Deputy Public Protector appointment: interviews Day 2

Meeting report

Interview 1: Adv Lwazi Kubukeli
The Chairperson asked the candidate to state who he is, his values as well as the experience and service he would bring to the position of Deputy Public Protector. He asked the candidate to confirm his disclosure in the questionnaire and to elaborate if he wishes to. The 2016 Constitutional Court judgment, Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly, had a fundamental impact on the institution of the Public Protector. He asked what the impact of the judgment was.

Refer to audio for interviewee responses

Adv G Breytenbach (DA) asked what the candidate’s understanding is of the concepts ‘rule of law’ and ‘due process'.

Mr X Nqola (ANC) said that the candidate presented a most disadvantaged background. He asked what role the Public Protector should play in ensuring that the socio-economic lives of those who are downtrodden are improved. The Medium Term Budget Policy Statement indicated that for various reasons there is a need for budget cuts in departments including the Office of the Public Protector. Section 182(4) of the Constitution requires that the Office of the Public Protector must be highly accessible. He asked how the Office of the Public Protector should adhere to this requirement when there are serious physical constraints. On the assumption that the candidate is aware of the challenges faced by the Office and that the post for Deputy Pubic Protector has a seven-year tenure, what strategy and vision does the candidate have for the evolution of the Office over the next seven years?

Adv H Mohamed (ANC) said that the candidate listed particulars of his work experience only until 2010. What had he been doing between 2010 and present? In the questionnaire the candidate responded that he was dismissed however the CCMMA determined this to be an unfair dismissal. What was the consequence of this? He asked the candidate if the Public Protector is a passive adjudicator between citizens and the state or whether the institution has an investigatory role, requiring proactive action in certain circumstances. A Deputy Public Protector assists and supports the Public Protector, there are delegations and responsibilities given to the Deputy Public Protector. He asked what approach the candidate would take in the responsibilities as Deputy Public Protector. Would the candidate make propositions or wait for the Public Protector to provide these responsibilities. He asked what key challenges the Public Protector’s Office faces and what strategies the candidate would use to mitigate those challenges.

Ms N Maseko-Jele (ANC) said that section 182 of the Constitution makes provision for the accessibility of the Public Protector and for independence and impartiality. She asked for the candidate's view on these provisions. She asked the candidate’s view on the perception that the Office of the Public Protector's alignment with political parties, impartiality and independence. In what areas has the Office more successfully fulfilled its mandate and what needs to be improved. She asked how the candidate would address a situation where an organ of state ignores or refuses to implement a remedial action.

Ms W Newhoudt-Druchen (ANC) asked what the candidate’s understanding is of the role of Chapter 9 institutions within the Constitutional architecture; the mandate of the Public Protector; and if it overlaps or duplicates other Chapter 9 institutions; and how the candidate envisions avoiding that overlap.

Mr S Swart (ACDP) asked the candidate to briefly state what impact state capture and corruption has had. Would the candidate have any qualms in holding a political leader accountable if placed in the position of Public Protector. The candidate referred to the role of a memorandum of understanding – should you be in a position where you have a report such as the State Capture Report, would you use a memorandum of understanding? How would you ensure that your remedial actions are complied with? What is needed is an anti-corruption champion. As Deputy Public Protector, would the candidate regard himself as an anti-corruption champion?

Ms J Mofokeng (ANC) asked what the candidate's understanding of an anti-corruption champion is and what a champion of anti-corruption does. What constructive action can the Public Protector’s Office take to ensure that there is an effective public service which maintains a high standard of professional ethics. How would the candidate address a situation where an organ of state ignores or refuses to implement remedial action?

Mr W Horn (DA) asked if the candidate thinks that high profile matters should be steered away from, based on one of his responses in the questionnaire. He posed a situation where the candidate investigates service delivery and concludes that a specific law or the Constitution enables maladministration rather than prevents it. He asked how the candidate would deal with that finding in his remedial action. He asked how the candidate would deal with a situation where the Public Protector delegated meaningless tasks to him.

Dr M Ndlozi (EFF) asked if the candidate worked for an NGO called Freedom of Expression Institute. He was confused about the candidate’s response to previous question on the Rule of Law; and asked what the distinction is between the supremacy of the Constitution and the Rule of Law, and if the candidate thinks there is a distinction. The candidate mentioned that corruption is responsible for existing economic problems and asked which problems the candidate was referring to - how has state capture resulted in the rise of unemployment? How has state capture resulted in the loss of manufacturing jobs? There has been great criticism about the type of losses of cases that Adv Mkhwebane has suffered including personal costs that were accrued to her by the court. What is the candidate's view on the performance of the Office of the Public Protector under Adv Mkhwebane’s leadership. Section 181(3) in Chapter 9 of the Constitution states “that other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions”. Do you agree that the courts constitute “other organs of state”? Do they exist outside the state? There has been great resistance to the implementation of the Public Protector's remedial action, as used to be the case under Adv Thuli Madonsela. What should we do to politicians or institutions that refuse to implement the remedial action of the Public Protector?

Mr Q Dyantyi (ANC) noted that the candidate’s questionnaire consisted of three different handwritings and asked who assisted him in completing the questionnaire. He asked if he could conclude that the candidate has a “don’t care" work ethic. He asked if the candidate applied for this position to improve his financial standing. He asked what key weakness in the Public Protector’s Office the candidate has observed. What is his view of the personal cost that the current Public Protector has been asked to pay; if he thought it is unfair or that it compromises that space.

Ms N Tafeni (EFF) asked what the candidate’s full intervention on land claims cases would be as the Deputy Public Protector.

Dr Ndlozi said that the Legal Resources Centre is funded by the Open Society Foundation. He asked for the candidate’s view on George Soros who is the founder of the Open Society Foundation.

The Chairperson asked if the candidate had questions or comments and if he found the interview to be fair.

The Chairperson said that the candidate would be informed of the decision before December.

Interview 2: Adv Puleng Matshelo
The Chairperson asked the candidate to explain who she is, her values as well as the experience and skills she would bring to the Office of the Public Protector. He asked her to confirm her disclosure in the questionnaire and if there was anything she wished to elaborate on. He said that the 2016 Constitutional Court judgment, Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly, had a fundamental impact on the functioning of the Office of the Public Protector. How has this judgement impacted on the functioning of the Office of the Public Protector?

Refer to audio for interviewee responses

Mr S Swart (ACDP) asked what constructive action the Office of the Public Protector can take to ensure that there is good governance in the public service and a high standard of professional ethics. He assumed that the candidate is aware of the high level of corruption and the Prevention and Combating of Corrupt Activities Act. He asked if she would see herself as an anti-corruption champion; how she, as a Deputy Public Protector, would assist the Public Protector in ensuring that state departments and even ministers adhere to the remedial action proposed by the Public Protector. How would she operate in the Office of the Public Protector considering its financial constraints? Given those financial constraints, how would she advise the Public Protector on which cases against the Public Protector are taken on review at substantial legal cost, considering that 90% of the work should deal with public complaints and providing access to the Public Protector.

Mr Nqola said that the candidate was admitted as a 1989 military law officer. He asked her to confirm that in 1989 South Africa was under the Apartheid rule; that Bophuthatswana was a Bantustan led then by Lucas Mangope; and that Bantustans were generally led by spies of the apartheid authoritarians. He asked the candidate to state the skills and expertise she obtained in 1989 that allowed her to be appointed by a Bantustan military wing.

Adv Mohamed asked if the Office of the Public Protector is a public adjudicator between citizens and the state or if the institution has an investigatory role, requiring proactive action in certain circumstances. He asked what challenges or risks the Office of the Public Protector faces; how the candidate would mitigate these challenges; and if she has ever supervised subordinates or had people that reported to her – at Justice where you in the Office of the Chief State Law Advisor?

Dr Ndlozi said that the origins of the Public Protector flow directly from the Constitution and that the Chapter 9 institutions are stewards of the country’s democracy. He asked if she worked for a reactionary government due to financial needs and if she chose money over the eminent fight for justice. He asked how the candidate knew that her decision was not political if she claims not have been conscientised the time; and said that stewards of justice often choose higher values and not money. He asked what her motivation is for this position and what evidence she could give that she has chosen justice; that she is a fighter of justice and not expediency. He asked how old she was in 1989. The appointed Deputy Public Protector would have to work with Adv Mkhwebane. There is a lot of negative public review of the advocate because of the many losses of cases, including the personal cost order that the court gave her. He asked for the candidate’s view of the performance of the Office of the Public Protector under Adv Mkhwebane’s stewardship and what the candidate thinks should happen to redirect how the Office operates.

Ms Maseko-Jele asked how the candidate would ensure that the Public Protector’s Office makes an impact on the lives of ordinary people of South Africa, particularly woman and children; if she thinks that the Public Protector is experiencing current challenges because she is a woman, considering gender and patriarchy. What is the candidate’s view of the requirement by the Constitution for the Office of the Public Protector to be independent and impartial. How would the candidate address the situation where an organ of state ignores or refuses to implement remedial action; what is the mandate of the Public Protector; and in what areas has the Public Protector successfully performed her mandate?

Adv Breytenbach asked the candidate’s understanding of the concepts ‘rule of law’ and ‘due process’. The Public Protector’s Office is currently facing severe difficulties and constraints between the Public Protector and the Deputy Public Protector. The Deputy Public Protector has informed Parliament that his position is one of being side-lined and he is doing work that does not suit his qualifications or the status of a Deputy Public Protector. She asked what the candidate would do if she found herself in the same position.

Mr Horn asked which legislation the candidate worked on when she was at the South African Law Reform Commission; and what the big weaknesses are in the Domestic Violence Act given that she has a legislative drafting background and has been involved in training and processes in relation to domestic violence. He said that the candidate’s response to a previous question was that she can give only a prima facie view on performance of the current Public Protector. Why can she give only a prima facie view? He asked her to state what the prima facie view is.

Ms Mofokeng asked if the candidate knew the demands of the #TheTotalshutdown of woman who marched; what the role of the Public Protector is with respect to the requirements of the Executive Members Ethics Act; what the challenges are in the Office of the Public Protector and what she suggests can be done better. What she thinks about the Constitution requiring the Public Protector to be both independent and impartial?

Ms Tafeni asked if the candidate has any relations with a political party or with the Public Protector that she wishes to deputise.

Mr Dyantyi asked if the candidate had researched the Office of the Public Protector, what the budget of the office is and what the three programmes of the office are. On what basis had the candidate made her prima facie view if she is unaware of the Office's budget and programmes. He asked her to state two weaknesses that arise from the Office of the Public Protector. He asked what her view was on the statement by the court about the personal costs that were conferred on the Public Protector – if it was fair and the proper thing to do, or if it was too heavy for her. He asked her to explain why the Committee should appoint her after they have heard what she has presented. His view was that the candidate does not take the Committee seriously by submitting a handwritten questionnaire and asked if that reflected her work ethic.

Ms Newhoudt-Druchen asked what the candidate’s view is of the possible overlap or duplication of the Public Protector’s mandate with other Chapter 9 institutions. If there were an overlap, what would she do when in office to avoid the overlap and duplication of functions. What would the candidate do, learning from her experience, to assist people on the ground with mental health issues.

Mr Nqola said that the Committee is in search of a fit and proper Deputy Public Protector of South Africa. An element that defines a fit and proper as a concept, is honesty. It is expected for candidates to be honest at all times. He asked if, during her tenure in the Bophuthatswana military force, she had to do anything that might have compromised the genuine struggle of the black majority against the injustices of the time.

The Chairperson asked the candidate’s view of the interview process and if she thinks it was fair.

The Chairperson said that the matter would be concluded before Parliament adjourns in December and that the candidate would know her fate soon.

Interview 3: Adv Kholeka Gcaleka (transcription attached) 
The Chairperson asked the candidate to explain who she is, her values as well as the experience and skills she would bring to the Office of the Public Protector. He knows the candidate as an advisor for an Executive Authority, when he used to be in the Executive. He asked her to confirm her disclosure in the questionnaire and if there was anything she wished to elaborate on. In 2016, in the case of the Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly, the Constitutional Court made a judgment which had a fundamental impact on the powers of the Public Protector. Please explain the impact of the court’s decision on the Public Protector's powers.

Refer to audio for interviewee responses

Ms Mofokeng asked the candidate to confirm that she had worked in the NPA between 2004 and 2016, moved to Home Affairs and worked there for four years, then she joined the Treasury for ten months and then returned to Home Affairs for nine months. She asked if the candidate would be able to remain in the position as Deputy Public Protector for a longer period. She asked what being an anti-corruption champion means; what more could be done to promote an ethical culture in government, noting all the existing challenges; and what she would do if she did not get assigned responsibilities by the Public Protector.

Ms Newhoudt-Druchen asked the candidate for an explanation of the role of Chapter 9 Institutions within the Constitutional architecture. In the mandate of the Public Protector, one may find an overlap or duplication of functions with other Chapter 9 institutions, such as the Public Service Commission. She asked how the candidate envisaged avoiding duplication, if she were appointed as Deputy Public Protector.

Mr Nqola asked if the candidate had ever been called to a disciplinary hearing even if she was acquitted, found not guilty or the charges were cleared; and if she had ever been charged by for any malfeasance, corruption or related charges even if she was later acquitted. In reply to the questions in the questionnaire: 1) Are there any financial circumstances that would cast doubt on you? 2) Do you have any relevant matters which concern your honesty and integrity?, she responded ‘no’. There is a concern from Corruption Watch about comments the candidate had made in the NPA about Menzi Simelane when the NPA was restructuring as an institution, as well as when she was employed at Home Affairs and DPCI. He asked the candidate to expand on these. The EFF v Speaker of the National Assembly; DA v Speaker of the National Assembly has reaffirmed the enforceability of the Public Protector's remedial actions. However, there is currently another triggered discussion in society – when remedial action is established against an individual by the Public Protector, the individual has the right to take the Public Protector on judicial review by a court. This has led to a discussion on the status of the enforceability of the remedial action during the review. Some have argued that when the affected person takes the remedial action on judicial review, the remedial action ceases to be enforceable until the court pronounces on the matter. Others argue that, whether you apply for a judicial review or not, the remedial action is still applicable and enforceable even when the court has not pronounced on the matter. He asked what the candidate’s view was on this matter. Section 2 of the Public Protector Act states that the Deputy Public Protector acts in accordance with what has been delegated by the Public Protector. There has currently been a big loss in cases where adjudication goes against the Public Protector. He asked what the candidate would do in a situation where she is the Deputy Public Protector and she is not given any delegation framework and can detect that there are problems in the Office.

Mr Horn asked if she was a legal advisor to Mr Gigaba. During Mr Gigaba’s tenure as Minister of Home Affairs there was the Fireblade Aviation matter in which the High Court confirmed on appeal and found that Mr Gigaba deliberately told untruths under oath. As Mr Gigaba’s legal advisor, to what extent was the candidate involved in dealing with the finalisation of the statements under oath? Given history and perception of the Office of the Public Protector, what led the candidate to comment that "there should be a careful watch not to fall to lobby groups and other interests". How would the candidate steer clear of settling factional scores, if she were appointed as Deputy Public Protector?

Adv Breytenbach asked why the candidate regards independence as an important quality in the Office of the Public Protector and how would she be independent; and what the concepts ‘rule of law’ and ‘due process’ are. Mr Simelane was a wrecking ball in the National Prosecuting Authority, the architect of dismantling the NPA specialist units in the NPA and he decimated the NPA's ability to oppose state capture. She asked the candidate to explain why she supported Mr Simelane, why she did not fight as the head of the State Advocacy Society for the independence of the prosecutors and for the rule of law.

Ms Maseko-Jele asked if the candidate thought it was fair that she was judged based on her experience, considering the period that she has worked with the different individuals (Mr Simelane, Mr Gigaba, Mr Mdluli) and the shenanigans of the entire situation. She asked what the candidate had learnt from the experience; what value she would add to the Office of the Public Protector, given the challenges that the Office has been facing. In what areas has the Office of the Public Protector successfully achieved its mandate; and how would she address a situation in which an organ of state ignores or refuses to implement the remedial action of the Public Protector?

Mr Dyantyi asked if remedial action is binding and absolute. If she has conducted research on the Public Protector’s Office: what the budget of the Office is and how many programmes does it have? What two major weaknesses of the Office has the candidate observed that she would address as her first task if appointed? What was the cause for the ballooning exorbitant litigation costs and how would she assist to remedy that? What value does the candidate will bring, given her experience in the NPA, to the Office? What is the candidate’s understanding of judicial ethics and what are the consequences should a judicial officer fail to adhere to judicial ethics?

Dr Ndlozi asked for confirmation that when the candidate worked as a legal advisor, she worked for the minister at his personal discretion and not necessarily for the department. He asked why the candidate continued to work for the minister after the court confirmed that he lied under oath, did she not have an ethical conflict. Why did she leave the NPA to advise ministers if she is passionate about fighting justice? If she left the NPA because her life was under threat, how can he confirm that she would not leave the Office of the Public Protector? The trajectory seems to be her leaving the fight for justice to be a legal advisor in a department. He asked if that was about career because there is no fight for justice. He was not sure about the candidate’s ethical compass and asked whether or not the highest call of a Chapter 9 institution required a higher demonstration of ethics. He asked if the candidate is or has been a member of the ANC; and why she did not mention the facts about her struggle credentials. The court’s decision on the enforceability of remedial actions in the EFF case can be read as ‘remedial actions of the Public Protector are binding until set aside by court of law’. Why is it needed for the court to enforce remedial actions? Are there other creative ways that the remedial action can be enforceable when ignored by powerful people, who are even prepared to lie in court?

Adv Mohamed asked what the candidate’s strategic vision for the Office of the Public Protector is; and if she expects the litigation costs to rise or how they can be reduced.

The Chairperson asked what the candidate’s impression of the interview process is and if it was fair.

The Chairperson said that the matter would be concluded before parliament adjourns in December and the decision would be communicated to the candidate before then.

The meeting was adjourned.