest is in public law.

Mr Dyantyi: Public law?

Prof Mmusinyane: Yes.

Mr Dyantyi: Thank you. Chairperson, I pause there.

Chairperson: You pause there?

Mr Dyantyi: Thank you.

Chairperson: Thank you very much. I just want to check is deputy director the equivalent of a deputy dean?

Prof Mmusinyane: No, no, no.

Chairperson: What is the difference between the two?

Prof Mmusinyane: It is the deputy director, and then I have my director, Mr Maselo, and the deputy dean and then the executive dean. So it is lower in the fourth level of authority.

Chairperson: No, I had to ask that because during our time we never had something like this. Okay, last time you were here in 2016, is it not?

Prof Mmusinyane: No, my CV never even reached you.

Chairperson: Oh, is it?

Prof Mmusinyane: Yes, I only saw it on Corruption Watch. But it was never even on the final list of candidates who applied.

Chairperson: Oh, okay. It is just that I saw your name coming up in Google. No, thank you very much. I think we have come to the end of the interview and we thank you that you avail yourself and you are able to share your experiences with us. We wish you well as you take your journey back home. Thank you so much. The team will escort you out and then escort another candidate. In the meantime colleagues, I think we can take a few minutes break because the other candidate is coming at half past, which means that we have the whole seven minutes to ourselves.

The Committee adjourned for a short break.

Chairperson: Colleagues, let me welcome Adv Kholeka Gcaleka. Good afternoon. How are you, Ma’am?

Adv Kholeka Gcaleka (Acting Public Protector): Good afternoon, Chairperson. And good afternoon to the Hon panel members. I am very well, thank you.

Chairperson: Good. Thank you very much. We wish to thank you for accepting the invitation to come and have these interviews with the colleagues. How we do it, we afford the candidate five minutes to state why he or she should be considered for nomination as a Public Protector. You are already [the] Deputy Public Protector, [and] Acting Public Protector. So we are aware of that. And after that we will then come back to confirm the disclosures that you have made in the questionnaire and check if there is anything else that you want to disclose. Let us start with the five minute's presentation. And the five minutes starts now. Over to you, Deputy Public Protector.

Adv Gcaleka: Thank you. Thank you, Hon Chair. Good afternoon once more to the Hon panel members. As per my CV, I have an LLB degree. I have a masters in commercial law. And I am currently developing myself in the field of cybersecurity governance. This is because of my passion around the area of cybersecurity governance. I started off my career in the National Prosecuting Authority. I think the highlight of my career in the NPA was serving the members of the public. I started off as a trainee prosecutor, however, I managed a court where I dealt mostly with matters of domestic violence. And that has been where I learned on the plight of the people, particularly those of women within our country. I went on to prosecute in the Regional Court, where there too I was a specialist prosecutor in sexual offences. And at times, I would also do matters of fraud within the court. What was more peculiar was also being able to pick up some of the economic factors which affect our countries. I also prosecuted in the western area, which indeed, today, we still find ourselves under the same challenges of illegal mining in our country. I personally prosecuted those matters, and also had taken the opportunity to go down into the mines, and see the conditions under which the illegal miners live. And thereon also we had discovered that some of these illegal miners were trafficked into the country. It is still the major challenges that our country is going through. As a result in my current acting position, I have also engaged the ombudsman of Lesotho to discuss the circumstances around this and see how we can assist one another, to resolve at least the administrative challenges that permit this kind of movement between our two countries. I then moved on to prosecuting the High Court. There I had extensive exposure, not just in the criminal court, but also in the motion court. And also the time I left the NPA, I was the senior deputy director of public prosecutions. But I still maintained prosecuting because litigation was my passion. That really exposed me at a higher level on legal work, drafting not just matters for the high court, but for the Supreme Court of Appeal and the Constitutional Court. When my colleagues were appearing, I would be the check-in officer in respect of those matters. That has then equipped me for the further roles which I took of a deeper understanding of the law, but also on the challenges that are faced by the people of South Africa. I took up the position of being an advisor for which I had been an advisor to two different Ministers, advising on the law, on governance, and administration. In that position, it actually exposed me to the work of the executive authority. I was basically the sole advisor in respect of those issues, and had to abreast myself on deeper matters regarding the governance in our country. I worked in the Department of Home Affairs, as well as Finance and the Department of Public Service and Administration. There was a period through which I also conducted some workshops regarding gender-based violence, assisting the Department of Community Safety in Gauteng, but also served on the committee that looked into the state of municipalities in Gauteng, which gave me further exposure in the state of governance within the municipalities, particularly in the metros of this country. I then moved as Deputy Public Protector, a position I still hold an honor dearly, where I then worked in the Office of the Public Protector as a deputy. There I was exposed to the governance and operations of the Office of the Public Protector. I was also exposed to Acting as the Public Protector in 2021. I was able to release reports, about fourteen reports of my own accord. But also it gave me the opportunity to know the institution deeper to understand the people behind the work of the Public Protector. Furthermore, on the unfaithful night of the ninth of June, I was bestowed with Acting as Public Protector to date. Unlike other people who would arrive at the Office of the Public Protector with a plan, having had the opportunity to probably put together a vision, I did not have that. I had to dive in and take charge and lead during a huge crisis that befell the Office of the Public Protector and be able to instill confidence into the staff of the Public Protector. On the first day, I held a staff meeting… [Livestream interrupted for twenty seconds]. What is critical on the work that we have done, we have managed to finalise the analysis of jurisprudence that has shaped our mandate to date. And we have accordingly also looked into the developments within our country which affect the Public Protector Act. And we have finalised and submitted our proposed amendments to the Department of Justice. And further to that, we have also made some policy changes within the institution to ensure that we strengthen quality assurance, we strengthen our investigations, and we are in line with the law which has been set even by the highest court, and that at least we move towards being fit for purpose as an institution. But most importantly, Chair, I am really heartened by the observations of the Constitutional Court, in the recent judgment regarding the suspension of the Public Protector, where the court observed that on the basis of the affidavit that I had submitted to the Western Cape High Court, that the institution actually seems to be conducting its core business well.

Chairperson: Thank you so much. And do you confirm that the disclosures you made in the questionnaire? Sorry, do you confirm the disclosures you made in the questionnaire?

Adv Gcaleka: I confirm, Chairperson.

Chairperson: Is there anything else you want to disclose or explain?

Adv Gcaleka: Nothing further, Chairperson. Thank you.

Chairperson: Thank you. Under what circumstances does the acting terminate?

Adv Gcaleka: It terminates under the circumstances that there is a permanent Public Protector.

Chairperson: So until this Committee and the President… Let me say until the President fills the position?

Adv Gcaleka: Indeed, Chairperson.

Chairperson: Thank you. Alright, so you will have the opportunity with the colleagues. So they each have seven minutes with you. Sorry… Please, do not say that because there are two Members who are owing me two minutes. So it is an opportunity to deduct those minutes. Okay, now I start the eight minutes. In the eight minutes, it is a two way conversation, right? I am not going to interrupt. Right, I start with Hon… Who do I start with? I start with Hon Tlhape.

Ms Tlhape: No, thank you, Chair. Thanks for the honour. Good afternoon, Adv Gcaleka.

Adv Gcaleka: Good afternoon, Hon Tlhape.

Ms Tlhape: Yes, let us go to your questionnaire. You have identified lack of economic growth as one of the key challenges inhibiting growth of our economy. What are the main reasons for this lack of growth in the economy? And what, in your opinion, should the role of the PP be in ensuring inclusive economic growth?

Adv Gcaleka: Hon Tlhape, I just want to start on the substantiated facts. The IMF (International Monetary Fund) releases its statement consistently on the country, upon assessing the country. And part of the statement reflects that the government fails to implement governance reforms. And as a result, the systems remain vulnerable to corruption. Now, that is one of the main factors. But as a country, we have an historical background of poverty [and] inequality. Therefore, those are some of the factors that have contributed. But most importantly, we come from a state of COVID-19, which also had a huge bearing on unemployment, on inequality, on poverty within our country. Therefore, for me, those are the main factors that really affect the growth of our economy. The Office of the Public Protector is very clear in line with its mandate, that [it] is to investigate maladministration. So in addressing the issues of corruption, the maladministration that gives rise to the corruption within our country, and the powers that we have, if, at least, [the] government would cooperate in regards to the implementation of the remedial action, because most of our remedial actions are reformative. For instance, if you look at the non-implementation of the Financial Action Task Force recommendations which resulted in the country being grey-listed, those are part of the factors that actually resulted in the low or close to none growth in the economy. Now, this is also supporting the fact that governance reforms are not being implemented, not just those of the Public Protector.

Ms Tlhape: Thank you. Sorry, to interject. Thank you. We have some few questions. We just have eight minutes between us. Now, in your opening remarks, you touched on being exposed to the socio-economic issues of our people. What in your view, is the reason for the rising cost of living? And what measures should be employed to cap this?

Adv Gcaleka: Obviously, when there is low economic growth, there would be a rise in the cost of living. For instance, the inflation rate would go higher. Also, the unemployment and the other factors, which I have mentioned.

Ms Tlhape: Advocate, rationality, reasonableness and proportionality are critical legal principles that impact on legality. What is your understanding of testing rationality, reasonableness, and proportionality? And you can give examples.

Adv Gcaleka: When applying discretion, the principle of legality applies. And therefore, in doing so, this principle is actually a constitutional control to ensure that functionaries exercise public power in a manner that is procedurally fair, in a manner that is reasonable, and in a manner that it is legal to ensure that it does not abuse its power, and also [that] it does not infringe upon rights. Now, we have had several judgments as the Office of the Public Protector against us in this respect. And in one of them in the matter of Mbina Mthembu v Public Protector, the principle of legality also came up where the court found that we have to show that there was irrationality and disproportionality in the exercise of the public power. But [to] further that, in the matter of the South African Reserve Bank, the issue of the manner in which the Public Protector exercised her discretionary powers came up. And the court said if the discretion is exercised in a true form, the courts would not willy-nilly interfere with that discretion. And furthermore, that if you can prove that the options that you have opted for a legally permissible actions; so basically, this is a constitutional imperative that is there to protect those against the abuse of public power.

Ms Tlhape: Advocate, the Public Protector Act, bestows powers to the Public Protector to delegate certain responsibilities to the Deputy Public Protector. What role will you delegate to your deputy if you are appointed? And do you think the deputies are given sufficient functions?

Adv Gcaleka: First and foremost, let me refer to the Public Protector in that respect. It says that the Public Protector will be assisted by the Deputy Public Protector in staffing the Office of the Public Protector. And further that in exercising the powers, the Public Protector must ensure that it sets steps which are necessary to ensure that the Public Protector is independent, that it exercises its power impartially, justly but also that it is able to conduct proper investigations. Now in delegating powers to the Deputy Public Protector. Firstly, for me, and if you look at the Kader Asmal report, it is an internal governance issues, where you have to assess the work of the institution. Secondly, the exposure of the Deputy Public Protector: what are they exposed to, what is their experience, but also what is their interest, so that also you help them in their interest. So I would delegate most of the powers to the Deputy Public Protector but also I would ensure because we put standard operating procedures and guidelines of investigations, but the line of governance matters within the institution. So I would ensure that besides what would be delegated to the Deputy Public Protector, in line with their expertise at the time, whilst they are abreasting themselves of the operations and the governance of the institutions, but I would expose them to the entire work of the institution that comes through to the Public Protector because it is important that we realise what is envisaged in the Public Protector Act that the Public Protector must be assisted by the Deputy Public Protector and there is no limitations in respect of that. And that is also to ensure independence, it is to ensure impartiality, but most importantly, that it is another eye at that level that is able to look into the matter before the Public Protector does.

Ms Tlhape: On our last minute. How will you position the PPSA to enhance the oversight and legislative mandate of Parliament?

Adv Gcaleka: What is critical, you know, it is something that we have actually discussed as an institution, is the issue of data and analytics, which we currently lack, but we are working on and we are trying to get it internally. Firstly, SALGA (South African Local Government Association) produces data on public protests, for instance, throughout the municipal areas. And also the Statistician-General releases data, you know, in respect of the state of the country. Now, it is important to look at those vis-à-vis the petitions that go through to Parliament as well as the legislature to look into whether there is a correlation between the start and the petitions that are being received and whether they are being dealt with timelessly and so forth; and whether they are not the ones which lead to some of the decisions, which leads into protests, but also to ensure that we are able to have that constant oversight in Parliament and be proactive, rather than reactive role that we currently play.

Chairperson: Thank you.

Ms Tlhape: Thank you, Chair.

Chairperson: Thank you so much. Adv Breytenbach?

Adv Breytenbach: Thank you, Chair. Good afternoon, Ms Gcaleka.

Adv Gcaleka: Good afternoon, Hon Breytenbach.

Adv Breytenbach: Mr Chair, I declare upfront that I know the candidate in as much as we were both were employed at the National Prosecuting Authority at the same time, or our times there overlapped. And I have had certain dealings with her at the Public Protector’s Office. I do not believe that I am biased one way or the other.

Chairperson: Thank you.

Adv Breytenbach: In your view, what are the two most important characteristics of a Public Protector?

Adv Gcaleka: A Public Protector must have a judicious temperament. They must be utmostly honest. They must have integrity.

Adv Breytenbach: Okay, thank you. Now, let us deal with the National Prosecuting Authority history first. To the best of my recollection, you were the chairperson of the Prosecutors Association, during the tenure of, amongst others, Menzi Simelane?

Adv Gcaleka: Indeed.

Adv Breytenbach: And the Association under your leadership and I believe you, yourself, were quite vocally supportive of Simelane?

Adv Gcaleka: I was supportive of the transformation agenda, which he stood for. It is an agenda I still support, even in the Office of the Public Protector. It is an agenda that I stood by even then. Any form of racism, whether it is against any other race against the other, I will stand against and I would support anyone in that aspect. And I have done so even where I am today.

Adv Breytenbach: Okay, that is neatly deflected, but that was not his only agenda, and we both know it – and everyone else in this room knows it. His agenda and his legacy at the NPA…

Chairperson: Sorry, but he is not here to defend himself.

Adv Breytenbach: Simelane?

Chairperson: Are you referring to Simelane?

Adv Breytenbach: I am talking about Menzi Simelane. And he does not need to be here to defend himself. He has been found not fit and proper in a court of law.

Chairperson: No, but I am saying before you is the candidate. Go ahead.

Adv Breytenbach: Yes. No, no. So Simelane was found by a court to not be fit and proper, and his agenda at the NPA was one of destruction, and we are both aware of that. So his agenda was not only transformation. And my interest is more in your support of his other agenda.

Adv Gcaleka: I could not have been in support of any other agenda – at the time I did not serve on the Exco of the National Prosecuting Authority. I was not part of any decision making of the National Prosecuting Authority. I had no idea of any of his other agendas. I did not know Adv Simelane from a personal perspective, I only knew him as the National Director of Public Prosecutions. And my engagements with him were in meetings in office meetings and regarding challenges that we had at the South Gauteng Division regarding racism and issues of transformation, in particular.

Adv Breytenbach: His agenda to disband specialist units and scatter specialist skills to the far corners of the Earth, you had no difficulty with that and neither did the organisation that you chaired.

Adv Gcaleka: I was not part of any of the decisions that Adv Simelane embarked on. We were not consulted, as the Society of State Advocates regarding the decisions that Adv Simelane had embarked on. And as an Association, and you might be well aware of [this], Hon Breytenbach, is that you act on the mandate of your members.

Adv Breytenbach: Neither did yourself or the Association have anything to say about Jiba, who was similarly found to be not fit and proper.

Adv Gcaleka: I was not the chairperson of the Society of State Advocates at the time. I had my own challenges at the National Prosecuting [Authority] at the time, which arose from my initiation of the prosecution of Mr Richard Mdluli.

Adv Breytenbach: Quite. So that has been gotten of the way. What is your understanding to the extent to which an administrative decision is susceptible to review under the South African constitutional order?

Adv Gcaleka: Well, the decision is susceptible to review. Once more, I will reflect on the principle of legality, particularly that of the Public Protector, because firstly, the Public Protector has to establish jurisdiction and thereafter apply its discretion. Now, the discretion needs to be in line with what is envisaged in the Constitution; it needs to be applied in a manner, as I have stated, that is just, that is reasonable and that is in line with the law. The Constitution is the supreme law of the country, so every decision that is being taken, it must be in line with the supremacy of the Constitution, as well; even if it is in line with the law, that law must be in line with the Constitution because it must ensure that there is fairness, there is equality in the execution of this particular decision, and it does not infringe on any other rights.

Adv Breytenbach: Okay, thank you. I must ask you to try and be brief because we only have a short period of time. From where does the court derive its powers to review administrative action?

Adv Gcaleka: Administrative action, it derives from PAJA.

Adv Breytenbach: In your questionnaire – I do not know if you have one with you? – on page nine, under the heading ‘redress’. You said that ‘As the Public Protector, one of my priorities will be to continue to monitor the implementation of our remedial action. As I have already begun engaging the Presidency and the Speaker of the National Assembly to provide periodic implementation reports to the Public Protector.’ Can you just expand on that, please.

Adv Gcaleka: The Zondo Commission derives from the remedial action of the Public Protector under the leadership of Adv Madonsela. Part of the remedies was the President should set up a commission of inquiry to further investigate the matters that the Public Protector had sort of made preliminary views on because she could not continue with further investigation because of a lack of resources. So therefore, the Zondo Commission is a remedial action of the Public Protector. And we believe that it rests upon us to then follow up on the implementation, seeing that the Zondo Commission was a mere Commission and it ceased existence at the time when the Commission finished its work.

Adv Breytenbach: Thank you, Chair. I am done.

Chairperson: Thank you very much. The next person is Hon Maotwe.

Ms Maotwe: Thank you, Chair. Good afternoon, Ma’am.

Adv Gcaleka: Good afternoon, Hon Maotwe.

Ms Maotwe: How are you?

Adv Gcaleka: I am very well, thank you. And how do you do?

Ms Maotwe: Good. So we have seen that you were elected as a leader of one of the organs of the ANC at some point, and you also served in the Office of the Minister of Home Affairs and Treasury in the political office. How up to date is your membership of the ANC?

Adv Gcaleka: I possess no membership of the ANC [or] of any other political party.

Ms Maotwe: Since when?

Adv Gcaleka: I think it is about a decade now.

Ms Maotwe: Okay. And then we have seen reports last week from the South African Reserve Bank that says that at their disposal there is no transaction that they can find with Phala Phala farm. Your report, page eleven of your final report and 241, says that (and I quote)... You suggested that the R10 million located at Ntaba Nyoni farm is from a ‘private cash transaction.’ Do you still stand by that?

Adv Gcaleka: The report by the Reserve Bank is that there was no concluded sale between the buyer and the seller. Our report in our investigations did not investigate the sale because we do not have the powers to do so. It is a private matter that does not fall within the ambit of the Public Protector. Our role in our mandate is to investigate state affairs.

Ms Maotwe: But you said it emanates from a private cash transaction. I am asking do you still stand by that?

Adv Gcaleka: Yes, I stand by it because we did not say it is a sale. We did not confirm that there was a legal sale, which took place. We worked on what was before us. Ours was to deal with the issues that involve public administration, and which were also regulated in terms of the Executive Ethics Members Act, and not the sale or to confirm whether there was a sale or not, and whether the sale took the form of being perfected or finalised. That was not in our mandate, and it is not what we investigated.

Ms Maotwe: I will come to the ethics question later. Where were you born?

Adv Gcaleka: I was born in Johannesburg.

Ms Maotwe: And KZN (KwaZulu-Natal)?

Adv Gcaleka: My home is in KZN, previously the Eastern Cape, but it was then re-demarcated into KwaZulu-Natal.

Ms Maotwe: So before you were appointed as the advisor of the former Minister of Home Affairs, there is s security screening that was done and you failed it the first time around, why?

Adv Gcaleka: Security?

Ms Maotwe: Clearance or security screening.

Adv Gcaleka: I have never failed a security screening.

Ms Maotwe: Okay. What is your interpretation of the term ‘ethics’? You spoke about it earlier on.

Adv Gcaleka: The interpretation of the term ethics, basically, is the character of one. The exercise that they would perform and how they would perform it, which would have to be moral; even if there is no regulation in that regard, one would have to do what is right. What might not be necessarily regulated by law, but it is right in terms of public morals, the society in which we are in and in good faith.

Ms Maotwe: Do you think that you are an ethical person?

Adv Gcaleka: Indeed, I am.

Ms Maotwe: Why? What makes you think that?

Adv Gcaleka: I believe I am an ethical person, because that is how I conduct myself, that is my characteristic as a human being, and that is how I have performed my duties from the first day I was employed to date.

Ms Maotwe: Would you consider an ethical conduct in a situation where you abruptly terminate your funding for the Public Protector?

Adv Gcaleka: Would you kindly elaborate on that? Terminate the finding in which sense?

Ms Maotwe: So you terminated your finding towards the legal fees of the Public Protector. Would you consider that an ethical conduct?

Adv Gcaleka: Of course, yes. It is in line with the Constitution. As a person who is vested with the exercise of public power, Section 195 of the Constitution state[s] that I need to do so in a manner that is economical, that is efficient and effective. And having done that it is in line with the Constitution. It is in line with my roles and responsibilities as the executive authority or accounting authority of Public Protector, South Africa, where I have to take in line, have oversight over governance and the finances of the Public Protector, and act in the best interest of the institution in line with what is budgeted for and what the institution can afford.

Ms Maotwe: Do you believe you are equipped to execute the responsibilities of the Office of the Public Protector in strict adherence to the law?

Adv Gcaleka: Having acted in this position and having been the Deputy Public Protector, I have been with the Office for over three and a half years. Indeed, I believe so. I have done so with the collective that I lead and we have done so to the best of our abilities in line with the law and other legal transcripts and we have done so ethically and with integrity.

Ms Maotwe: Does [it] include [the] submission of reports on time?

Adv Gcaleka: [The] submission of reports is in line, firstly, with the capacity and the capability of the institution; looking into the complexity of the particular matter, but of course, looking into the legal prescripts which are applicable to that matter, and whether there is adherence to the investigation plan and so forth. So, it is a multi facet of issues that one has to look into. And where one is unable to submit a report on time, one follows the applicable prescripts of what needs to be done in such instances.

Ms Maotwe: How long did it take you to release the Phala Phala report?

Adv Gcaleka: It took us a year to release the Phala Phala report.

Ms Maotwe: Why?

Adv Gcaleka: First and foremost, if you would go back, even into the presentation that Adv Mkhwebane had done to the Cabinet, where she stated very clearly that because of the resources, human resources and the financial resources, of the Public Protector, the Public Protector was unable to conclude EMEA matters within the thirty day period. However, it is not illegal not to conclude within the thirty day period, because the Act makes further provision that where the Public Protector is unable to conclude within thirty days, they must then report to the next level. If it is the President, we report it to the Speaker, even though there is no provision for that within EMEA. And therefore, there was no law that was infringed. And furthermore, there has not been a single EMEA case by the Public Protector that has been concluded within thirty days. If you look into the precedent, in fact, Phala Phala is one of the matters, which was concluded speedily within the resources that we had; looking into complexity of the matter, the amount of evidence that we had to accumulate into the matter.

Ms Maotwe: Okay, I am running out of time. I want to move to the next question.

Adv Gcaleka: I just wanted to adequately answer your question Hon [Maotwe].

Ms Maotwe: You can ask [the] Chairperson to give more time, but I do not have time. So what is your interpretation of Section 96 (2) of the Constitution, which relates to the members of the Cabinet?

Adv Gcaleka: It is that we need to ensure… We are also vested with that particular section in our investigations. We need to ensure that members of the Cabinet conduct themselves ethically.

Ms Maotwe: Including the President?

Adv Gcaleka: Including the President.

Ms Maotwe: Yes, continue.

Adv Gcaleka: Ethically in exercising their public power and duties.

Ms Maotwe: And that they cannot undertake any other paid work?

Adv Gcaleka: Indeed so, the Constitution states so and so does the Act; they cannot undertake any paid work.

Ms Maotwe: What is your comment on the Phala Phala one where the President, himself, said the money was stolen from his farm?

Adv Gcaleka: Honourable, if you look at case law that is there. I will make an example, with the case of the former Premier of the Western Cape, Zille, where the Court said: when conducting an investigation where statements have been made, it needs to be contextualised. You need to look into what would be a reasonable person with an ordinary intellectual mind, so not just – there must be an ordinary intellect. How would they interpret that? Now, as an investigation authority or body, we had to conduct investigations, look into the total circumstances, look into the law, and then come up with what had taken place; would that be described as paid work or not? And we came to the conclusion that it is, in fact, a financial interest and not paid work.

Ms Maotwe: And you still stand by that, that it is just a financial transaction.

Adv Gcaleka: Indeed.

Ms Maotwe: No further questions.

Chairperson: Thank you very much, Hon Maotwe. Inkosi Buthelezi? Over to you, Ndabezitha.

Inkosi Buthelezi: Thank you, Chair. Greetings, advocate.

Adv Gcaleka: Greetings, Hon Buthelezi.

Inkosi Buthelezi: I have a few questions for you, and my questions are very brief, and I expect such answers. In your position as the Deputy Public Protector what gaps have you identified in the management of the Office, and what limitations it will face which restricted you from addressing those gaps? If you are now given an opportunity to serve as the Public Protector, what will you do to address those?

Adv Gcaleka: First and foremost, the gaps that I identified is that there was no flow in [the] relationship. There was no collegial relationship between the Public Protector – and this is now the private office that I am speaking about, not just the individual – and the institution. Secondly, the gaps that I identified is that the institution was not doing continuous reviews on itself, as a legal institution. and the third gap, amongst many others, was that there was no culture of learning, training and development within [the] institution. The limitations that I faced as the Deputy Public Protector, first and foremost, is that I was not the final decision maker on the issues. I did do an assessment, I identified the gaps, and I brought those to the attention of the Public Protector. Now, what I have already done as the Acting Public Protector, is that first and foremost, even at the time when I was acting, I had purchased books for the library, both e-books, and books that would be at the library to ensure that at least we develop some culture of learning within the institution. But secondly, what I have done now during my acting period, was to ensure that we refresh and upskill our research and library capacity, which the University of KwaZulu-Natal has assisted us with. And what I have further done, I have inculcated the culture of the NPA, where there is really no barrier between the head of the institution and the staff.

Inkosi Buthelezi: Okay.

Adv Gcaleka: And open argument and discussions on legal aspects.

Inkosi Buthelezi. Okay. Okay, what do you consider as your greatest regret in the course of executing your duties that you will try to avoid in the future?

Adv Gcaleka: Impatience. Coming from the outside and when you go into an institution, you go in with assumptions that you expect the institution to be at a certain level, and therefore, things are supposed to flow at a certain level. And therefore, I became a little bit impatient, particularly in my first year at the Public Protector. But I must say I have grown immensely, and I have learned to walk with the team and even the slowest member of the team and be able to lift them up to be at the level of, at least, the middle member of the team.

Inkosi Buthelezi: Do you consider yourself a very strong leader [and] not easily influenced? If that is the case, can you make reference to a particular instance where this has been proven?

Adv Gcaleka: Indeed, I am a strong leader because I believe in collaborative leadership: I do not lead alone. The instance where this has happened, it was when there was a political march to the Office of the Public Protector, led by the Economic Freedom Front.

Ms Maotwe: Freedom Fighters.

Adv Gcaleka: Freedom Fighters, apologies.

Ms Maotwe: We have nothing to do with [the] Front, please.

Adv Gcaleka: Economic Freedom Fighters together with other parties in Parliament. In that instance, I had to take the frontline.

Inkosi Buthelezi: Okay.

Adv Gcaleka: I had to be able to be resilient and to be courageous to ensure that the institution stands by its independence; it stands by its impartiality; and it does its work without any fear, favor or prejudice.

Inkosi Buthelezi: Okay. You have made reference to working in a collective, I think twice. What value do you think is derived from snitchism?

Adv Gcaleka: What value is derived from there, first and foremost, is extensive and proper investigations in respect of our work, but also you minimise the risks of mistakes. But looking at the history of our institution, is that you build confidence. You build teamwork. You build courage amongst your team members, but most importantly, you inculcate the culture of independence and impartiality because there are sufficient checks and balances and due diligence and peer review that takes place.

Inkosi Buthelezi: Okay, my last question, Chair. Having served alongside the outgoing Public Protector and experiencing, first hand, the impact of [the] Section 194 Inquiry and the public perception and trust in the impartiality of the Office, how would you work to restore the trust of the Office, should you be appointed?

Adv Gcaleka: What is critical is… I am going to refer back to Section 3 of the Public Protector Act. What is envisaged is that the Public Protector shall not work alone. The Public Protector must work with the team that is there, both in core business as well as administratively. But secondly, is that the Public Protector must ensure that there are necessary steps that are put in place to ensure that the work of the institution is shielded; there is independence, there is impartiality, and it is done so without any fear or favor. But most importantly, I would go back to the Mail & Guardian case, you know, which was confirmed by the case of the Minister of Agriculture and Fisheries, that you need to stick to investigative methodology when it comes to investigations. Investigations have to be done thoroughly. There has to be checks and balances [in] investigations. You need to do your work with an open mind. But also recently, as the Constitutional Court said, you must not approach your work with any suspicion. As the Office of the Public Protector, apply the principles and the values of the Constitution of treating every person equally when they come before you and treating every matter as such. But most importantly, it is to build a strong team that would even protect you when you are not looking; that will even be able to pick up the blind spots from you as a leader. But my philosophy is that when somebody walks into a room and we are busy with quality assurance, they must not be able to pick up who is the leader here, but they must be able to pick up that there is a group of investigators who are vigorously critiquing one another's work to come up with sustainable solutions.

Inkosi Buthelezi: Thank you, Chair. I left no minute for anyone.

Chairperson: Thank you very much. Oh, it is Hon Tlhape.

Ms Tlhape: I am done.

Chairperson: Oh, you are done? Hon Lesoma?

Ms Lesoma: Let me not make that thing. But nevertheless, Chair. Good afternoon, advocate.

Adv Gcaleka: Good afternoon, Hon Member.

Ms Lesoma: Thank you. Earlier on when you were responding to one of my colleague’s question[s], it was around transformation. Is transformation limited to warm bodies and faces, in your own understanding and perception?

Adv Gcaleka: Not at all, transformation goes as far as systems. Transformation goes as far as decision-making. And in our instance, it is in respect of our remedial action in that, in the remedial actions that we take, we need to make sure that our remedial actions are transformative and also that they are developmental in nature.

Ms Lesoma: Okay. As an Acting PPSA, are there any highlights of the cases that you would have, in this short space of time, that started to work or you have concluded as a cross-over from an incumbent that you think that are highlights that you can showcase, for example, just give us one, noting that you are working as a collective?

Adv Gcaleka: Indeed, the highlight with the cases that I have worked on was the investigation into the state of the public health care system in South Africa. It was during the high time of COVID-19 in our country. I was acting Public Protector; Adv Mkhwebane was on sabbatical. Together with the team of Public Protector South Africa, we left our homes during [the] hard-lockdown and took the risks to face what was happening within the public health care systems when the media blew the whistle on the conditions under which the doctors were working in, but also the conditions of the patients and the conditions of the hospitals themselves. We were able to quickly produce an intervention report so that, at least, [the] government can start implementing some of the systemic issues that we had picked up at the time, but also most importantly, to try and save lives, particularly those of the health care workers who were saving the lives of the people of South Africa. That for me is a case that really touched me, but also the courage that the Public Protector staff showed by being able to go out there when death was facing them.

Ms Lesoma: Okay. In your response, you spoke to systems. Currently you have a business plan and all that; probably also, you are envisaging, if you are fortunate enough – not lucky – [to] get appointed to this position, what new systems that we employ to ensure that the turnaround, which is cost effective, you will employ ideally?

Adv Gcaleka: We already have the case management system, which actually became into full effect on the first of April this year. That system, indeed, is assisting us and we are continuing to upgrade the system, because this is one thing that we are doing internally, and therefore, it is a work in progress. But the other work that we have done in respect of our systems is also to ensure that our complaints handling is also done and electronically. But further that we have upgraded our complaint forms to be more detailed, so that investigators do not spend much more time locking issues and consulting with complainants. And furthermore, which is important that I would like to raise kindly, Chairperson, is also the reviewing of our assessments. And that we have – I have actually employed a method where our executive managers are the ones who are doing the assessment of the cases, whereas before it was done at a much junior level. This is to mitigate the risk of a matter being investigated over a longer period of time.

Ms Lesoma: Okay, thank you. You are eating my time as well. Thank you very much. You have identified one of the key challenges that there is [a] trust deficit to the PPSA Office, not the individual; and also between [the] government and citizens. What are the basis of this and what becomes the role of the PP in correcting those deficiencies?

Adv Gcaleka: Firstly, as the Public Protector Office, it is important that in the manner in which we take our decisions becomes in a manner that is of integrity; our reports must be reports of integrity. But secondly is that our remedial actions must be implementable. Now that starts with us in the process and the procedure which we apply in arriving at the end in taking the remedial action, that it must be implementable. But in respect of the government, the issue is accountability and responsiveness, and being in touch with the people who have elected the government. We have found that to be a major challenge, and the issues of undue delay in responding to the challenges that the people are raising. And finally, as well, the oversight by the legislature, which is not as effective as it is supposed to be.

Ms Lesoma: Okay, the last one, Chair. In your own view, it has got nothing to do with us – I just want to get your view – in terms of the current government. Did it make a mistake not to do an exodus in terms of the public servants and have the new public servants? Because it seems like it is a cry: that is my view. But I want to get your view, if you serve the current government, as it where, is it fair for public technocrats, as it were? It is the perception that I have.

Adv Gcaleka: Not at all. First and foremost, the country has laws, so every action needs to be in line with the laws as the basic conditions of employment, and there is the Labour Relations Act, within which every government or every individual exercising public power needs to subject themselves with in respect of employees. My view is that employees who work for [the] government are supposed to be professionals, and ethical people who are actually serving the country and the people in the country, but not individuals, not the political dispensation, but who serve in line with the Constitution of the country.

Ms Lesoma: Okay. The AG’s report says that you have overspent in terms of your budget in the year under review. How would you ensure that you change that situation? Thank you, Chair. And I am done.

Adv Gcaleka: Looking at the issues raised by the AG, it is historical issues of the legal fees surrounding the Office of the Public Protector on litigation, but also the cases, but of the litigation of the Public Protector. What we are currently doing: we have reviewed our governance system in our legal department as well as in our finance [department], but also we are ensuring that we are conducting our investigations in such a manner that we prevent the litigation at the scale at which it was at and our reports will be able to defend themselves. Thank you.

Chairperson: Thank you very much. Hon Horn, you are owing me two minutes. It is your payback time.

Mr Horn: No, no, no, I have received another minute, so that would make it nine.

Chairperson: Okay, sure. Back to you.

Mr Horn: Thank you. Good afternoon, Ms Gcaleka.

Adv Gcaleka: Good afternoon, Hon Horn.

Mr Horn: Yes, so when you came to be interviewed as the Deputy Public Protector, we touched base on your period with ex Minister Malusi Gigaba. Since then, we have had the benefit of the Zondo Commission, costing this country a billion Rand, but which favored us with massive amounts of information, amongst others, about your former principal. So I want to revisit your period there and, again, ask you: did you at the time advise the Minister about his close relations with the Guptas and the fact that it exposed him and the country by extension to impropriety – to borrow the words that are used in the Constitution in respect of the Public Protector?

Adv Gcaleka: Hon Horn, at the time, when I was interviewed for the Deputy Public Protector position, I was very clear that at the time when I worked with Mr Gigaba, I had no knowledge of his relationship with the Guptas. During my work with him, I had no knowledge of the Guptas; they have never come to the office. I have never seen them. I had never known of his relationship with them. At the time when the issue came up, it came up in the public. And I asked him about it, and he denied any association with the Gupta family.

Mr Horn: Okay. And looking back [as] a professional special advisor should you have not given the fact that the allegations, at least, were already in the public domain [to] have acted more proactively to protect your Minister?

Adv Gcaleka: In which way, Hon Horn? If you could kindly elaborate – to protect him in which way?

Mr Horn: Well, to protect him against what happened; ultimately, he lost his position in the executive primarily as a consequence of this relationship.

Adv Gcaleka: It is not my duty, particularly as an advisor, to protect a Minister. The duty of the advisor is to advise the Minister in line with his duties in serving the Republic, not on anything personal because an advisor is employed in terms of Section 12 (a) of the Public Service Act. And it is not a personal advisor and the advisor performs their duties in line with the law, in respect of the advice that an advisor would provide to the Minister.

Mr Horn: Okay, I will park that issue. I want to go to your answer around the review of administrative action, specifically in the context of the work of the Public Protector. What interested me is the fact that you said that reasonableness, rationality and proportionality in that context is specifically relevant for the Public Protector Office in the exercise of discretion. Can you explain to us how when you embark on an investigation there is room for you to be confronted with discretion?

Adv Gcaleka: Yes, the Public Protector, for instance, after it has been decided that the Public Protector has jurisdiction in a matter, it then becomes the Public Protector’s discretion on the form that the investigation takes in respect of that matter. For instance, where you have got jurisdiction, and this has been confirmed in the GEMS (Government Employees Medical Scheme) matter, you then have to look into the totality of your matters and say, ‘Are you going to investigate everything that is before you?’ Now, the GEMS judgment actually says that the Public Protector has discretion, for instance, to remit other matters to other public bodies, which have the authority over those matters. And that is…

Mr Horn: Thank you. That is a satisfactory answer. But then once you have embarked on an investigation; you have now exercised your discretion [and you] say, ‘Okay, I am going to take this onboard.’ Where can a discretion then come into play, if at all?

Adv Gcaleka: Once you are investigating your particular matter, now, what comes into play is the legalities that you face within that matter. It is on the methodology on how you apply that particular methodology, which witnesses are relevant and which witnesses are going to assist you in your investigations or any other evidence, which would assist you to come to a final decision, which is in line with the law.

Mr Horn: Is the discretion to this… Is the decision to decide which witnesses are relevant discretionary in nature?

Adv Gcaleka: Well, it is discretionary.

Mr Horn: Are you quite sure?

Adv Gcaleka: Yes.

Mr Horn: Okay. Then I want to come to your Section 196: you have already answered some questions on it. What is the lodestar, the guiding principle now thrashed out by our courts, of the method that is to be used for a proper interpretation of a statute or law?

Adv Gcaleka: The proper interpretation of any statute of the law, firstly, the supreme law of the country is the Constitution. So in interpreting that law, you need to look at what was the object of the Constitution? What is the principle and the values and the spirit of the Constitution in line with the particular law?

Mr Horn: No, maybe we are missing one another. There is a court case of the Supreme Court of Appeal, which has now settled in the constitutional era. What is the approach [of] anyone who interprets a law mistake? What is that case?

Adv Gcaleka: Recently there is the case of the SARS, which the court took in interpretation of the Tax Administration Act.

Mr Horn: Are you aware of Natal Joint Municipal Pension v Endumeni [Municipality]?

Adv Gcaleka: No, I am not aware of that case.

Mr Horn: Okay, so that is actually the case. And the case says that context, you refer to context, must be given by the apparent purpose of a provision. Now that is the purpose behind the provision in Section 196, which says the President and members of the executive cannot have other paid work?

Adv Gcaleka: The purpose for that is to ensure that the duties that the executive undertake become the primary duty and that it is not overweighed by the secondary duty, which is the private interests. And further that there is no risk of a conflict between the primary duty and the personal interest.

Mr Horn: Well, that the members of the executive do not expose themselves to the potential of a risk of conflict of interest.

Adv Gcaleka: Indeed.

Mr Horn: So in your Phala Phala Report, though, that second leg is nowhere to be found. Would you agree? You only say that, ultimately, the financial interests did not distract the President unduly from his primary responsibilities.

Adv Gcaleka: Not at all, Hon Member. We discussed the issue of the conflict of interest in the Phala Phala Report. Now, primarily what we need to look at which we actually have interacted with, which has also been confirmed by the Constitutional Court in the recent case of the suspended Public Protector, whether there is a real risk. Now there must not just be a suspicion or a far-fetched risk or any other potential which is not related on whether there is a real risk of a conflict of interest in a particular matter; and that we have interacted with in our report.

Mr Horn: Okay. Lastly, how many reports have you been in charge of in terms of the investigation and bringing out the report, both as the Deputy and now as acting, which has been finalised?

Adv Gcaleka: Well, I have signed one-hundred and seven reports. I have interacted with more than that. The figures I do not have, but obviously, those were not signed by me.

Mr Horn: Okay, and how many of them have been taken on review?

Adv Gcaleka: We have three.

Mr Horn: And has any of them been finalised yet?

Adv Gcaleka: None of those have been finalised.

Mr Horn: Okay, thank you.

Chairperson: I gave you nine [minutes].

Mr Horn: I took nine.

Chairperson: Sure, you took nine. You are right. Hon Wessels?

Mr Wessels: Thank you, Chairperson. Good afternoon.

Adv Gcaleka: Good afternoon, Honourable.

Mr Wessels: You reflected on your time at the Department of Home Affairs. I want to go back to that as well, but more in general, your time at government departments, especially – it was not very long – but at the DPSA (Department of Public Service and Administration. Given that experience, what would you say is the root cause of the overall lack of service delivery, or, let us say bad public service that we are experiencing?

Adv Gcaleka: Overall, the lack of efficient and effective service delivery, it starts with proper planning. It starts with proper planning from the strategic planning, the implementation of the operational planning, but also in ensuring that services are delivered equitably; but also budgeting in that respect is a challenge; but also the capacity and capability of public officials in understanding where we are as a country and what are the priorities; there is a lot of maladministration that takes place. But systems are just not moving. But also there is a factor that each time when a new Minister is appointed into a department, it is as if it is a totally new administration or it is a totally new department altogether. There is no continuity in terms of [the] execution of responsibilities.

Mr Wessels: You say that one of your priorities currently, and if you are the successful candidate, will be to also focus on institutionalising training at the Public Protector. Is there currently a lack of skilled staff members?

Adv Gcaleka: Indeed, there is inadequacy in terms of skilled staff members and this has been confirmed by an organisational development study which we have done as an institution.

Mr Wessels: Are you under-resourced, understaffed currently as well?

Adv Gcaleka: We are under-resourced both in terms of human resource[s] and financial resources.

Mr Wessels: What have you done during your tenure as Acting Public Protector to make the institution more accessible for the public and for communities?

Adv Gcaleka: I have embarked on intensive stakeholder and outreach programmes, particularly into the rural areas which have no access to the Public Protector in terms of technology. In terms of technology, we have, which is work that actually began before the Public Protector was suspended, but which we completed, where we have got an App where those who have means are able to access the Office of the Public Protector. And next Monday, we will actually be launching our Please Call Me App which will enable those who do not have smart phones, who are underprivileged and do not have the financial resources to exercise and send us a Please Call Me. We have also made use of stakeholders like Amakhosi, so that we are able to access their constituencies. But we have also now approached businesses, for instance, we would want to have a drop box at ShopRite, at Checkers, in any other area, so that when a person goes to town, they are able to file a complaint at that instance and not necessarily look for an Office of the Public Protector.

Mr Wessels: Okay, I am glad you are reflecting on that because if I look at your priority of digitisation and digitalisation and digital transformation, then it feels to me as if you are leaving out the majority of rural South Africans; but even Please Call Me is, in many instances, inaccessible to a large part of our population. And even the dropbox idea, how will you get the Public Protector accessible in those communities: in rural, rural Eastern Cape, rural, rural KwaZulu-Natal, where there is no cell phone signal, no electricity, no Checkers, no ShopRite?

Adv Gcaleka: We actually go to those areas. I have personally been to Ntabankulu (Eastern Cape), where the residences would be transported with a drum from one area to the other. They could not access service delivery, because officials could not access their areas because of a lack of a bridge. We have been there as the Office of the Public Protector. We have been into an area in Umtata, where the roads do not permit for people to walk through those roads, but we have been there. So we have got an outreach program. And our outreach particularly focuses on those areas, indeed, Hon Member, where at times there is no signal and where they are unable to use any other phone. But we are able to go there. But our programme with Amakhosi assists us to be able to access the rurals because we are now planning on having drop boxes at the royal houses where people normally go and they will be able to access that.

Mr Wessels: Do you not also think the lack of confidence is due to the fact that people out there do not always understand? And I do not want to go into the debate that has been had on the Phala Phala Report. But do you really think the people out there understand the reasoning that you are here in very technical legal terms explaining and have explained, but it is not really explained to the person out there – the reasoning?

Adv Gcaleka: We actually do, together with community radio stations, where we go on onto those community radio stations and explain our work in the languages that are understood by the people there. But as well as our pamphlets come in different South African languages, so we are able to have that accessibility with the people of South Africa.

Mr Wessels: One last question, because I think I am out of time. You say that you would prioritise, and you spoke on it earlier, the legislative reform with regards to criminalisation of the non-compliance with remedial action. But do you think that will really address the current non-response to remedial action?

Adv Gcaleka: It is a multi-faceted approach. So we have included that as one of the options. The other option, which we have also included, is for the Speaker of the National Assembly to have some mechanisms in place, so that once we submit the report and outstanding remedial action, that is able to then be filtered down to the Committees, which will enforce their oversight. And that is a process that we are already doing. For instance, now we have been called by the Committee on Education, as well as Sports, to discuss our report with them because of that exercise. But what is most important for us is that from the time when you write an allegation letter to a public official, or a public institution, start to discuss the remedial action in that respect, that should there be such a finding in respect of this Act, this should be the kind of reforms. I must commend the Western Cape Government, as well as the Gauteng Government, in most instances where we actually put in place that mechanism, even before we finalise our report, they would have started to implement the reforms. But also, in the Section 7(9), make sure that your reforms are in line with the powers that the other party is able to exercise when you make that remedial action.

Mr Wessels: Thank you very much. Thank you, Chair.

Chairperson: Thank you very much. Adv Breytenbach will take leave; she has another engagement to attend to.

Adv Breytenbach: Thank you, Chair.

Chairperson: Thank you very much. Alright. So I carry her vote. Right, we go to [Hon] Mananiso.

Ms Mananiso: Thank you, Chairperson. Welcome, advocate.

Adv Gcaleka: Thank you, Hon Member.

Ms Mananiso: My first question is with regards to you, actually, as the Acting PP in terms of the issue of low morale of staff. I want to check with you, what have you done in terms of ensuring that there is team building programs and you keep the morale high of your staff?

Adv Gcaleka: Firstly, when I joined the Office of the Public Protector as the Deputy Public Protector, there was no employee wellness program at the Public Protector. And coming from environments of high stress as a result of the environment itself, being a legal investigative environment, I know that stress is one of the highest triggers within that environment. I immediately made a recommendation to the Public Protector that we need to shift funds and ensure that we have got an employee's wellness program. Now we have taken advantage of that program immediately when I started acting by ensuring that there is an assessment of the environment and the conditions and you are able to assist the employees, particularly those who have been heavily affected by the trauma and the employees are actually making use of that. As we speak, we have the relevant company that is busy doing a psycho-emotional assessment. It has started with the executives; we will that done for the managers and the entire staff, because it is important for us to know what is the state of… what is our psycho-emotional state as an institution, individually, the team and as an entire institution, so that we put in place interventions. We have also done individual interventions for those who have approached the company. We have encouraged people to do so. But we want to have a holistic institutional approach to that, but we want it to be informed by a proper assessment. But most importantly, we promote compassionate leadership, particularly considering the history of the institution and the morale of the institution has increased. The Human Rights Commissioner for Kenya visited us on Tuesday. She actually says this is such a happy institution, having arrived, being received by colleagues, and visited the other areas, which were impromptu visits, by the way. She said ‘This looks like a conducive working environment. The people here look happy.’ And indeed they do. Things have changed at the Office of the Public Protector. As a result, investigators even would argue wanting to have their names on the reports that we are producing. It then shows that the passion has increased, the energy has increased. And they are more than ever dedicated to serve the people of South Africa.

Ms Mananiso: Okay. So I want to give you an opportunity to sell yourself and confirm if you were to be a Public Protector of this country, what are your special projects that you will bring forth in terms of addressing the issue of marginalised and vulnerable groups?

Adv Gcaleka: In the issue of addressing regarding the marginalised and vulnerable groups; first and foremost, is to access them more, to intensify our outreach programs in accessing them more; whether collectively or individually. No, it intensifies that. But also to ensure that the remedial actions that we take are more developmental, in respect of the challenges that they are facing. And by the way, I have already started a systemic investigation, which the team is busy with, that is looking into the systems within our justice system, that are a hindrance in combating and preventing gender-based violence. The other systemic investigation is in respect of our maintenance system as a country. And the other one is in respect of our education system in South Africa, because education, for mostly of those who are disadvantaged, is the gateway to economic liberty.

Ms Mananiso: Okay, you make emphasis on the issue of corruption [and] maladministration. What is your plan for those who [are] repetitive offenders?

Adv Gcaleka: In our research, I mean, a lot of government departments find that we have done reports previously, but they continue to do the same act. The plan there, again, we have put it in our proposals for the amendment of the Public Protector Act that we actually regard it as a contempt of the Public Protector, when an individual or a public official does not implement the remedial actions of the Public Protector, because if you actually implement the remedial action, you are able to curb the maladministration. So that is the first one. But the second one is to work very closely with the legislature so that they optimally implement their oversight over the executive.

Ms Mananiso: Okay, I want to check your understanding in terms of civic education, because all of you who came before us, you are telling us about awareness programs, and things that you will bring forth in terms of people to know what is the work of the PPSA, however, nobody speaks about educating, educating, educating the society. So what is it that you can bring on that aspect?

Adv Gcaleka: In fact, we are starting off a program. We have met with the Black Lawyers Association, we have met with SAWLA (South African Women Lawyers Association) and we have also had discussions with the Faculty of Law in Unisa. And we are planning to expand this so that we are able to use people who are skilled on issues of rights, accessibility of the state, accessibility of us as the Office of the Public Protector. But because we have got limited resources, the issue of using the law clinics of universities as a form of education and workshops in communities, because we would like to focus on people who actually live in those communities, who will be able to spend much greater time with those communities in respect of education.

Ms Mananiso: Okay. On the issue of Chapter Nine Institutions, right. What is it that you think… It is a problem that all Chapter Nine Institutions are not responsive to issues [as they are] supposed to [be]. What needs to be done?

Adv Gcaleka: The issue is the issue of capacity. I do not think it is necessarily not being responsive. Chapter Nine Institutions are responsive but because of the financial capacity as well as the human resource capacity, we are unable to be as speedy in terms of our response as we would like to be. But actually, Chapter Nine Institutions are supposed to be reactive. So what does that require out of all of us? It is a better collaborative work amongst ourselves, civil society, business and government to ensure that we are able to pick up on the issues, even before they are reported to us.

Ms Mananiso: Okay, my last question before the Chair takes over. No, I am within my timeframe. With your understanding, I want you to take us in confidence on the issue of conflict resolution and conflict management and bringing along the aspect of mediation.

Adv Gcaleka: Firstly, I will start with conflict resolution. Conflict resolution is where you deal with the issues systemically; you want to discover what is the root cause of that particular issue because the aim is to resolve it. Now, mediation is part of the mechanisms for conflict resolution, because you need to ensure that you bring together both parties. And the one who is mediating you are impartial in respect of the issue concerned and you are able to facilitate the mediation. But there must be harmony amongst the parties. You must ensure that they do reach consensus and there is no party that walks away aggrieved, so that you ensure that the issue is being resolved and not just managed in the instance of conflict management. Now, conflict management is where you put in place mechanisms to control and contain the particular challenge. Now, those mechanisms can vary from prescripts available, policies available, or even the higher authority available to ensure that at least, there is some form of just keeping peace amongst the parties.

Chairperson: Thanks, Deputy Public Protector. I now move to Hon Magwanishe.

Mr Magwanishe: Thank you very much, Chair. Good afternoon, Adv Gcaleka.

Adv Gcaleka: Good afternoon, Hon Magwanishe.

Mr Magwanishe: Chair, I must declare that I do know Adv Gcaleka since the time I was in the executive. And we also worked together in a committee – she reports to the committee.

Chairperson: Noted.

Mr Magwanishe: Thank you very much. Adv Gcaleka, how has the NPA honed you for the work you are doing now?

Adv Gcaleka: Would you kindly repeat that?

Mr Magwanishe: How has the NPA prepared you for the work you are doing now?

Adv Gcaleka: Firstly, as a prosecutor you are vested with prosecutor-guided investigations. So in respect of conducting and guiding investigations, not necessarily the fieldwork of investigations, there is a lot of work that prosecutors do in that respect. But also as prosecutors, you work with communities, you go into communities, conducting education, awarenesses, outreaches into communities. I even used to train doctors on medical legal work, I used to train the police on investigations, and I also used to do training within the National Prosecuting Authority. But most importantly, is the issue of performance management. I used to be in the national Committee that dealt with performance management. So when there is a crisis in any of the offices throughout the country, I used to even chair that committee when we would go and put in place interventions in terms of performance management. But most importantly, it is in respect of litigation.

Mr Magwanishe: No, thank you very much. And how has legal advising, advising Ministers, helped you or honed you for this role?

Adv Gcaleka: Firstly, it is to understand the Public Service much better because in the NPA you do not deal much with administration, but it was for me to understand administration; for me to understand the role of an executive authority, but also the role of the executive authority in the form of the PFMA (Public Finance Management Act), as an accounting authority, but basically, on the reflections of the interface between the executive authority and the institution itself.

Mr Magwanishe: Okay. Do you believe that either the Public Protector or the investigators should take [an] oath of office before they resume their work? If so, why so? If not so, why?

Adv Gcaleka: I strongly believe so. I think more than the constitutional and the political imperatives that are there to uphold ethics, it is important that the Public Protector and the Deputy Public Protector take an oath of office – in fact, it is one of our proposals in the Public Protector Act, and the reason for that is to inculcate that culture of ethical conduct of being truthful and to perform the duties in line with the Constitution and the laws of the Republic. And where staff is concerned, I also believe that they should. And what we have done in the meantime, to mitigate that; last year in October, we made staff members to actually sign a pledge to serve the people of South Africa, truthfully, with integrity, to be responsive and to be accountable. And we have also just recently signed the ethics policy, which has been produced by the institution, where we are inculcating the ethics code, in line with the Venice Principles, which is the principles on the Protection and the Promotion of the Ombudsman offices.

Mr Magwanishe: Okay. We know that we have a Public Protector that predates the Constitution.

Adv Gcaleka: Indeed.

Mr Magwanishe: And I think you have had time to apply yourself on what needs to be changed.

Adv Gcaleka: Indeed.

Mr Magwanishe: So can you give me five areas, generally, that you think that the legislature and the executive should initiate the legislation to amend the Public Protector Act?

Adv Gcaleka: We have actually already, Hon Magwanishe, submitted to the Department of Justice the proposals and some of the proposals that we put in place is the one of the oath of office. And the other one is to make a clear distinction between the Public Protector as the incumbent, and the Public Protector as the institution. And furthermore, it is to align the Public Protector Act with the PFMA where it clearly stipulates that the CEO is the accounting officer of the Public Protector. And furthermore, we make proposals regarding the whistleblowers, where we are putting in place more mechanisms where the Public Protector can assist with the protection of the whistleblowers. And the other factor which is very critical to the independence of the Public Protector, is the funding model of the Public Protector, to ensure that there is separate vote as the Public Protector. There are several studies, there is the New National Party, but also, there is the global standards on National Human Rights Institutions, that speaks on the funding part being a critical component when it comes to the independence of the Public Protector.

Mr Magwanishe: Thank you, Adv Gcaleka. Thank you, Chair.

Chairperson: Thank you very much, Magwanishe. Hon Dyantyi?

Mr Dyantyi: Thank you, Chair. Adv Gcaleka, you can take the water, you have been speaking nonstop. Maybe the first point to raise, because I think a lot of my questions have been taken and you have responded to them even before you were asked. The first point to make, perhaps on a lighter note, out of these eight candidates that we are interviewing, you seem to be the youngest of them, all of them. So if you were successful in this position, you are likely to be the youngest Public Protector. How does that make you feel?

Adv Gcaleka: Firstly, I think it would be something that, just not for me as a feeling, but it would be a statement to the country that younger leadership is what this country actually needs. The developing countries are becoming younger. It is only African countries that remain older. But also that…

Chairperson: It is no reflection on us.

Mr Dyantyi: Please, ignore him. Go ahead.

Adv Gcaleka: Particularly an institution such as the Public Protector, it requires energy. It requires innovation. It requires creativity. But it also requires acceptance of the two contradictions between the young and the old and be able to find middle ground in those in order to take the institution further.

Mr Dyantyi: And being a woman in a masculine society?

Adv Gcaleka: Being a woman? Yes, it is a difficult one, because truly my philosophy is that as women, you always have to work thrice as much as men work, you know. And I normally say, look at the corruption that has taken place in our country, mostly, it is men who have carried out the corruption, but it never goes into the name of men. Every man is taken as an individual, but a woman is taken as a collective. When things go wrong with a woman is then put on to each and every woman. So as a woman, basically, what it means is that I need to ensure that I prove myself in order to affirm the leadership of women.

Mr Dyantyi: Maybe just to conclude this lighter note matter. I want to take you back. You would have been much younger then when you [were] dealing with the Mdluli case. And I want you to tell us, in your belief of doing things without fear, without favour and without prejudice, what really was your hope when you drove that, consistently so, knowing that you are dealing with a highly placed head of crime intelligence?

Adv Gcaleka: You know, interestingly, when I came into contact with that docket, it had five statements in it, and I did not know whom or what I was dealing with. There was no name of the suspect. [I] guided the investigations. And three months later, when the docket came back, that is when I found out basically whom and what I was dealing with. But it was to ensure that justice is done. I must be honest, it is one of the most emotional cases that have ever dealt with, where you have actually seen how public power can actually be advanced and instill fear in families; in families that are poor; a family that does not know where to go and how to go. And for me [it] was to ensure that justice is done so that people can believe that indeed, all are equal in this country, no matter what position one holds.

Mr Dyantyi: Thank you. I want to go back to the Mail & Guardian case you told us about. And in that, I just want to situate Jafta J (Justice), in him talking about this open [and] inquiring mind, where he says, you need to be open to all possibilities. But he creates these two contrasts that you must have the mind that is not unduly suspicious. At the same time, a mind that is not unduly believing. I want you to take that and place that in the Phala Phala Investigation. Did that really materialise?

Adv Gcaleka: Indeed, it did. It did materialise because in the Phala Phala investigations, when I took it over when I started acting, I made sure that I allowed the investigators to do their work. First and foremost in line with the Public Protector Act, I made sure that I take the necessary steps to ensure that this independence, there is impartiality in the matter, and the matter is being dealt with without any prejudice to any party. There was one investigator into the matter. I strengthened the investigations. I included a senior investigator. I made sure that the executive manager responsible for the branch has oversight over the matter, and that the current COO who was the acting COO at the time, made sure that she had direct oversight in that matter. But that I, the acting Public Protector, received that matter in terms of our standard operating procedures and investigative guides as an escalation. Not at any point have I gone down to find out what is happening in the matter. It was very critical for us because we had to build trust as an institution. But we had to stay to the true form of independence of investigations. But what further happened into that matter is that each time the investigators escalated the matters, questions were put to ensure that we close the particular gaps in each and every matter. Mail & Guardian further says that the investigations should not be static and we ensured that we even beef up our investigation methodology, so that we ensure that we are able to deal with this matter in a proper investigation, an extensive investigation, but most importantly, removing who is involved and saying what are the actions and what are the legalities that we are dealing with as an institution.

Mr Dyantyi: Okay, thank you. Can you share with this panel and the country at large that is listening to you, you have a standing investigation method in the Public Protector. Just the key elements of that, and the pillars of what you do and what you do not do, because I have a next question to that. Unfortunately for you, I am not going to be asking what you would do; I am going to be asking what you are doing currently.

Adv Gcaleka: Indeed, we do have a standing investigation method. We have actually strengthened it; we have reviewed it. We have started, as I said earlier on, to look into our complaints forms. Firstly, are they fit for purpose currently, you know? The jurisprudence around the Public Protector has developed immensely; are our complaint forms speaking to that? Firstly, we found out that our complaint forms are not adequately addressing the issue of special circumstances; they are not sufficiently extracting the complaint out of the complainant. And we moved over to our assessment forms, because these then form part of the Rule 53 when a matter goes to court. Are we executing the delegations by the Public Protector in line with the delegation of authority and in line with the law? And we found that there were technical discrepancies. And by the way, these are the discrepancies which were also pointed out by the courts. But we have also piloted the review of our structure because we need to come before Parliament again, if we are reviewing. But we have piloted the review of saying to ensure that we strengthen or investigations from the onset.

Mr Dyantyi: Thank you. You can pause there. You can pause there.

Chairperson: I, unfortunately, cannot accommodate a further question. Thank you. You have exhausted your time.

Mr Dyantyi: Thank you.

Adv Gcaleka: Thank you.

Chairperson: Colleagues, thank you very much. It is six minutes past four, I think we did well. We finished within time. Thank you very much for [your] cooperation. Adv Gcaleka, thank you very much for the time with us. We are now at the conclusion. We can only say farewell. Have a safe trip back home, and thank you. So the colleagues are going to walk you out. Please can you walk out whilst we do our in-house things. Thank you.

Adv Gcaleka: Thank you, Chairperson. Thank you, to the Hon Members.

Chairperson: No, no, sorry, to just conclude the time for Monday. Yes, yes, Adv Gcaleka, I am sorry. You wanted to say something.

Adv Gcaleka: I just wanted to thank you, Chairperson and thank the panel. Thank you.

Chairperson: Colleagues, can we firm up the time for Monday?

Ms Maotwe: For Tuesday?

Chairperson: Sorry, for Tuesday.

Ms Tlhape: We said eleven [o’clock].

Chairperson: No, we decide… No, not all of us were in the meeting, and it was not in a meeting form. Are we agreeing that we are meeting again on Tuesday at eleven?

Ms Maotwe: Yes.

Ms Lesoma: For one hour.

Chairperson: No, no, I do not want to determine the time.

Inkosi Buthelezi: We will determine the time at the meeting.

Chairperson: We will determine the length of the meeting at the meeting itself. But we start at eleven, and it is a physical meeting. Thank you very much. The meeting is adjourned.