Update on process to appoint Auditor-General

Meeting report

Opening Remarks

The Chairperson said it was the second meeting of the Committee. The Members were looking at appointing the best candidate for Auditor-General (AG) as recommended by the National Assembly (NA).

Adv Frank Jenkins, Parliamentary Legal Services, was present to guide the Committee on the matter.  

Corruption Watch had requested to join the Committee’s appointment meeting. The office of the AG was an important appointment, and it was therefore critical to get advice from the legal system and Constitution to ensure transparency and articulate the role of Parliament.

Corruption Watch proposals on appointment process

Adv Jenkins said the task and mandate of the Committee was important. There was limited time to get to where it needed to go. The Parliamentary Support Office advice would influence the programming of the appointment process.

Background

Corruption Watch had made six proposals on the appointment process for the AG. The first was to publish the Curricula Vitae (CVs) of all the candidates on Parliament’s website.

The second proposal was to allow for at least seven days for public comment on the candidates, facilitating public participation by being able to raise objections, omissions, and general comments on applicants for the position.

The third proposal was to develop further short-listing guidelines for the position, in addition to the base criteria that were provided by Section 193(3) of the Constitution, to ensure that the most competent candidates were interviewed.

The fourth was that the Committee classified candidates in terms of eligibility.

The fifth was to develop a questionnaire to assess the skills, expertise, knowledge and ethics of the candidates in order to ensure an objective and standardised comparison.

The sixth proposal was to develop a scorecard to evaluate the candidates by weighting the importance of their technical skills, leadership and behaviour, as had been done in the previous appointment process.

Regulatory Framework

The core regulatory framework, according to the Constitution, included Section 181(e) which established the office of the AG. Section 193(3) laid out the minimum requirements for the appointment of the AG. Those appointed needed to be a woman or man who was a South African citizen, and fit and proper to hold the office. Due regard needed to be given to the candidate holding specialised knowledge of, and experience in, auditing, state finances and public administration.

Section 193 (4) and (5) set out the procedure for the appointment of the AG. The President needed to appoint the AG on the recommendation of the National Assembly (NA). The NA needed to recommend candidates a) nominated by a committee of the NA proportionally composed of Members of all parties represented in the NA, and b) approved by the NA by a resolution adopted with a supportive vote of at least 60 percent of the Members of the NA.

Section 193(6) provided for the discretionary inclusion of civil society in the appointment and recommendation process according to Section 59(1)(a), which placed an obligation on the NA to facilitate public involvement in the legislative and other processes of the NA and its committees.

The Public Audit Act (2004) gave no significant detail on the appointment process.

The Protection of Personal Information Act (2013) permitted the processing of personal information for justifiable purposes only. This, for example, related to the publication of CVs on the parliamentary website, which should reasonably be published, but could omit details such as applicants’ addresses or identity document (ID) numbers.

The Constitutional Court had made findings in the case of Doctors for Life, where it had discussed facilitation of public involvement. It had been determined that the test for public participation was whether it was reasonable and meaningful within the context of the issue under consideration. Therefore, the public should be given meaningful opportunities to be involved in the matter.

The AG was an important Chapter Nine body supporting constitutional democracy. The Office therefore felt it important to have good public participation in the matter of appointments. The 2007 report of the Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions had produced the “Asmal Report.” He said the Members should be guided by the Asmal Report. It indicated that the involvement of civil society in the appointment procedures to Chapter Nine offices would be necessary; particularly as such involvement would increase transparency and overall credibility of the procedures and create greater public awareness of the bodies. This involvement of civil society in the appointment procedures was therefore necessary, not only in the short-listing process, but in the recommendations process as well.

Advice

On the publication of CVs, the Protection of Personal Information Act (POPIA) required consent from candidates to publish the CVs. This was a reasonable expectation, as meaningful public participation required the same as per the Constitution. It was therefore suggested that CVs, or a summary of the CVs, be published on the website, leaving out irrelevant details such as the applicants’ addresses, marriage status etc. Qualifications and experience should be included. Adv Jenkins suggested the Committee make clear the reason for setting out these provisions and publication of CVs on the website.

On public comment or objections to candidates, it was suggested that the public be afford an opportunity to object orally or in writing to short-listed candidates. The Constitutional Court had laid out that there needed to be a reasonable opportunity to make meaningful contributions and participation in the process of appointment. In some cases, seven days may be sufficient, while in others it could be too long or too short -- it depended on the gravity of the situation of Parliamentary work.

Close to 70 CVs had been received. The discussion was therefore whether to first eliminate the ones that did not meet the basic criteria, or publish all 70 on the website for public comment. He said it could be reasonable to put a summary of all CVs on the website and then move to further short-listing. The Committee could then develop further short-listing guidelines to assist, subject to the baseline constitutional requirement. The Committee need not add additional requirements other than what the Constitution had provided. Candidates could be graded on the level of compatibility with the given constitutional requirements, such as experience in public finances.

On the classification of candidates according to an appropriate scale of classification, the Committee was permitted to develop such a classification scale if it wished to.

The development of a questionnaire to assess candidates could be of assistance to the Members, but they were not limited to it. In Adv Jenkins’s “traditional view”, having a questionnaire which the panel went through to score a person was, when coming to parliamentary processes, a useful instrument that made the process more objective. Therefore, it was recommended to implement this, but Members should not be limited to asking questions that were in the script.

On the development of a scorecard to evaluate candidates, the Committee could develop a scorecard to assist in its consideration of the ranking of candidates. This would assist the Committee, but was not the “be all and end all” of the process.

Way Forward

Based on the advice sought in the constitutional and related provisions, the Office had several suggestions.

On the consent of the candidates, the CVs should be published on the parliamentary website. If candidates refused, Adv Jenkins said they should be thought to be disqualified. As it was an application for a public position, it was a reasonable assumption that candidates’ credentials were necessary to be published.

On the matter of proper consultation with the public on the appointment process, the public should be afforded an opportunity to comment on the people eliminated from consideration and those on the short-list.

Moving on to the short-list, the Committee could move to the “hard HR process,” using the method of the questionnaire and grading of candidates, in addition to other personal assessments. The core of what Corruption Watch was requesting was therefore in line with the Constitution.

The Chairperson said the Committee could discuss the legal matters while Adv Jenkins was still present.

Discussion

Mr N Singh (IFP) apologised for joining late, there had been an important vote in the NA. He had therefore not heard the presentation, but had a copy of the presentation in front of him.

He said it was important to make public participation necessary in appointments to Chapter Nine institutions. Based on his experience serving on the Judicial Services Commission, he suggested a process of public participation that was similar to Adv Jenkins’s proposal. This involved calling for people to apply. Thereafter, after the following day’s short-listing meeting, he proposed that the Committee invite interested parties to make submissions and comments on the short-list to the Committee Secretary. Comments would then be passed on to the short-listed candidates to respond in writing or orally before the interview process. The public would be invited to make comments for or against short-listed candidates. This allowed for public participation.

CVs had to be made available to interested parties, save for details such as residential address and ID number, etc. The rest should be made available. This would help in developing a database of interested / affected parties. The interview should be an open process and deliberation, as in the Judicial Services Commission.  

Mr J de Villiers (DA) said it was clear from the presentation that there were two guidelines eliminating most of the candidates. He had looked at what the Committee had done in finding the seven short-listed candidates. He knew the short-listed candidates would be spoken of at the meeting the following day. If the two prerequisites of the post included being an auditor and having experience in public finance, he did not see the reason to have to move forward and contact the Members who did not satisfy these requirements and publish their CVs. These people automatically did not qualify. This was in the essence of time and efficiency.

He supported the view of having a public participation process with what had been suggested by Mr Singh -- to invite interested parties to sit in and have an opportunity to comment. However, public participation could begin on the short-listed candidates once the Committee was satisfied with being left with the candidates who met the minimum requirements, as suggested by the Constitution.

The Chairperson asked Members to deal with matters related to the legal adviser, while Adv Jenkins was still present in the meeting. The exercise of short-listing would be done in the meeting the following day.

Ms D Dlakude (ANC) said she agreed with the Advocate’s advice. Committees of Parliament were open to the public, as stated by Mr Singh. The AG was a public office and a Chapter Nine institution that supported constitutional democracy. She saw no problem with the Committee following the legal advice from Adv Jenkins and the input made by Mr Singh, as long as Parliamentarians were the ones doing the short-listing and interviews of candidates.

Mr S Somyo (ANC) said the entire process, from starting point to present, as it had already been “in the wheel”; was a legal process. It was a matter of defining from the start who would be involved in terms of that appointment to the office of the AG. This was something that was done through the Ad Hoc Committee through the specification of the advertisement of the Committee, the role and constitutional requirements in terms of the finalisation of the appointment that should be made. This ensured that the legal aspects were carried through from the advert itself, so that those taking the decision to apply for the position were doing so on the basis of the legal definition as set out in the advert. Therefore, the element of Corruption Watch wanting to be involved could extend to the broader questions of public participation, as it entailed the openness of the process and was permissible. The Committee needed to ride on the constitutionality of that kind of process. Going forward, the elements of such areas of openness needed to be defined, and the cause to make choices from candidates according to the recommendations the Committee had received, had to be done against this legal framework.

He agreed with Ms Dlakude – that “at the end of it all,” the actual sitting, the interview and the decision for the appointment were the purview of the Committee itself, while under the “eye of anybody” wanting to be involved in the process through public participation. Mr Singh’s proposed intervention applied in that instance, by allowing that anybody who wished to view the matter was free to do so. The “eye” needed limitations. The same candidates needed to be taken through specific assessments such as human resources, and these required an in-depth outlook for the finalisation of the appointment, and the decision needed to lie with the Committee. He agreed with the advice of the Advocate and Mr Singh. The Committee needed to outline the open process in the appointment of the AG insofar as the Committee was concerned.

Ms V Mente-Nqweniso (EFF) agreed with her colleagues on the issue of transparency and access to information in the appointment process. In terms of objections from the public and other watch dogs on whatever short-list was published; the Committee should take note of these inputs and welcome them into consideration. The Committee was now aware that the minimum information security standard document had limitations and challenges. As long as the document was still being amended -- the law used to vet and look into affairs individually and the wider security of public representatives -- public participation was important as a counterweight. Through participation, the public could be involved in policing the characters of the candidates.

The Chairperson said the Members had therefore discussed and agreed on Adv Jenkins’s advice, while also tapping into the experience of Members in other similar scenarios on how to move forward. These deliberations had made use of the Constitution and existing judgments. She surmised that the Members were all in agreement on the matter.

She requested the Committee’s administration team to formalise the agreement in the following day’s meeting, prior to starting the short-listing process. She asked for acceptance of the proposal.

Mr Singh agreed.

The Chairperson said Mr Singh had agreed with the summary.

Mr S Buthelezi (ANC) agreed on the way forward.

The Chairperson thanked Adv Jenkins and his team at the Office for the sterling work, which was appreciated. She thanked the Members for their cooperation. The deliberations had dealt more broadly with the issue than simply that of the Corruption Watch matter. She said the Committee had dealt with the matter in its totality.

Process for future meetings

The Chairperson asked the Committee administrative team to brief the Members on the state of readiness for the following day’s meeting.

Mr Peter-Paul Mbele, Committee Secretary, said that the Members would have gone through the documents that had been sent. He looked forward to their feedback.

Another matter he thought prudent to introduce at the current stage of the meeting was that he knew the Chairperson had hoped that the meeting the following day would focus on short-listing. There was also the matter of the interview logistics. Interviews were scheduled for 18 August 2020, which was a Tuesday, as initially planned. There was the issue of it being the Sixth Parliament, as it would be the first time the Committee was making such an important recommendation pertaining to the appointment of the AG. Considering this, he wondered about holding the meetings virtually. He had discussed the matter with the Chairperson privately on the options to be put to Members in that regard.

In terms of the decisions of the Members about holding the interviews, he said they were looking at two options for the interviews taking place on 18 August. One was whether to hold interviews virtually, or to follow the experience of other colleagues dealing with interviews, such as the board interviews that had been conducted for the National Youth Development Agency (NYDA), which had used a hybrid system. This involved having Members converging in one central location (most likely Gauteng), looking at where candidates and Members came from and where a common overall location could be found, and then holding a day of interviews. If Members did not want to be exposed to COVID-19, they could connect from home in the hybrid system. He asked for guidance on these matters from the Members.

The Chairperson put the matter to the Members to decide. She did not want to have one option – especially when there had been the frustrations of network issues being beyond control of the Members. She said Mr Mbele was bringing the option of doing the interview work once and for all, and making it work as well as possible without technical glitches. She was looking for more options, but  urged Members to take into consideration that Level Five restrictions applied.

Ms Peters supported the option of a central venue for candidates to attend the interviews, and to have them for the day. She had been worried about being under COVID-19 regulations and how these would affect the interview process. She asked if the secretariat could look at options of a place to hold the interview.

On the matter of hybrid interviews, she had mixed views. It was during hybrid meetings that Members experienced the glitches. There had to be an alternative way for Members on virtual platforms who struggled with connections during the hybrid interviews, to ensure they were able to participate. She suggested the secretariat explore the option.

She said the restrictions were Advanced Level Three. The majority of the Members would be able to move to a central point, otherwise it was a problem. She felt that the candidates needed to get to the single point where interviews were being held.

Mr Singh supported considering the options on how best to conduct the interviews. The Committee could finalise this after agreeing on the short-list, as they could then look at determining a central location based on where the short-listed candidates were based. It was possible to hold hybrid meetings – Parliament was meeting. There were strict conditions, but he did not see why it was not possible. Those who were uncomfortable due to being deemed as at-risk candidates for COVID-19, could participate via the hybrid mechanism. However, the first step remained to finalise the short-list and see where they were situated.

Ms Mente-Nqweniso said she was covered by Mr Singh on the fact that the decision should be made after ascertaining where the short-listed candidates were located, otherwise Parliament may have to pay a lot of money when it could have been avoided. She supported converging in one place in one day to deal with the matter. The hybrid solution was a problem, as Members and colleagues had already been experiencing issues with the NA hybrid sitting. Interviews were sensitive by their very nature. Not interacting with candidates in person was different to dealing with people on the screen in Committee meetings. It was difficult for the Members to connect with the candidates. It could also be misleading -- people could be reading from scripts while they were on the screen, for example.

The Chairperson said that the Members were speaking in the same direction. Mr Singh had suggested establishing the list of candidates to see where they came from. Ms Mente-Nqweniso had said the issues were with the hybrid setting. It was good to get this feedback, to plan far in advance before the interviews.

Mr Buthelezi agreed.

The Chairperson thanked the Members, and said the Committee was quite progressive in its decisions. The deliberations took care of what would happen on the matter of the actual interviews.
The short-list would be dealt with at the following day’s meeting. Documents had been sent to Members.

She asked about the state of readiness for the following day’s meeting, and what would transpire.

Mr Mbele said he did not want to side-line Members, but Mr I Morolong (ANC) had wanted to say something on the previous matter but was struggling with network issues.

Ms Dlakude said that the Committee was supposed to have a meeting the following day to short-list candidates for the AG candidate appointment. However, given the receipt of documents late the previous day, she proposed that as a public office supporting constitutional democracy, she did not want to make mistakes when dealing with such issues. She wanted the Members to be able to go through the CVs thoroughly, and satisfy themselves that the candidates who had applied and qualified, had been determined effectively. She suggested allowing the Members take the weekend off, up to the following week, to review the documents and do short-listing.

The Chairperson said that Members could also write their views on the matter in the chat line if they could not connect visually.

Mr Singh appealed to Ms Dlakude to consider that timeframes were tight to meet the requirement of presenting the Committee’s recommendations to the House. He had been through all the applications and CVs himself. He felt the committee that had done the short-listing work had done an excellent job. This was not to say that he agreed with all the options that had been short-listed, and he would submit his own suggestions that had not been dealt with. However, the 70-person list had been very easy to eliminate from. He suggested that his colleagues look at the list that night in order to not lose the weekend. There were other processes still to be done, such as informing the public and inviting comments on the short-listed candidates. He wished to finalise the short-listing the following day at the scheduled meeting, and avoid the burden otherwise placed on the administration staff.

Mr Buthelezi said the first question had been to see what the timeframes were for when the report needed to be finalised. Looking at the list, he had not been able to get what he had been looking for from the pool of CVs. Something was missing. He wanted help in determining whether or not it was necessary to provide additional time to go through the CVs properly. There was a National Executive Committee (NEC) meeting the following day. He was unsure of how much of a delay there could be. He wished the extension period to be taken over the weekend.

Mr Mbele said he had received no contributions from Mr Morolong, or other questions.

The Chairperson said there was a contribution in the chat from Mr Morolong. She read out his message, which suggested that as the Members would want to provide reasonable time for the public participation, he wished to extend the same gesture to Members of the Committee to peruse the CVs of candidates. This supported Ms Dlakude and Mr Buthelezi on their points.

She asked Mr Mbele to outline the time frame moving forward to determine whether the extension was possible. The interviews were on 18 August, according to her understanding. She thought there would be ample time.

Mr Mbele said he did not have a programme available to consult, but he took his cue from the majority of Members that an extension was preferable. As the Committee was at the end of the term, he would have to seek permission from the House Chairperson and the Chief Whip to meet during the constituency period. He was guided by the Chairperson as when to meet the following week for the rescheduled meeting.

The Chairperson appealed to Members to follow this determination. She asked that their requests for times and days for the rescheduled meeting for the following week to be submitted before noon the following day. The Committee would then know the following day when to meet the following week.

Mr Singh said he had made the earlier suggestion, as he was mindful of the time frame. He had no issue on meeting some time the following week. He had merely not wanted to put pressure on the administrative staff and public participation, but the proposal was fine.

The Chairperson said while the Committee was not meeting the following day, she asked for a summary of Corruption Watch, and all other stakeholders who had an interest in making sure the process was open and transparent, to be compiled. Members could determine whether they agreed with what had been sent to them by the admin staff the following day.

Ms Dlakude suggested that the following day’s meeting was to deal with the short-listing. Now that it had been approved to meet early the following week to review short-listing again after going through the CVs in depth over the weekend, she suggested they should not meet the following day.

The Chairperson agreed to this suggestion. She said that without the meeting, all that the Members expected the following day was the correspondence on the decisions taken during the current meeting, especially the information that was based on the advice of Adv Jenkins. Then the Committee would meet the following week.

Mr Singh, Ms Dlakude and Mr Buthelezi agreed.

The Chairperson asked Mr Mbele if there was anything else left to discuss at the meeting.

Mr Mbele wanted to clarify whether the Members wanted to meet on a particular day the following week. When going to the House Chairperson to ask for a rescheduled meeting, there needed to be specific day in mind.

The Chairperson suggested early the following week, unless Members wanted to suggest a specific day. She said that it should not be Monday, to disturb the constituency work that had already been arranged.

Mr Singh suggested Tuesday the following week.

The Chairperson asked if there was any disagreement. She then said to Mr Mbele that the matter was settled.

The meeting was adjourned.