ATC191127: Report of the Portfolio Committee on Justice and Correctional Services on the nomination of a suitable person for appointment as Deputy Public Protector, dated 27 November 2019

Justice and Correctional Services

Report of the Portfolio Committee on Justice and Correctional Services on the nomination of a suitable person for appointment as Deputy Public Protector, dated 27 November 2019
 

The Portfolio Committee on Justice and Correctional Services, having considered the request of the National Assembly to nominate a suitable person for appointment as Deputy Public Protector in terms of section 2A of the Public Protector Act 23 of 1994, upon the expiry of the term of office of the incumbent, Adv. K Malunga, on 9 December 2019, reports as follow:

 

1. On 8 August 2019, a letter was tabled from the Speaker to the President of the Republic, dated 12 June 2019, informing the President of the expiry of the term of office of the Deputy Public Protector on 9  December 2019,  and the initiation of a process to fill the upcoming vacancy, in terms of section 2A of the Public Protector Act, 1994. The letter was referred to the Committee for consideration and report.

 

2.Legal framework

 

 

1. In terms of section 2A(1) of the Public Protector Act 23 of 1994, the President, on the recommendation of the National Assembly, shall appoint a person as Deputy Public Protector for such period as the President may determine at the time of such appointment but not exceeding seven years.

 

1. Specifically regarding the role of the National Assembly, section 2A(3) of the Public Protector Act provides that:

“The National Assembly shall recommend a person -

1. nominated by the Committee; and

 

 

 

1. approved by the National Assembly by a resolution adopted with a supporting vote of a majority of the members of the National Assembly.”

 

3.Process

 

 

1. In developing its process, the Committee considered the methods of past committees, which were mandated to nominate suitable candidates for appointment as public officer-bearers to a constitutional institution, to complement the applicable legal framework.

 

4.Public participation

 

 

1. The Committee welcomes the considerable public interest that its work has attracted.

 

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

 

1. The advertisement requesting nominations or applications for the position of Deputy Public Protector from members of the public appeared in all official languages in various newspapers throughout the country. The advert also appeared on Parliament’s website. The closing date for nominations or applications was 20 September 2019.

 

1. On 26 September 2019, the Committee published the names of all candidates with their accompanying curriculum vitae on Parliament’s website after redacting certain personal details. Members of the public were given until 16 October 2019  to make submissions on the candidates.

 

1. A civil society organisation conducted an online survey asking members of the public to share their views with Parliament on the

 

 

 

types of qualifications, skills and experience that they believe the new incumbent should possess. The survey attracted 359 respondents.

 

1. The same civil society organisation also undertook a basic desktop evaluation of the candidates and published their results online in addition to submitting these to the Committee for  information purposes.

 

5.Selection criteria

 

 

1. Section 2A(4) of the Public Protector Act, 1994, sets out the applicable criteria for appointment as Deputy Public Protector:

“The Deputy Public Protector shall be a South African citizen who is  a  fit and proper person to hold such office, and who -

1. 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
2. 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
3. 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
4. has, for a cumulative period of at least 10 years, been a member of Parliament; or
5. has acquired any combination of experience mentioned in paragraphs (a) to (d), for a cumulative period of at least  10  years”.

 

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

 

 

 

6.Shortlisting

 

 

1. The Committee received 29 nominations or applications but three declined the nomination/withdrew their application: Of the remaining 26 candidates, six candidates were considered not to meet the requirements for the position as laid out in the Public Protector Act and, therefore,  were not considered.

 

1. On 23 October 2019, the Committee shortlisted a total of eight (8) candidates, as follows:

• Adv. Shadrack Nkuna
• Adv. Kholeka Gcaleka
• Mr Buang Jones
• Adv. Moshoeshoe Toba
• Adv. Puleng Matshelo
• Adv. Lwazi Kubukeli
• Adv. Noxolo Mbangeni
• Adv. Sonwabile Mancotywa

 

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

 

1. In addition, the Committee agreed that the shortlisted candidates be subjected to a  security screening and that their academic qualifications  be verified. Parliament was asked to facilitate the security screening of the candidates, while its Human Resources Division undertook the verification of the academic qualifications.

 

7.Interviewing

 

 

 

1. Subsequently, Adv. Mancotywa notified the Committee that he was withdrawing from the process.

 

1. The interviews were conducted at Parliament on 12 and 13 November 2019.

 

8.Deliberations

 

 

1. On 26 November 2019, the Committee deliberated on  the  seven candidates that it interviewed and agreed to nominate Adv. Kholeka Gcaleka for appointment as Deputy Public  Protector in terms of section 2A of the Public Protector Act 23 of 1994, upon the expiry of the term of office of the incumbent, Adv. K Malunga, on 9 December 2019.

 

1. The Democratic Alliance did not support this candidate and their objection is noted.

 

1. The Economic Freedom Fighters rejected this candidate and  their  rejection is noted.

 

9.Recommendation

 

 

1. The Committee nominates Adv. Kholeka Gcaleka for recommendation by the National Assembly to the President for appointment as  Deputy  Public Protector.

 

10.Appreciation

 

 

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