Deputy Public Protector Appointment Process; Removal from office of Public Protector & Sub-Committee on Correctional Services

This premium content has been made freely available

Justice and Correctional Services

27 August 2019
Chairperson: Mr G Magwanishe (ANC)
Share this page:

Meeting Summary

VIDEO: Justice and Correctional Services Committee meet on Public Protector removal

The Chairperson informed the Committee that the parliamentary Programming Committee met the previous week and agreed that Rules be developed for processes relating to appointment of persons to positions in Chapter Nine institutions in terms of section 194(1) of the Constitution. Since the Speaker referred the matter raised by Mr J Steenhuisen, Chief Whip of the DA, to the Portfolio Committee on Justice and Correctional Services, the Committee had to take a resolution to refer the matter to the Rules Committee so that rules and procedures could be developed as soon as practically possible. All parties agreed to the resolution, with the DA adding the proviso that the matter be treated as urgent.

The Committee Content Advisor explained that the Committee was required to appoint a new Deputy Public Protector as the term of office of the incumbent ends in December 2019. The appointment process was found primarily in section 2(a) of the Public Protector Act (PPA). A Deputy Public Protector could be appointed for a maximum of seven years and could be re-appointed. The Committee had to nominate a Deputy Public Protector and the National Assembly had to approve, with a majority of its Members, the recommendation of that nominee to the President for appointment.

In terms of Section 59(1) of the Constitution, involvement of civil society could be facilitated. The section provided for public access and involvement in the processes of the National Assembly. Section 193(2) of the Constitution encouraged involvement of civil society in the recommendation process. There were no formal guidelines around the appointment process, but specific practices had evolved in Parliament for appointing leaders of Chapter Nine institutions. The content of the advertisement was subject to legal prescripts, but the Committee could add to the advertisement.

Committee Members strongly supported involvement of civil society and agreed to give civil society three weeks to scrutinise the applicants. Members were adamant the process be completely transparent and that civil society should be given adequate opportunity to participate in the process. Advertisements were to be widely distributed in all languages so that everyone in South Africa was aware of the call for applications. A Member suggested the definition of a fit and proper person needed to take into account any finding by a Commission of Inquiry. Members requested a schedule with the milestones and dates that could be included in the Committee schedule. To save time, Members suggested that only short-listed candidates be screened. Members noted the urgency of the matter.

The plan of action was to be presented to the Committee the following day and then an advertisement calling for applications for a new Deputy Public Protector would be drafted.

After the Committee meeting, the Chairperson and Members met briefly to discuss the proposed Sub-Committee on Correctional Services. Political parties submitted names of their representatives on the Sub-Committees and it was determined the Sub-Committee would begin its work the following week. One of the first matters to be attended to was the issue raised by Judge Froneman in relation to Correctional Services facilities. The Sub-Committee would report to the full Committee for endorsement of recommendations and approval of proposed actions.

Meeting report

Opening remarks     
The Chairperson welcomed Members, media and guests. He informed Members that after the meeting, which would address only two items, the Committee would discuss the composition of the Sub-Committee on Correctional Services.

Apologies were received from Dr T Mulaudzi (EFF) and Mr S Swart (ACDP).

Removal from office of the Public Protector
The Chairperson informed the Committee that the Programming Committee met the previous week and agreed that Rules be developed for processes in terms of section 194(1) of the Constitution to address dismissal of a person from a Chapter Nine institution. Since the matter raised by Mr J Steenhuisen (DA) had been referred to the Portfolio Committee on Justice and Correctional Services by the Speaker, the Committee had to take a resolution to refer the matter to the Rules Committee so that rules and procedures be developed as soon as practically possible. The resolution was necessary so that the Speaker could refer the matter to the Rules Committee as soon as possible.

Mr X Nqola (ANC) agreed the process proposed was fair and would allow the Committee to handle the matter in a responsible manner and so that the Committee, as lawmakers, did not preside over a highly litigious matter. He moved in support of the points made by the Chairperson.

Ms G Breytenbach (DA) supported the referral to the Rules Committee but respectfully asked that it be made clear to the Speaker that it was a matter of urgency so that the Rules Committee could deal with it and the matter could come to the Committee and Members could then deal with the substantive matter of removal of the Public Protector.

Ms N Maseko-Jele (ANC) agreed with sending the matter to the Rules Committee, but when the rules were established, the Rules Committee should ensure the rules would apply to other heads of Chapter Nine Institutions as well.

The Chairperson agreed the rules had to apply to all Chapter Nine Institutions. As the Committee approved the resolution to refer the matter to the Rules Committee, he would ask the Secretary to write the letter to the Speaker that same day, signed by the Chairperson. The Chairperson would request the matter be attended to urgently.

The Chairperson indicated that, as per the second item on the agenda, the Content Advisor, Ms Christine Silkstone, would brief the Committee on the process of the appointment of the Deputy Public Protector (DPP).

Presentation by the Content Advisor
The Content Advisor explained the Committee was required to appoint a new DPP as the term of office of the incumbent, Adv Kevin Malunga, would conclude at the end of the year. The appointment process was found primarily in section 2(a) of the Public Protector Act (PPA).  There was reference to the Committee in section 2(1) (b). A DPP could be appointed for a maximum of seven years but the term can be renewed. The Committee had to nominate a DPP and the National Assembly had to approve with a majority of its Members. There was some similarity in the process of the appointment of the DPP and the Public Protector. However, the appointment of the DPP was found solely in the PPA and not in the Constitution.

In terms of Section 59(1) of the Constitution, involvement of civil society could be facilitated. The section provided for public access and involvement in the processes of the National Assembly. Although the appointment of the DPP was not addressed in the Constitution, section 193(2) encouraged involvement of civil society in the recommendation process.

The selection criteria were set out in section 2(a) (4) of the PPA. The powers of DPP were delegated by the PP. The DPP could stand in for the PP. Section 2(a) (5) of the Act addressed remuneration and employment.

The Chairperson welcomed the Chief Whip of the majority party, Ms P Majodina, to the meeting.

The Content Advisor explained there were no formal guidelines around the appointment, but specific practices had evolved in appointing Chapter Nine personnel. The preparatory process included calling for nominations in print and electronic media. The content of the advertisement was subject to legal prescripts, but the Committee could add to the advertisement. What was new in the Fifth Parliament was the facilitation of public involvement in the processes. To facilitate public comment, the candidates’ names and redacted Curricula Vitae (CVs) were put on the parliamentary website and the public was given one to two weeks to submit comments. Challenges included dealing with personal information and the number of comments that might be received from the public.

The Committee would have to determine the number of applicants to be short-listed and whether the process of screening, i.e. a police report from the SA Police Service (SAPS), a report from the State Security Agency (SSA) and checking of educational qualifications by the Human Resources section of Parliament, would take place before or after the short listing process. The Committee had to determine whether or not to accept late CVs. The Committee had to consider the date and length of the interviews, whether or not to pre-determine questions, and whether to interview over a single day to avoid candidates being able to prepare after seeing interviews on television.

Discussion
The Chairperson called for questions of clarity and then the Committee would have to make certain decisions in respect of the process.

Mr J Selfe (DA) referred to the Draft Practice Notice where paragraph 5 dealt with the definition of a fit and proper person. He suggested the definition also needed to take into account any Commission of Inquiry finding. In the case of Mr Simelane, for example, it was not a court of law that made a decision against him, but a Commission of Inquiry that decided Mr Simelane had a case to answer for. The Member suggested that a Commission of Inquiry be added to the criteria.

Mr R Dyantyi (ANC) stated that he had proposals to make. It was not a question of clarity.

Ms J Mofokeng (ANC) also had a suggestion to make and was not seeking clarity.

The Chairperson stated there was no objection to Mr Selfe’s proposal.

Mr Dyantyi had a couple of points that would assist the Committee to go forward. In his view, the presentation was not complete. He would have expected something in addition. Time was not with the Committee. The contract of the DPP ended on 9 December 2019, which was in three months and 13 days. He did not want to have to request an extension of the DPP’s stay. He had expected that the Content Advisor would present a schedule with the milestones which would mean that dates could be included in the Committee schedule. He also would not have wanted the Committee to be called back again only to approve a schedule. The Committee needed to consider a practical schedule with dates and time so that the Committee could also understand how much time would be given to the public process. Mr Dyantyi wanted it to be a transparent process and was not sure that two weeks would be enough. He wanted the process to be completely transparent so that there was total buy-in to the process and the DPP by the public.

Mr Dyantyi added that if Parliament could start and finish the appointment of a DPP within three months, it would show that it could be done. Departments usually took 12 to 18 months to appoint a Director or Chief Director where the requirements were not as stringent. Members would find, in the Annual Reports, that filling a vacancy for a Chief Director would take a year. Parliament, as the oversight body, could show that it need not take so long.

Mr Dyantyi asked if there was an example of what work was delegated to DPP Adv Kevin Malunga by the PP or whether he had been phoned each day and told what to do. The delegations to a DPP were at the discretion of the PP and so sharing of what it was that a DPP did would be helpful.

Mr Dyantyi explained why the Committee could not take longer than three months if it wanted someone to start in January 2020. The person nominated would need to give a month’s notice to his/her employer. As an extreme example, he said that a politician like Richard Dyantyi would not need to give a month’s notice, but the Committee was probably not looking to appoint someone who was doing nothing at the time. The likelihood would be that the person would have to give notice.

The Chairperson light-heartedly suggested to the Chief Whip that someone was applying for re-deployment.

Ms Mofokeng suggested that three weeks be set aside for public participation and that the Committee took a week to look at the public submissions. Public participation was a constitutional mandate and the Committee should be sure that all people, black and white of all languages, understood what was happening. In the end, the PP and the DPP worked with the ordinary people and often those people did not know how they had been appointed.

Ms Mofokeng added that the advertisement should not alert candidates to the fact that they “may be screened”. There was no option. Screening was a ‘must’. Lastly, she asked that the advertisements be made available in all languages and even in Braille so that citizens of South Africa could not say that they did not know how the people came to be interviewed for the post.

Mr H Mohamed (ANC) had largely been covered by colleagues but added that he agreed with the three weeks for public comment.  Civil society often received notices or advertisements quite late. He suggested those from civil society received notice in time but seemed reluctant to distribute the information and it was left to the political parties to distribute notices and advertisements.

Mr Mohamed stated that the ANC would broadly accept the proposal made in the briefing plus the additions.  Regarding selection criteria, the number of applicants to be short-listed should be left open-ended because it would be dependent on the number of applications, timeframe, etc. The courts said the selection process should be practical, rational and reasonable. Those were the broad criteria. He suggested the advertisement could say that late CVs would not be accepted but there could be practical reasons for the late arrival of CVs. He suggested that that matter also be left open for the time. Screening of only short-listed candidates would save time and the length of interviews would depend on the number of candidates.

He suggested that the interview questions should be prepared in-camera to protect the integrity of the process. He did not want candidates to have sight of the questions beforehand. The public would understand that and would hear the questions during the interviews. Tradition had it that candidate interviews were broadcast but Mr Mohamed suggested that a way had to be found of preventing candidates from seeing and hearing the early candidates as that gave later candidates a huge advantage. He did not have an answer to the challenge at the time.

Mr Nqola endorsed the process that had been tabled, with the amendments proposed in the meeting, and stated that the sooner the Committee Secretary worked on the programme, the better.  It was as urgent as the previous day, especially given the timeframe as Mr Dyantyi had explained. Given the current situation in that office (of the PP), one could really use a second hand there.

Ms Breytenbach stated that the advertisement should state that screening was not a possibility but that there would definitely be screening.  She agreed that, in view of the amount of work involved, only short-listed candidates be screened. She had misunderstood Mr Mohammed’s remark about what should be held in- camera but, having clarified his point, she agreed.  The public had been very helpful in assisting with the screening of the PP but she agreed that two to three weeks should be enough to allow NGOs to assist.

The Chairperson stated that he saw no difference in the views of Members on the proposals. The Content Advisor should consolidate all the views and take into account that by 9 December 2019, the Committee should have a new DPP. The Content Advisor should prepare a programme taking into account the constituency period in September and the fact that the House rose at the end of November/early December 2019. There was agreement on three weeks for the public process. He agreed with the need for the advertisement to be in all languages, although the budget might be a constraint, and for screening to be restricted to short-listed candidates. On the matter of the closing date, the Chairperson raised a concern that the process could be opened up to all sorts of abuse if it was not a firm closing date. How would abuse be prevented?

Mr Mohamed explained that in the advertisement, it would state that no late applications would be accepted, but an applicant could make out a case for a late acceptance.

The Chairperson requested the Content Advisor present a consolidated programme with a plan of action the following day so that advertisements could be signed off as soon as possible.

Ms Mofokeng asked about the decision regarding the number of short-listed candidates.

The Chairperson stated that the decision was to wait and see the number of applications and so on.

Ms W Newhoudt-Druchen (ANC) asked for the advertisements to be presented to the Committee the following day.

The Chairperson stated that the advertisements would be addressed immediately after the programme was approved. Advertisements would come to the Committee later. The time was very tight. The action plan would be the first item on the agenda.

Mr Dyantyi said advertisements were urgent as they kick-started the programme. He appreciated the fact that the Chairperson had promised to address the matter.

The Chairperson stated that it was quite urgent to start work on the appointment of a DPP. He noted that the business of the meeting had been concluded.

This portion of the meeting was adjourned

Committee meeting on the Sub-Committee on Correctional Services
The Chairperson stated that the Sub-committee had urgent work to attend to and it was important that it began as there were reports to attend to, one of them written by Judge Froneman.  

Mr Mohamed stated that he had submitted a list of names which proposed Mr Dyantyi as Chairperson of the Sub-Committee meeting. Other Members were Ms Mofokeng, with Ms Newhoudt-Druchen as the alternate Member, and the third Member was Mr Nqola.

The Chairperson noted that Mr Dyantyi had been nominated as Chairperson of the Sub-Committee.

Ms Breytenbach submitted the name of Mr Selfe and proposed that he Chair the Committee as he had been on the Committee for three terms and had the most in-depth knowledge and experience of all the Members.  She suggested that the Chairperson should be elected in the meeting, and not nominated. Alternate members were Mr W Horn (DA) and Ms Breytenbach.

The Chairperson stated that at the first meeting of the Sub-Committee, the election of the Chairperson would take place between Mr Dyantyi and Mr Selfe.

Regarding the EFF, the Chairperson noted that Dr Mulaudzi’s name had submitted and Mr Swart had indicated that he would attend the meetings whenever his programme allowed. The Chairperson also proposed an engagement between Mr Mohamed and Ms Breytenbach to resolve the matter of the Chairperson before the meeting.

The Chairperson submitted that by the following week, the Sub-Committee should have started meeting. Thereafter the Sub-Committee would be included in the agenda so that the Sub-Committee could report and submit reports to the Committee which could take the necessary decisions. The Committee would delegate work.

He was able to confirm that parties had submitted the names of Members who would sit on the Sub-Committee.

Prof C Msimang (IFP) stated that he was at a disadvantage as he sat on various Committees so he missed some things, but he would take it up with the Chief Whip of the IFP, Mr N Singh.

The Chairperson understood that it was difficult for smaller parties and they became over-stretched. The Committee would meet the following day.

Meeting adjourned
 

Share this page: