ATC160830: Report of the ad hoc Committee to Nominate a Person for Appointment as Public Protector, dated 30 August 2016

Appointment of Public Protector

Report of the ad hoc Committee to Nominate a Person for Appointment as Public Protector, dated 30 August 2016
 

The ad hoc Committee to Nominate a Person for Appointment as Public Protector (the Committee), having considered the request by the National Assembly to recommend a suitable candidate for appointment as Public Protector, reports as follows:

 

1. On 24 May 2016, the National Assembly resolved, in accordance with section 193(5) of the Constitution of the Republic of South Africa, 1996, to establish an ad hoc Committee to Nominate a Person for Appointment as Public Protector to recommend a suitable person for appointment as Public Protector when the term of office of the present incumbent, Adv. T Madonsela, expires in October 2016. The Committee is mandated to exercise the powers in Rule 138 that it deems necessary to perform its task; and to report to the House by 31 August 2016.

 

1. The Committee is composed of a total of eleven members, as follows:

African National Congress

·         Khoza, Dr M

·         Bongo, Adv. BT

·         Masondo, Mr NA

·         Koornhof, Mr NJJ

·         Tseke, Ms GK

·         Mothapo, Mrs MRM

·         Maesela, Dr P [Alternate]

 

Democratic Alliance

·         Breytenbach, Adv. G

·         Van Damme, Ms PT

·         Selfe, Mr J [Alternate]

·         Horn, Mr W [Alternate]

 

Economic Freedom Fighters

·         Malema, Mr JS

·         Shivambu, Mr F [Alternate]

 

Inkatha Freedom Party

·         Msimang, Prof CT

 

African Christian Democratic Party

·         Swart, Mr SN

 

National Freedom Party

·         Mncwabe, Mr SC [Alternate]

 

1. The Committee has held seven meetings as follows:
2. Election of Chairperson: 27 May 2016.
3. Discussion of process to follow: 1 June 2016.
4. Shortlisting: 13 July 2016.
5. Interviews: 11 and 12 August 2016.
6. Deliberations: 18 and 24 August 2016.
7. Adoption of report: 30 August 2016.

 

1. Legal framework and process

 

1. The Committee’s process is guided by the relevant constitutional and statutory provisions, as well as the Rules of the National Assembly:

 

1. In terms of section 193(4) of the Constitution, 1996, the President must appoint a Public Protector on the recommendation of the National Assembly. Regarding the role of the National Assembly, section 193(5) of the Constitution, 1996, provides that:

 

“The National Assembly must recommend persons -

 

1. nominated by a Committee of the Assembly proportionally composed of members of all parties represented in the Assembly; and
2. approved by the Assembly by a resolution adopted with the supporting vote of at least 60 per cent of the members of the Assembly if the recommendation concerns the appointment of the Public Protector …’.

 

1. The Committee notes in this regard that Parliament has yet to develop comprehensive guidelines for committees that are similarly tasked. The Committee considered the method of previous ad hoc committees mandated to nominate a person for appointment as Public Protector and found that although they had developed their own processes, these were of little assistance to the Committee.

 

1. The Committee, therefore, has developed its own process to complement the applicable constitutional and legal framework and has made use of a range of tools to establish the suitability of candidates.

 

1. Public participation

 

1. The Committee is acutely aware of and has welcomed the intense public interest that its work has attracted.

 

1. Section 193(2) of the Constitution provides that the involvement of civil society in the recommendation process may be provided for as envisaged in section 59(1) of the Constitution. Section 59(1) of the Constitution provides for public access to and involvement in the National Assembly. Broadly, the provision states that the Assembly must facilitate public involvement in its legislative and other processes and conduct its business in an open manner and hold its business/ meetings in public.

 

1. To facilitate public participation, the Committee agreed to an open and transparent process:

 

5.3.1.     The advertisement requesting nominations or applications for the position of Public Protector from members of the public appeared in all officials languages in various newspapers throughout the country. The advert also appeared on Parliament’s website. The closing date for nominations or applications was 24 June 2016. The Committee received a total of 78 applications or nominations, of which 16 were declined.

 

5.3.2.     On 28 June 2016, the Committee published the names of all candidates with their accompanying curriculum vitae on Parliament’s website. Members of the public were given until 8 July 2016 to make submissions on the candidates. The Committee received more than 100 submissions from members of the public.

 

1. Selection criteria and shortlisting

 

1. Section 193 of the Constitution, 1996, and section 1A of the Public Protector Act 23 of 1994 set out the applicable criteria for appointment as Public Protector: The Public Protector must be a South African citizen and a fit and proper person to hold the position. Section 1A(3) of the Public Protector Act 23 of 1994, adds that the Public Protector shall be:

 

“…a South African citizen who is a fit and proper person to hold such office, and who-

(a) is a Judge of a High Court; or

(b) is admitted as an advocate or an attorney and has, for a cumulative period of at least 10 years after having been so admitted, practised as an advocate or an attorney; or

(c) is qualified to be admitted as an advocate or an attorney and has, for a cumulative period of at least 10 years after having so qualified, lectured in law at a university; or

(d) has specialised knowledge of or experience, for a cumulative period of at least 10 years, in the administration of justice, public administration or public finance; or

(e) has, for a cumulative period of at least 10 years, been a member of Parliament; or

(f) has acquired any combination of experience mentioned in paragraphs (b) to (e), for a cumulative period of at least 10 years”.

 

1. Before shortlisting took place, all candidates were requested to complete a questionnaire that was based broadly on the questionnaire that the Judicial Services Commission makes use of in the case of judicial appointments and also contained disclosure provisions.

 

1. In addition, the Committee agreed that the academic qualifications of those shortlisted would be verified and that Parliament should be asked to facilitate screening of the candidates. The Committee is of the view that screening is important as it affords candidates the opportunity to refute any allegations that might arise.

 

1. Further, members of civil society undertook their own evaluation process and made the results of their findings available to the Committee for information purposes.

 

1. In addition to the formal legal requirements, the Committee identified a number of key focus areas to guide it when evaluating candidates: “character”; “knowledge”; “experience”; and “skills”.

 

 

 

 

 

1. Shortlisting and Interviewing

 

1. On 13 July 2016, the Committee shortlisted a total of 14 candidates. Of these, a total of eight were female and the remaining six were male. Those shortlisted were as follows:
   • Judge Sirajudien Desai
   • Judge Sharise Erica Weiner
   • Adv. Kevin Sifiso Malunga
   • Adjunct Prof. Narnia Bohler-Muller
   • Ms Jill Claudelle Oliphant
   • Adv. Mamiki Thabitha Goodman
   • Adv. Muvhango Antoinette Lukhaimane
   • Adv. Chris Madibeng Mokoditwa
   • Adv. Busisiwe Joyce Mkhwebane
   • Adv. Michael Mthembu
   • Mr Willam Andrew Hofmeyr
   • Ms Kajaal Ramjathan-Keogh
   • Adv. Nonkosi Princess Cetywayo
   • Prof. Bongani Christopher Majola

 

1. The interviews were conducted at Parliament on 11 August 2016, beginning at 8.00 am and ended on 12 August 2016 at 3:10 am.

 

1. As the interviews were being broadcast live on Parliament’s television channel, the Committee agreed to interview all candidates in one sitting. This was to ensure that no candidate was able to gain an unfair advantage by following others being interviewed on television.

 

1. Deliberations

 

1. The Committee had received a confidential letter, dated 4 August 2016 from the State Security Agency in response to its request to Parliament to facilitate screening of the candidates. The Committee put the information contained in the letter to the relevant candidates during the interviews. Nonetheless, some Members of the Committee felt that the information contained in the letter was prejudicial to these candidates and, for this reason, the Committee agreed that it would not use the results of the screening when deliberating. Further, the Committee is of the view that there is a need for Parliament to look into developing an appropriate mechanism to screen candidates that are nominated for appointment as public office-bearers to independent constitutional institutions.

 

1. The Committee began its deliberations on 18 August 2016, agreeing that the following candidates would remain on the list for further deliberation at its next meeting:
   • Judge Sharise Erica Weiner.
   • Judge Sirajudien Desai.
   • Adv. Busisiwe Joyce Mkhwebane
   • Ms Muvhango Antoinette Lukhaimane
   • Prof. Bongani Christopher Majola

 

1. At its next meeting on 24 August 2016, the Committee deliberated on the five candidates listed above and agreed to nominate Adv. Busisiwe Joyce Mkhwebane for appointment as Public Protector. The Democratic Alliance reserved its position.

 

1. Recommendation

 

1. Having considered the request of the National Assembly for the Committee to nominate a person for appointment as Public Protector, the Committee recommends, with the Democratic Alliance reserving its position, that:

 

9.1.1.     The National Assembly recommend Adv. Busisiwe Joyce Mkhwebane to the President for appointment as Public Protector.

 

9.1.2.     The National Assembly look into establishing comprehensive guidelines for committees of the Assembly when dealing with appointments of public office-bearers to independent constitutional institutions.

 

1. Appreciation

 

1. The Committee would like to thank all candidates for making themselves available to be considered for appointment as the Public Protector.

 

1. Further, the Committee would like to acknowledge the active involvement of members of the public and of civil society in this process.

 

Report to be considered.