ATC240403: Report of the Portfolio Committee on Justice and Correctional Services on the Nomination of a Suitable Person for Appointment as Deputy Public Protector, Dated 3 April 2024

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 3 April 2024

 

The Portfolio Committee on Justice and Correctional Services, having considered the request to initiate a process to fill the position of Deputy Public Protector, reports as follow:

 

1. The Committee received a letter from the Deputy Speaker, dated 5 December 2023, asking it to initiate a process to fill the position of Deputy Public Protector as a vacancy has arisen following the appointment of the incumbent, Adv Kholeka Ghaleka, as Public Protector.
    
2. 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.
    
3. Specifically, regarding the role of the National Assembly, section 2A(3) of the Public Protector Act, 1994, provides that:

“The National Assembly shall recommend a person -

a. nominated by the Committee; and
b. approved by the National Assembly by a resolution adopted with a supporting vote of a majority of the members of the National Assembly.”

 

4. Process

 

1. The Committee advertised the position, inviting members of the public to nominate candidates for appointment. Interested parties were also invited to apply.
    
2. The names of all those who were nominated or who applied were published on Parliament’s website for comment.

 

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 -

a) 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

b) 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

c) 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

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

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

 

5.2. In addition to these formal legal requirements, the Committee identified several key focus areas to guide it when evaluating candidates’ suitability: “experience”, “knowledge”; “skills” and “attributes/character”.

 

6. Shortlisting

 

1. The Committee received 46 nominations or applications, but two (2) candidates withdrew their applications.
    
2. On 28 February 2024, the Committee met to discuss the nominations and applications received, and agreed to shortlist the following eight (8) candidates:

• Adv. Tommy Aron Bunguzana
• Adv. Mari Marriott
• Mr Azwidini Victor Mavhidula
• Ms Ponatshego Mogaladi
• Adv. Siphokazi Moleshe
• Adv. Lindiwe Mkhize
• Adv. Shadrack Tebeile
• Adv. Tseliso Thipanyane

 

3. Once shortlisting took place, all candidates were requested to complete a questionnaire, which also provides for disclosure.

4. The Committee agreed that the shortlisted candidates should undergo suitability screening and their academic qualifications would be verified. The Committee also agreed that Parliament should be asked to facilitate the screening of the candidates. The results were made available to the Committee before it met to interview the candidates.

 

7. Interviews

 

1. Subsequently, Adv. M Marriott notified the Committee that she was withdrawing from the process.
2. The interviews were conducted at Parliament on 13 March 2024.
3. On the day, the Committee started with a closed session to prepare for the interviews.

 

8. Objection to participation of Hon. B Mkhwebane

 

 

1. At the start of the interviews, just before the first candidate was to be called in, Hon. G Breytenbach, on behalf of the Democratic Alliance, raised an objection to Hon. B Mkhwebane’s participation in the process. The contention being that Hon. Mkhwebane is conflicted in relation to two candidates and that this taints the process by creating a reasonable apprehension of bias. The Democratic Alliance requested Hon. Mkhwebane to recuse herself from the process.
2. The candidates concerned are (1) Adv. Shadrack Tebeila, an independent legal practitioner and (2) Ms Ponatshego Mogaladi, an Executive Manager in the Office of the Public Protector (‘OPP’).
3. Hon. Mkhwebane argued, in contradiction, that there was no conflict, that there was no reasonable apprehension of bias, and that she was entitled to, and intended to, participate fully in the proceedings.
4. As a result of the impasse, the Committee requested urgent legal advice from Parliament’s Constitutional and Legal Services Office (CLSO). Based on the information that was telephonically provided to it, and in respect of Adv. Tebeile, the CLSO gave preliminary advice that a mere perception of bias is not enough to disqualify Hon. Mkhwebane from interviewing him, and if they had previously worked together in a matter, that would not in itself be sufficient for her to recuse herself. Regarding Ms Mogaladi, the preliminary advice was that disciplinary actions are within the nature of an employer-employee relationship and if this is done within the labour law prescripts, at face value, this would not warrant a recusal.
5. However, as the Committee deliberated on the advice, it quickly realised that its instructions to the CLSO were incomplete and insufficient. Against this background, the Committee asked the CLSO to advise whether, on the facts presented and as supplemented, Hon. Mkhwebane should recuse herself from interviewing Adv Tebeile and Ms Mogaladi, and whether this relationship would constitute a conflict of interest or reasonable apprehension of bias.
6. Hon. Mkhwebane responded that it is not the first time that a member of Parliament is known to, or has, relations with a candidate appearing before a committee they are a part of. She indicated that she has complied with Rule 30 of the National Assembly Rules, and Clause 5 of the Code of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council Members (“the Code”), as she has declared her relationship with both candidates. She further argued that, while she is part of the Committee, she is not a key decision maker as the recommendation will be made by the collective. In addition, she noted that her duty as a public representative is to ensure that a candidate who is qualified to serve and protect the interests of the public is appointed. She added further that she is legally qualified and approaches the interviews with an open and objective mind. As such she firmly believes that the recusal point taken by the Democratic Alliance is unnecessary and flawed.
7. The majority of the Committee determined to proceed with the interviews, pending receipt of the supplemented legal advice requested from the CLSO, as the candidates were already at Parliament, or on their way to Parliament, for their interviews.

 

 

9. Legal advice

 

9.1 The Committee received the supplemented legal advice from the CLSO, dated 18 March 2024 (‘the Advice’). The CLSO identified the legal issues that arise as follows:

• Whether the relationship between Hon. Mkhwebane and the two candidates creates a perception of bias and/or conflict of interest; and, if so,
• Whether the circumstances warrant her recusal from the interviews for the two candidates.

 

9.2  The following facts concerning Hon. Mkhwebane’s relationship to the two candidates are relevant:

9.2,1 Adv. Tebeile is currently representing Hon. Mkhwebane pro bono (i.e. without payment) in the African Court on Human and People’s Rights. While the Committee is not privy to the facts surrounding the case, a cursory Google search reveals that it is related to the Section 194 Enquiry.

9.2.2 Ms Mogaladi was employed at the OPP during the Hon. Mkhwebane’s tenure as Public Protector. During that time, Ms Mogaladi was subjected to a disciplinary process, and was found guilty of gross misconduct. Despite the chairperson of the disciplinary hearing having recommended a sanction of suspension and salary docking, Ms Mogaladi was served with a dismissal letter that also invited her to show cause why the dismissal was not appropriate in the circumstances. The letter specifically made mention of the breakdown of the relationship of trust between the employer and the employee.

 

Following her dismissal from the OPP, Ms Mogaladi approached the Labour Court on an urgent basis, seeking an order setting aside the dismissal letter and re-instating the suspension sanction recommended by the Chairperson of the disciplinary hearing. The order was granted in her favour. In doing so, the Court rejected the Public Protector’s argument that it should accept the contents of her letter in good faith. Judge Tlhotlhalemaje states that “[t]he applicants’ concerns that the Public Protector has already decided their fate are not misplaced. The Public Protector specifically stated in her letter that she is ‘hereby imposing a sanction of dismissal with immediate effect, subject to receipt of your representation’. It was submitted on behalf of the Public Protector that the Court must accept the bona fides of the contents of the letter. The Court will however be hard-pressed to do so based purely on a plain reading of that letter”. The former Public Protector’s leave to appeal against Judge Tlhotlhalemaje ruling was dismissed, and the judgement still stands.

9.2.3 In addition, Ms Mogaladi was a witness in the Section 194 Enquiry which led to Hon. Mkhwebane removal from office of Public Protector. The Section 194 Enquiry made a finding of victimisation, harassment and intimidation on the part of Adv. Mkhwebane as against Ms. Mogaladi. This finding still stands until/or unless set aside by a court of law.

 

9.3 The Advice notes that section 57(1)(b) of the Constitution, 1996, empowers the National Assembly to make its own rules and orders concerning its business. In this regard Rule 30 of the National Assembly Rules (“NA Rules”) and Clause 5 of the Code of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council Members (“the Code”) are pertinent:

 

9.3.1 Rule 30 of the NA Rules states that if a member has a personal or private financial or business interest in any matter before a forum of the Assembly of which he or she is a member, he or she must at the commencement of engagement on the matter by the forum immediately declare that interest in accordance with the code of conduct contained in the schedule to the Joint Rules and comply with the other provisions of the Code.

 

9.3.2 Clause 5.1 of the Code states that a member must:

5.1.1 any financial or business conflict of interest in which he or she is involved in his or her capacity as a public representative, in favour of the public interest; and

5.1.2. always declare such interest, and where appropriate, the Member should recuse himself or herself from any forum considering or deciding on the matter.”

 

9.3.3 Clause 5.2 of the Code states that a member must:

1.  

5.2.4 declare any direct personal or private financial or business interest that that Member or any immediate family of that Member or any business partner of that Member or the immediate family of that Member may have in a matter to be considered or decided on before any parliamentary committee or other parliamentary forum of which that Member is a Member or in which that Member is participating; or

5.2.5 withdraw from the proceedings of that committee or forum when that matter is considered or decided on, unless that committee or forum decides that the Member’s interest is trivial or not relevant.”

 

9.4 The Advice highlights that Rule 30 of the NA Rules and the Code anticipate an event where a member may have a personal or private financial or business interest in a matter serving before a forum of the Assembly. The provisions apply regardless of the member’s professional affiliation, or the oath of office taken by a member. Both the Rules and the Code call on the member to declare such interest and where appropriate, recuse themselves from the process. This requirement (declaration and/or recusal) is aimed at managing any perception of bias concerning the member’s judgement.

 

9.5 However, a mere perception of bias is not sufficient for recusal. There is extensive case law which provides that the apprehension of bias must be reasonable and depends on the facts of each case. As the case law suggests, judges are legally trained people who have an obligation to abide by their oath of office. This principle also applies to members of the National Assembly.

 

9.6 The Advice concludes that the relationship between Hon. Mkhwebane and the two candidates, in the first instance, does create a perception of bias and/or conflict of interest and, in the second instance, based on the facts presented, does call for her withdrawal from the interview process in so far as there is a reasonable apprehension of bias.

 

9.7 This conclusion stems from, firstly, a financial and personal benefit to Hon. Mkhwebane from her relationship with Adv. Tebeile and, secondly, the findings of the Section 194 Enquiry, read with Judge Tlhotlhalemaje’s judgement, which suggest strongly that any reasonable person in Ms Mogaladi’s position would apprehend bias on the part of Hon. Mkhwebane given their history.

 

9.8 The Advice notes that, in the circumstances, the Code and the applicable case law place an obligation on the member concerned to recuse themselves. Should Hon. Mkhwebane decide not to recuse herself in the circumstances, any party aggrieved by her decision will have a right to approach a court of law to have their dispute decided accordingly. Although the Rules do not provide for a process to compel the member to recuse themselves, the failure to do so could potentially result in a breach of the Code.

 

9.9 The Advice considers the following options as being available to the Committee, namely that Hon. Mkhwebane may recuse herself from the process in its entirety and be replaced by an alternate member of her party; or Hon. Mkhwebane may recuse herself in respect of the interview portion and deliberation in respect of the two candidates and participate in the balance of the interviews.

 

10. Deliberations

 

10.1 The Committee met on 2 April 2024 to consider the Advice provided to it, which it accepts, while noting Hon. Mkhwebane’s objection(s).

 

10.2 The Committee agrees that the relationship between Hon. Mkhwebane and the two candidates creates a perception of bias and/or conflict of interest. Further, given the circumstances, there is a reasonable apprehension of bias. This stems from, in the first instance, the fact that Hon. Mkhwebane is currently deriving a financial and personal benefit from the relationship with Adv. Tebeila and, in the second instance, regarding Ms Mogaladi, the findings of the Section 194 Enquiry, read with the Tlhotlhalemaje judgement, which suggest strongly that any reasonable person would apprehend bias on the part of Hon. Mkhwebane given their history.

 

10.3 Further, the Committee agrees that it is not relevant that Hon. Mkhwebane is not the sole decision maker in the process, as both the NA Rules and the Code address her personal or private (not political) interest in the matter at hand.

 

10.4 Although the NA Rules do not provide for a process to compel a member to recuse themselves, the Committee notes that should a member refuse to recuse themselves, any party who feels aggrieved by such decision will have a right to approach a court of law to have the dispute decided accordingly. In this regard, the Committee notes the gap in the Rules and is of the view that consideration should be given to developing a process to compel a member to withdraw from proceedings in a situation where the facts support the reasonable apprehension of bias.

 

10.5 The Committee does not agree that the options provided in the Advice as to a way forward are appropriate. The Committee believes that Hon. Mkhwebane’s participation has irretrievably tainted its process. In the circumstances, the Committee does not believe that it would be fair for it to continue by proceeding to deliberate on the merits of the candidates it has interviewed. This is so regardless of whether Hon. Mkhwebane recuses herself now or not. Further, in the Committee’s view, to proceed would attract controversy to the appointment, and risk litigation, both of which are not desirable.

 

 

11. Recommendations

 

11.1 The Committee understands that there is very little time before the Sixth Parliament rises ahead of the general election, which takes place on 29 May 2024, but given the circumstances set out in this report, recommends that the House resolve to begin the process to nominate a candidate for appointment as Deputy Public Protector afresh.

11.2 The Committee also recommends that consideration be given to developing the Rules to provide for a process to compel a member to withdraw from a matter should the facts support the reasonable apprehension of bias, and any other appropriate measures that may be required to prevent such a situation arising in future.

 

 

12. Appreciation

 

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

 

 

Report to be considered.