Public Protector Interviews day 1

Meeting report

Opening Remarks
The Chairperson indicated that the Committee had some housekeeping to attend to. He requested the Committee Content Advisor to brief the Committee on possible questions for candidates that she had compiled.

The public broadcast was paused while the Committee Members discussed the suggested questions but resumed as the first candidate was ushered into the chamber.

Candidate One: Adv Tseliso Thipanyane
The Chairperson welcomed the first candidate, noted that the entire process was being made public, and requested Adv Tseliso Thipanyane, to make opening remarks.

Introductory remarks by candidate
Adv Thipanyane: I shall preface my motivation by citing the Art of War by Sun Tzu, who talks about the five qualities of leadership: Intelligence, Credibility, Trustworthiness, Discipline, and Humility. I believe I possess the five qualities of leadership; I have definitely been a servant of the public and my track record shows that I have appreciated the importance of humility. I qualify in terms of trustworthiness and intelligence but it is also about vision. Of course, the five qualities have to be properly balanced. At this point in time, the Office of the Public Protector needs to restore the dignity of the institution and serve the country. What it needs is someone with a proven track record of leadership, who meets the five criteria of leadership, as per the Art of War, to be able to turn things around. So my track record is there. I have been a public servant for a long time. I have served in Chapter Nine bodies as a CEO twice on the Human Rights Commission. I'm currently working at the Office of the Chief Justice as the Head of Legal. I have also worked with civil society organisations. I have been an academic; I have lectured in South Africa as well as the United States and I have published over 50 articles on human rights issues. I think my track record at the Human Rights Commission, both good and bad, has helped me because you cannot fly a plane just by having theoretical knowledge; you have to have a track record that shows you can fly the plane. I think, at this point in time, we need people with proven track records and proven abilities of leadership to fly this plane. We have seen in the past the challenges of leadership in each Chapter Nine institution. If Parliament appoints people who don't meet the five criteria of leadership, then the plane will crash, and it has crashed in many instances. And we cannot, as a country, at this point in time, afford to have the Public Protector crashing. The public needs to have confidence that it will be protected. This institution is very important in terms of advancing our democracy, in terms of making our people confident and with a strong belief in government. So that we can move from where we are, we need a Public Protector who will deliver and who will be trusted. And I do possess all the criteria - you have my CV before you. And lastly, as I have said elsewhere, one of the important challenges facing this country is the issue of corruption and poor facilities and, of course, this also affects human rights.

I have done a lot of work around the support of whistleblowers. I've drafted a Bill, a new Act. We call it the Whistleblower Protection and Support Act and we have given it to the government. And I think it has been used in some documents by the Department of Justice. Therefore, I believe that if I became the Public Protector, one of the things I would do would be to ensure that there was better support and protection for whistleblowers so that we can do better in fighting corruption and maladministration in our country and making our people believe much more deeply in our democracy and our governance.

The other point that I want to mention is that to succeed as a Public Protector, you have to have good stakeholder relationships with all the stakeholders: government, the public, as well as the various institutions and civil society. That is quite crucial because the Public Protector is not a big organisation; it has to work through and with other institutions, and my track record shows that I have managed to maintain those stakeholder relationships. But we need to address the internal challenges in the Office of the Public Protector. Staff members are very demoralised and it's quite unfortunate that due to a few incidences, the public has lost confidence. But if we look at the work that has been done, overall, there are good people in the institution and all they need is a leader who inspires them and also makes them believe. Secondly, we also have to - coming back to where I am now at OCJ (Office of the Chief Justice) - ensure that our complaints handling systems are also top-notch. So we would have to look into that to see how we can improve that. If the public makes complaints and you take forever to investigate, then you are in trouble and you undermine the trust in the Public Protector.

The Chairperson: Just one question from my side to confirm the disclosures you've made in the questionnaire. Is there anything perhaps that you wish to add, disclose or explain?

Adv Thipanyane: I confirm the disclosures and have nothing to add, but I'll be able to answer any questions if the Members of the Committee are aware of anything.

The Chairperson: It is now the opportunity for the colleagues to ask questions.

Committee engagement with the candidate
Mr G Magwanishe (ANC): I want to make a declaration that I do know Adv Thipanyane as the CEO of the South African Human Rights Commission. He reported to the Portfolio Committee on Justice and Correctional Services. That is the extent of my knowledge of him.

Mr Magwanishe: Adv Thipanyane, what is your understanding of the role of the Public Protector concerning the requirements of the Executive Members Ethics Act?

Adv Thipanyane: The Executive Members Ethics Act is part of the mandate of the Public Protector to investigate alleged or suspected abuse of power and conduct which can result in injustice and prejudice. Therefore, the Public Protector’s Act also requires the Public Protector to look into and implement the Act as far as the Members are concerned. And I guess the famous example of this is the Phala Phala Report.

Mr Magwanishe: Then what are some of the challenges associated with the implementation of the Executive Members Ethics Act?

Adv Thipanyane: I guess, what came out of the report, which is apparently going to go for judicial review, is the interpretation of that Act. Let's take the first part: to what extent are you conflicted and to what extent are you earning income outside of your mandate as an official under that Act? And I guess the court will need to clarify that.  You saw the same example with the Ngcobo Committee about which the public had big debates as to the proper understanding of that Act, but, in essence, there is definitely a need for a proper understanding of what that Act means concerning to what extent one is conflicted. And therefore, I think and hope, the courts will help to clarify that.

Mr Magwanishe: You have worked as an accounting officer. How will you manage the administration-executive authority interface, because now you will have been an executive authority, a CEO, and then you would be the Public Protector of South Africa? How will you manage that interface?

Adv Thipanyane: Let me start from an academic point of view. I've got an LLM (Master’s degree in Law) in Corporate Law, and therefore I understand and appreciate the importance of that division between the board and management. Secondly, I've been appointed to be a board member of SABC where I am also part of the governance committee and I chair the social ethics committee. We are very clear that we must stay in our lane. Now, as a former accounting officer, of course, I have had many experiences of challenges in maintaining that division. And therefore, I think I have enough experience to understand that, but also I've seen the negative impacts when that line is blurred. And I think the Committee under Mr Dyantji (Committee on section 194 Enquiry) has picked up those issues and what happens when you blur those lines. Therefore, for me as a potential Public Protector, I need to make sure that there is proper governance in the organisation because it is quite clear that to ensure the realisation of the mandate with staff members who are inspired, that is what we need. So about leadership, going back to the Art of War by Sun Tzu, a leader has to have those five qualities that will inspire staff members and ensure that organisations do deliver because most organisations collapse, whether it's political or otherwise, due to bad leadership, and a blurring of those lines.

Mr Magwanishe: I was looking at your CV and something that maybe you might clarify for me is your 2020 pupillage with the Gauteng Society of Advocates. You did that pupillage whilst you were still the CEO of the South African Human Rights Commission. The requirement for pupillage by the Gauteng Society of Advocates says you must not be in full-time employment. How did that happen?

Adv Thipanyane: Firstly, I declared. Secondly, the Gauteng Society of Advocates was running the programme after hours at night and on weekends. As a result, the LPC (Legal Practice Council) refused to recognise our certificates until it was taken to court and the court ruled that the pupillage that we did was a full pupillage.

Mr Magwanishe: When I was looking at your questionnaire, you said that you want to be one of the best Public Protectors ever. What do you think you would do better and what did other Public Protectors not do that would make you to be one of the best Public Protectors ever?

Adv Thipanyane: Actually, I had a 10-point plan, but I can't remember the points now. I'll try and go over them. The greater the power, the greater the humility: that's very crucial. But you have to have a vision, and that vision can only be informed, to a large extent, by experience. I've been in this field since 1996 when I was Head of Research at the Human Rights Commission, I became a CEO twice, and now I am with the OCJ, doing some work in Justice. So I have gone through the mill. I think I've been tested, I've made mistakes, received clean audits, and dealt with staff issues, so I have mastered that. But also my relationships with everybody have made sure that I've got good stakeholder relationships: with media, with NGOs, with everybody else. So I think I'm a person whom the people of this country can find confidence in that this person has shown, over the last 15 years, that he is a true servant of the public, and that he cares about the public, and my work speaks for itself. So as far as other issues are concerned, it is about looking at the mandate and seeing how best we can improve things. And I need to say - and I said this when I joined the Human Rights Commission, if you recall, in 2009, when we appeared before Kader Asmal. I was the CEO and we rated it as one of the best Commissions of the Chapter Nine entities, according to Kader Asmal’s report. So I think I have committed myself to that, and I have delivered, minus one or two things. So I think that with all my experience, my academic ability, my personality, my humility, and everything else, I can turn things around. But it will be crucial that I take the staff of the Public Protector with me; it is crucial that the public believes in us; it is crucial that we also work with all stakeholders because we do not have money, and therefore we need to leverage all these issues. In that sense, I think we can come back here and say, this was indeed one of the best PPs we have ever had.

Adv G Breytenbach (DA): I would like you to try and keep your answers as brief as possible while answering the question. You skipped a couple of the important qualities of a leader, but you said you couldn't remember them - we will forgive you. And now another list you couldn't remember, so clearly, memory is not your strong suit. You've had seven or eight jobs since 2005. Why is that?

Adv Thipanyane: I'm 60 years old now and so if you were to give people a five-year span, then, it might explain that. But I came back home in 1990 and was with the Centre for Criminal Justice in Pietermaritzburg. Then I moved to be a law lecturer at UWC because it was a good opportunity. When I was there, I got tenure, but I was asked to consider applying for the Human Rights Commission. So I left and joined the Human Rights Commission. That was where I stayed for the longest time, that was eight years as the head of research, and I moved but the Commission called me back and I worked again at the Commission, then I resigned and moved to the United States.

Adv Breytenbach: I don’t mean to interrupt you, but I know how many jobs you've had. I want to know why you keep changing jobs. Could you just answer that?

Adv Thipanyane: Well, looking for greener pastures, opportunities came up, but not because I was fired, or anything like that.

Adv Breytenbach: You are hoping to be appointed to a position of leadership in a very important constitutional institution. That office is currently deeply divided and conflicted. Briefly, how are you going to get that office working off one page, and working optimally?

Adv Thipanyane: Happy staff members make happy workers. I will need to sit down with my colleagues whom I know very well as I've worked with them for quite a long time. I would say, “Colleagues, we have a mandate to execute here. You know me, you know who I am, so let us move this ship together and see how best we can turn around all the mistakes.” That means we would have to study the reports, which have been raised by the Portfolio Committee during the impeachment process, and then see what can we do. But also we would have to consider how to get a public buy-in because, at this point in time, the public does not believe in us. So we need to get the public to believe that we can deliver. And also we must go to all the stakeholders to say, “Listen, we can work together to fight corruption in the country and to secure democracy.” So I think it's highly possible. They are good people; they are highly qualified. It's just that they've been subjected to a leadership system that is not so good. They have been there doing their work all the time. Let me just take you back: under Adv Madonsela, the Public Protector’s Office was highlighted as one of the leading institutions. Some of the very same staff members who were there then are there now. So it's possible.

Adv Breytenbach: What in your view is the one essential quality that you need to be an effective Public Protector? One.

 Adv Thipanyane: Humility.

Adv Breytenbach: And you think you have that?

Adv Thipanyane: Definitely.

Adv Breytenbach: What do you understand under the principle of legality? What does that mean?

Adv Thipanyane: Well, there's been a debate in the courts, between the administrative action and the principle of legality. So the courts have tended to use the principle of legality when they deal with executive power, and then administrative action when they deal with Parliament. But I think there's been a bit of confusion. The principle of legality is about you acting within the laws, within the spirit of the law, and within the spirit of the Constitution, and then the courts will have to decide. So let's say, for example, you take Chapter Nine of Section 181 of the Constitution which says that all bodies must act without fear, favour, and prejudice. So in terms of the legality principle, you will check whether the conduct is in line. So there have been several judgments which have outlined the principles of legality, to test and review decisions or conduct in the exercise of public power, to a large extent.

Ms O Maotwe (EFF): You confirmed earlier that you turned 60 this year, so if you become the successful candidate, by the time you finish your term as Public Protector, you will be 67. I'm not saying this because I suffer from ageism, but do you have a comment on that?

Adv Thipanyane: Yes, there is a need to ensure that we encourage future leaders and we promote young people as much as we can and that's what we are committed to, because they are the future. However, you cannot discount extreme situations like this where the Office of the Public Protector is in trouble and you need people who are experienced and who know what to do to turn things around. You cannot leave this institution to young people who have no experience. We have to think about the interests of the country and our people. So tough times call for tough measures. But if I become the Public Protector, I will need to make sure that we groom as many young people as possible to be the next Public Protector, because we need to start lowering the age. You know, when I went to the Commission, most Commissioners were retirees. We do need young people with energy and vibrancy.

Ms Maotwe: So, going to your CV, I notice that in 2018, you completed your LLM and you focused on the corporate funding of political parties. I'm going to quote what you said in your thesis: There is some conduct in the country that unregulated corporate political spending, which lacks transparency, and often excludes shareholder and stakeholder involvement has led to allegations of state power manipulation, abuse of state resources and corruption by corporations that fund political parties and activities. That was in 2018. Would you say this was triggered by the CR17 campaign which allegedly raised R1.2 billion for Mr Ramaphosa during the NASREC conference?

Adv Thipanyane: Unfortunately not. It was triggered by the case we had around PAIA (the Promotion of Access to Information Act) about who reports and why and the view was that political parties control a lot of power, and they can be manipulated, so they must be subject to PAIA. When I was writing the last page of my thesis, the courts ruled that PAIA is unconditional. So that was about how we ensure the values of the Constitution, transparency, responsiveness, and whatever. That was the main thing, but secondly, when you look all over the world, there has been regulation because of corporate political spending. Look at what happened last year: Glencore was fined $2 billion for bribing magistrates, judges, and presidents all over the world. So the corporates are very powerful and they need to be regulated. Everybody must be held accountable; everybody must be regulated. We cannot have political parties getting money on the side without the public knowing. We are voting for a party because we think we know who you are, but behind you, there is some billionaire who's telling you what to do and what has to happen.

Ms Maotwe: So while you were the CEO of the South African Human Rights Commission, were there instances where you felt there was undue political influence? If so, can you describe those instances and how you responded to them? And if you can, just give us specific instances because this is extremely important for us to know.

Adv Thipanyane: Yes. Well, let me put it like this: we did our work without fear, favour, or prejudice and there is nothing in my record at the Human Rights Commission that will show that I ever deviated from that. Now, of course, the Commissioners, you will recall, came from different political parties, but it was never one Commissioner on his own who made decisions. So when we make recommendations, they say yes or no, that's fine. One cannot discount that an individual Commissioner could try to bring his own perspective. But what mattered, in my time as a CEO of the Human Rights Commission, was that we never once took a decision that went against the values of who we were and we did our work without fear, favour, or prejudice.

Ms Maotwe: So one of the rules of the Public Protector is to remain accessible to the public, ensuring both the broader public and influential groups are catered for. During your tenure as the CEO at the HRC, AfriForum lost several cases, even challenging the binding powers of the HRC. How would you describe the relationship with AfriForum?

Adv Thipanyane: We were very clear as a Commission, at least I was as the CEO, that all South Africans are our shareholders and we must dispense our mandate to them, regardless of who they are and how they relate to us. So yes, AfriForum did raise several concerns about us. They went to the United Nations and said that we were racist. We didn't care about that. If they had come to us with a genuine complaint, we would have dealt with it. That was our motto and our vision and we've never departed from that. The Commissioner was never taken to task for making a decision which was unfair and unjust. But you asked me a question and to answer, when I joined the Commission in 2017, there was a court case where the former Chairperson, Advocate Mushwana, had made a finding clearing Mr. Fransman of Western Cape. And when I saw this thing, I said, ‘Hell, no, this is wrong.” And we said, “We're not going to oppose this matter as it is wrong and we do not subscribe to that kind of thing.” I hope I've answered the question about whether there has been a clear case. The second one was the case of the former Cosatu International Relations Head, Bongani Masuku. We said it was wrong so we went to the High Court and won but lost in the Supreme Court, then we went to the Supreme Court of Appeal and Mr Masuku had to apologise. So during my term, we stuck to the rules of the Commission.

Ms Maotwe: Advocate, I see you have served in the George Soros Foundation as a board member. Would you agree that those Foundations are used by billionaires as puppets to advance certain political agendas? What is your view about the Office of the Public Protector fundraising from organisations such as the Open Society Foundation? Those are the two questions. I'm just worried about time, so can you just summarise?

Adv Thipanyane: We are required to be independent and to do our work without fear or favour, so we must be careful from whom we get money. So when I was on the Soros board, I did feel a bit uncomfortable, but I saw the kind of work they were doing. However, after some time, I resigned because I was uncomfortable with how some decisions were made.

Mr E Buthelezi (IFP): My first question builds up on what Adv Breytenbach asked you. I assume that you're serving our government because it is a calling and not a career. However, you have changed jobs often. Would you dispute that you are a job hopper motivated by a desire for personal growth, as opposed to serving our people?

Adv Thipanyane: I would dispute that. I wasn't allowed to give reasons as to why I kept changing jobs. First of all, when I finished law school, I was very clear that I would not work in corporate; I've always worked in public service, at the university and NGOs. I've never worked in corporate. So I'm saying my work in public service has equipped me for this job, and I'm a committed public servant. If you look at my CV closely, you will see I've always worked in public service. I'm now a chief director, meaning I moved from level 16 to level 14 in the judicial service. If you call it job hopping, then I don't know.

Mr Buthelezi: One of the focus areas of the Southern African Institute for Responsive and Accountable Governance is good governance itself. Therefore, how do you envisage restoring not only the public perception and trust in the Office of the Public Protector but also those things that contributed to the section 194 inquiry?

Adv Thipanyane: Let me just go back to the five points of leadership: intelligence, humility, courage, trustworthiness, and discipline. It's all about good corporate governance. As a corporate lawyer, I know that institutions stand and fall in terms of how governance works; the same thing applies to political parties. So clearly, with my experience of being a leader, even though at an executive level, corporate governance is very important. So basically, all these values mentioned about leadership, I expect all these values to be respected by all people I work with, to commit yourself to the public, to protect the public of this country, and to work as effectively and efficiently as possible. So we need to make sure that we've got good governance systems that will encourage people to do well, dissuade people from doing badly, and also insist on consequence management if things aren't happening properly. I remember being accused by a former chair of not having sufficient consequence management, but it's fine.

Mr Buthelezi: My last question is about the poor majority of our country, and the most vulnerable, who should be protected by this Office, but who don't know about the Office itself. They only know the Public Protector himself or herself. For example, if our communities see a councillor, then they'll immediately see service delivery and will ask about issues of water provision and all the services that the council has to provide. But it is a different case with the Public Protector. How do you think you can breach that gap so that people know exactly why the Office exists?

Adv Thipanyane: Thanks for that. Every time I became the CEO of the Commission, it was tough, as was every time we came up with new slides to say that we needed to restore public trust. Now at the Commission, in my last five years, we raised the media value of the Commission to R400 million, as small as we were. So, we need to build awareness of the public by all means. Media is very important, but all our stakeholders and we've done it before. If you look at the history of the Commission, you will realize that we were rated much higher than any other Chapter Nine institution in terms of awareness due to our media coverage. Every week we were in the media: with good stories mainly. So it's something which was important for all of us. We would call a press conference and say to the media, “How do we work together for the good of South Africa?” We go to NGOs to say, “Comrades, how do we work together?” We would go to corporate organisations and say, “How do we work together?” One of the things I want to establish is a Whistleblower Protection Unit in the Public Protector’s Office to encourage all whistleblowers to come and work together and fight the scourge of corruption in our country.

Ms M Thlape (ANC): In response to the question on the key challenges that our country is facing, you say that the key challenges our country is currently facing are corruption and abuse of public power and public resources which will certainly threaten our constitutional democracy, the protection and promotion of human rights. And I found that you did not appreciate and acknowledge the socio-economic aspect of it. These are structural challenges, so, according to you, Adv Thipanyane, what elements need to be changed to ensure structural transformation in South Africa, and the role that can be played by the Public Protector in this regard?

Adv Thipanyane: I was head of research for eight years with the Human Rights Commission and my mandate was to monitor socio-economic rights. Every year, we send out questionnaires, so I'm very much familiar with issues of socio-economic rights. But since I had only a page, I had to highlight one. So if you look at corruption, the Constitutional Court has explained the impact of corruption and that corruption is one of the biggest threats to our country because it has many manifestations: it undermines socio-economic rights and social cohesion. It undermines service delivery; it undermines everything. So basically it is like a virus environment and, therefore, if we kill that, then the other issues will then get a lift. Corruption deprives our economy of monies that are required to apply for social services like health, housing, potholes, and stuff like that. That's why I put corruption there because it captures the essence of everything. So I did not forget socio-economic rights - I've been a socio-economic person, myself, for eight years. I've written many things on socio-economics.

Adv Thipanyane: So, in terms of the structural changes that you have referred to, definitely, we have a good constitution. The challenge for me is, firstly, how we implement those things. But, secondly, how we hold those in power to account. Maybe we have to look at Parliament itself. How does Parliament hold those in power to account and what kind of systems are needed?  It is about ensuring that we are able to hold those in power, in private and public, to account because at the end of the day, it's all about us. The private sector is using our national resources, so they must also be held accountable in some ways. So for me, apart from the issue of making sure that Parliament does its work, we also have to look at Chapter Nine institutions. I think there's a need for another Kader Asmal review here to look at this broadly and to ask exactly where we are. Are we getting value for that, because they are some of the main drivers, established to strengthen our democracy? So you don't have even by structure, you don’t have much but broad things so I don't have much to say, but we need to ensure that the structures that we do have, do work and do deliver. But how should we view Chapter Nine institutions? I think that there are too many and some of them are not doing such a good job. And we must see how we can make them more effective, Parliament as well, and also how we hold the executive to account and whom we appoint in those positions. It's also very important.

Ms Thlape: You're speaking about holding departments accountable, and issues of resources. Now the Office of the Public Protector, like any other institution, does not have resources in abundance. You will be required to prioritise resources and investigations. Which types of problems will you prioritise and what impact will they have?

Adv Thipanyane: Having been there (in public service) for many years and coming to the Committee complaining about money, I think it's also important for all of us to learn to use what we have maximally and effectively before we start saying we want more money because there is also a lot of wastage in public service. But secondly, we need to work together much more effectively. So for example, if the government was cooperating, we would probably reduce the caseload of the Public Protector by half. There would be fewer complaints about wrongdoing in government, and then we could use those resources elsewhere. But to come directly to your question, at this point in time, in terms of prioritisation by the Public Protector, we need to hit corruption and maladministration very, very hard. It takes the soul out of our people when they see people just getting away with wrongdoing, potholes, hospitals without beds, schools with broken windows. It discourages people throughout the country for which we fought. So I think, as a Public Protector, we have to protect the people and we need to protect people from the biggest threat facing them, which is corruption and maladministration. The others can come later. If you look at the level of corruption which is over R50 billion a year while people are going to bed without food and are without proper schools. It is because of corruption and maladministration. Of course, uncaring civil servants are a problem. You go to a police station, I won't say anything; you go to hospital, I won't say anything. But that is what we need to sort out. You are serving the public. That's why the Public Protector has a mandate to deal with acts of omission, which cause harm to the people of this country.

Ms Thlape: In cases of pressing high-profile cases and multiple community complaints, how will you strike a balance of resource allocation?

Adv Thipanyane: Yes, in running a company, you must make sure all shareholders are happy and so we do need to find a balance. The high-profile cases are important in setting a precedent, but that should not be our main preoccupation because we are not the only players in the field. Government is supposed to be doing its work; Parliament is supposed to be doing its work, so we're like catalysts. So we need to be very, very small. So we need to see what we can do. But I think for me, the Public Protector must be a home for the voiceless who have no power to go elsewhere. That should be the focus because if we lose that support, we have no in the country. Governments are formed to protect people and enhance happiness and therefore we need to make the people happy. When people are happy, then those people can also put pressure on all other systems. When people are unhappy, they switch off. That's why you have such a low voter turnout. So, the PP is very crucial in that space to get ordinary South Africans to believe that if they bring a complaint, something will happen. If they see a corrupt police officer, something will happen, a corrupt councillor, something will happen, but people are losing hope in the Republic, and it's very unfortunate.

Mr W Horn (DA): When I look at your CV, and you refer to academic articles, etc., it's quite clear that you have a solid academic foundation. And your CV also speaks to long years of service as an accounting authority, but I do not see - and I want you to react to the statement - any real experience in investigations, finding facts, and then applying the law which, as it turns out, is a crucial component of the role of the Public Protector.

Adv Thipanyane: Investigation is all over my CV. However, let me be a bit more specific. When I was the head of the Commission, in charge of the Commission, I had lead investigators, for example, in the unrest hearing in Alexandra and all those things came via me. So as a Public Protector, I have to make sure that I appoint people who do proper investigations and my legal acumen will ensure that we don't write silly reports, which will then be taken on review. But I'm also a lawyer and have done pupillage, so I've done research. I have done eight years of research and that is a massive investigation. How do we determine that there has been a violation? I instituted a process in the Commission that said all court cases had to come by the office of the CEO for approval, so I had to read the report and say, “Yes, go for it,” or “No, don't go for it.” Then I made a recommendation to my Commissioners. So I don't see any problem at all. With the investigators, I decide whether there's a violation or not. The work of the Human Rights Commission, to a large extent, is a bit like the work of the Public Protector, so if we have been investigators by accident, we can do it as well. It's just a matter of shifting human rights and putting something else in terms of the Public Protector Act. But also, just to make it fun, I have a BSc in Biology and Chemistry and I spent four years in a laboratory looking through microscopes, working with chemicals, doing investigations, and determining the results. So, I have two types of investigation, science and law.

Mr Horn: That was not exactly what I was looking for, but it would nonetheless be good to know that you will also be able to do biological investigations. The law is not an exact science and it will invariably happen that when the Public Protector investigates, weaknesses in the law might be found and even, given that the law is not an exact science, where interpretation of the law will be necessary. What, if any, is the authority of the Public Protector, firstly, to interpret the law?

Adv Thipanyane: I can give you two examples. When we investigate as the Public Protector, and write reports, which are subject to judicial review, it means we'll need to be a bit smarter ourselves by already influencing the law, interpretation, and whatever, and hope therefore the courts will agree with us or disagree with us. But at the end of the day, it's all about the building of jurisprudence and that's what we did in the Human Rights Commission when we took on the case of Qwelane, we lost in the Supreme Court, but we said, “No, we're not going to accept it.” Now the Qwelane and Masuku judgements are leading judgments in this country. So in the same manner, that mindset must be taken to protect the fact that we are the first in terms of interpreting all the laws that fall under us, whether it is the Executive Members Act or anything, because we are the ones who must make a finding. And so, in a strange way, the mistakes which the Public Protector has made before have helped us. I think there is no other country in this world that has such rich jurisprudence on the Public Protector and it’s due to the mistakes, but now we're benefiting. So we need to be mindful of that. My colleagues were saying that we should also ask the LPC (Legal Practice Council) to allow the Public Protector to have the same status as the Human Rights Commission where the Public Protector lawyer is able to take measures themselves to defend matters in court instead of going to outside advocates when internal staff know exactly what is going on. That's what the Human Rights Commission has been doing, so we can influence certain areas of law. And as you rightly put it, some of us get very worried we'll go to CCMA. You will not know that outcome and the same applies in the Supreme Court. So the law is uncertain, but that is right. It's about how we interpret it and how we develop it. And I think we need to be mindful that, apart from the work we're doing, we also have to contribute to jurisprudence, as far as our mandate is concerned.

Mr Horn: So, if I make this statement: “The Human Rights Commission is primarily tasked to build a culture of human rights and to defend and protect everybody's human rights, whilst the Public Protector, as a consequence of the famous ConCourt (Constitutional Court) finding, makes remedial action which stands on setting the unlawful aside? How does that influence your answer? How does the duty of the Public Protector to apply the law as it stands differ from the Human Rights Commission which is building a culture of human rights?

Adv Thipanyane: Let me say before I get to this question, the Human Rights Commission builds a culture of human rights, and the Public Protector builds a culture of accountability and respect and good administration. That's what we need to take this country forward. But coming to your point, I would say that, as Public Protector, we need to be very careful about how we write our reports. Knowing that they are first entry into the legal system if they are taken on review. So, if you look at those reports, certainly, they could be better. They must be written better. I don't think people there understand that their actions must be according to jurisprudence, it's not just about making a finding. So we must write those things properly, we must do proper research, and have a precise unit in the Public Protector to ensure that we're doing the right thing. So we need to put a little bit more effort into the understanding and interpretation of our Acts and not wait for the courts to tell us that we're out of order, and then we pay costs.

Mr Horn: My last line of questioning turns on the balancing of the differences between the executive authority and the accounting authority. So you left the Human Rights Commission because the then chairperson, Adv Mushwana, felt that you overreached into the authority of the executive authority. I have a sense that that was the underlying factor in your latest departure from the Human Rights Commission as well. If you become the Public Protector, how will you as the executive authority prevent yourself from trying to be the accounting authority as well?

Adv Thipanyane: As they say, you learn from painful experiences, they make you wiser and a wise man learns from the mistakes of fools. So I've been in this situation of corporate governance and who is who. It is a problem not unique to the HRC; the problems apply to political parties, government, and having been there - and that's one of the reasons why I went to law school to do an LLM in corporate law, just to understand that sense of corporate governance and that's where you learn there has to be a clear division between the board and management. Management should know its role and the board should know its role. Now, I can say one thing with conviction: I have never interfered with powers that belong to others, but I will tell my Commissioners, “I'm here to implement those powers of management.” But is this a perception because I'm very vocal and I express myself very strongly? If I disagree with you, I will disagree with you, but I'm not undermining you. I've never been charged with subordination, anywhere, because I respect authority because of its importance. The moment you mess up with that, you mess up your organisation. So I'm very particular about that. We're dealing with a case known as SABC, where a board member was alleged to have interfered in corporate governance. I am on the Governance Committee and we're dealing with that case and we are very clear that we will not tolerate the undermining of corporate governance.  It's a killer virus in an institution.

Mr W Wessels (FF+): Let me start with a complaint by a staff member or by staff members back that was lodged against you at the Human Rights Commission. That followed an assault by members of the Black Land First movement on yourself. The complaint had to do with those staff members alleging that you brought the South African Human Rights Commission into disrepute, although you were cleared of any wrongdoing, my question relates to your earlier statement that happy staff members are very important and you made it clear that the leadership of the staff and the Office of the Public Protector must be a very important role and aspect of the job. Would you not say that a complaint of that nature by staff members attested to some kind of problem that staff members had with you; that there was a trust deficit between you as accounting officer and staff?

Adv Thipanyane: The answer is a big, “No.” However, let me explain. In any situation, there will always be bad apples and you have to accept that there will be bad apples. And we deal with them accordingly. They will always make a noise wherever they want. Now, going to the case of BLF, we were dealing with BLF as there was a case of a complaint about hate speech and I was called by Buang Jones (an HRC investigator) to come and help him. Now, clearly, these guys had their own agendas as they came with cameras, and whatever. They began insulting us, saying that we were lap dogs and whatever, but I knew what they were up to. I had told my chairperson that we should try not to find ourselves embroiled with BLF because we know their agenda. But anyway, they began insulting us. We said the meeting was over and called security to take these guys out. Then some members came and they began swearing at us – they were swearing at me about my mother's private parts. I put my hands behind my back; I never did anything although I was assaulted by a woman and I was insulted, but we did nothing. They had two cameras and they took pictures and then they took my spectacles and then they went into a lift. I said, “Please help because I cannot be seen to be doing anything. And then they threw the spectacles on the floor but I was charged for bringing the organisation into dispute. So they went to cameras and stuff like that and found that wasn't true. However, when I was the CEO (at HRC) for the first time in 2005, I encouraged members to form a union. When I came back in 2016/2017, if you recall, the members had written to this Parliament saying that they were unhappy with the conditions in the Commission. So, when I got there, staff members were doing this kind of thing. Now you cannot have that as a CEO. So I said, “Guys, we must do things properly.” So, there were staff members who were unhappy with the change and they did all sorts of things. In five years, I've been to the CCMA (the Commission for Conciliation, Mediation, and Arbitration) six times and never lost a single case. There were anonymous complaints and complaints about corruption, which never saw the light,  so we understood that it was the nature of the work and you must deal with those issues and isolate them, but I can assure you now, as you will not see any complaint from members even though they have an opportunity to say, “Don't appoint him. This guy is a bad guy.” I would love to see anyone who would do that. So I will say I have led the Commission with integrity and I know my staff members love me. Since I left the Commission in May, some people have resigned from the Commission. How do you explain that?

Mr Wessels: You are very proud of your track record at the Commission. Is there anything that you would have done differently in your tenure?

Adv Thipanyane: Yes, I would have sensitised my principals about the importance of corporate governance. I do understand because the Human Rights Commission Act does not make a very clear delineation. So, for example, in terms of the Act, the CEO appoints staff members; Commissioners must appoint staff members. So we can say, “Okay fine, for senior managers, we will interview and recommend; you recommend for appointment,” even though, in law, we are the ones who must sign; just to try and find balance, you know. So, you have to appoint, even as the Public Protector, people who understand the importance of corporate governance and the divide between management and the board and alignment, of course, because staff members have to carry out the decisions of the board. But, if the board then tries to interfere in management, that's where things go wrong. It's very simple - you find some people are talking to one staff member here and one there, and then all hell breaks loose. So it's very important. Look at the complaints about the Gender Commission, the fights between Adv Mushwana and his previous deputy chairperson, and so on. It's all about people not respecting the rules of corporate governance. Stay in your lane, you are the boss, you instruct people who account to you. So why then would you want to go into what other people are doing? What are you paying them for? So it becomes fruitless and wasteful expenditure under the Public Finance Management Act (PFMA) if truth be told.

Mr Wessels: Let's come to something that you would have experienced at the Commission as well, but with the Public Protector it is a cause of concern where state organs do not implement remedial action. How will you deal with that?

Adv Thipanyane: [break in audio streaming from Parliament]

Ms M Lesoma (ANC)… and also a high level of expectation from the Public Protector’s office. Can you make a specific example from your 10-point plan that you promised you have in your back pocket? What strategic vision do you have to transform the turnaround time in the institution and how would you employ technology, noting that we are two countries in one - those who are affluent in terms of capabilities and network and connectivity, and also using IT? You did indicate that you've got a very good rapport with your stakeholders, the only stakeholders that you didn't acknowledge are the disadvantaged, the rural, and the poor. Hence my question because those are the ones that also tend to be marginalised in terms of what should be provided to them.

Adv Thipanyane: Technology is the future. In the Commission, a few years ago, we held a conference on the application of 4IR for human rights. But having said so, as the DGs are very clear as well, no one should be left behind. So we should never forget, and we were proposing that the state must make the internet a human right so that nobody gets left behind the state, and then we'll address that issue. But up until that happens, we need to be mindful that we serve a country that has very diverse rural areas. Sometimes there is no cell phone connection, so we do need to bear that in mind. And as I was saying, we need to have a mindset that all South Africans, including AfriForum, are shareholders of this company and we must treat them with respect, and we must take care of them because we need their support. We're using their taxpayer money to do with work and get paid high salaries to do the work, so we must not leave anyone behind.

Adv Thipanyane: As I was saying earlier on, one of the things we need to be clear on, as the Public Protector, is to embrace all those principles: the National Development Action Plan, SDGs (Sustainable Development Goals), to ensure that we take care of the voiceless, I also mean those in far-flung areas. One of the things we're looking at now at OCJ is how many South Africans have access to a court. How far is a magistrate’s court to most people? So what do we say about justice? So those are some of the things we need to address. So any structural change or strategy has to put that as one of the top areas because without the support of ordinary South Africans, there is no PP. Whether we like it or not, we just become a white elephant or maybe a black elephant, a white elephant is not politically correct. So that is very important. But we cannot also ignore technology because that makes us efficient. We need to make sure we have shorter turnaround times, especially if people come with a larger problem. They wait for years to get anything, and we can't have that. South Africans must believe that when they come to the Public Protector, they will get service that will change our systems. So even if you don't have enough money, you must partner with everybody from the media to government, NGOs, and whatever. And as I was saying, for me, I  want to push the issue of supporting whistleblowers. There are many whistleblowers in our country at all levels, under traditional leaders, and councillors, and if those people realize that their mandate is to ensure a better future for our country, and by voicing their concerns, they'll be helping us. 

Ms J Mananiso (ANC): I'm very pleased in terms of how you've been responding to issues and as a person who's identified himself as a public servant. So I have had the honour of listening to you about the issue of stakeholder relations, but I don't think you have touched on what Ms Lesoma asked on the issue of innovations and what you will bring in to ensure that there are strong stakeholder relations. So can you just give us more in terms of what is it that you will do better than the previous Public Protectors?

Adv Thipanyane: In 2008, when the HRC appeared before Kader Asmal, the Commission had a 65% public approval rating, because of what we were doing and the lessons learned from that can be replicated. What is crucial for the next Public Protector is to get a buy-in from all the people of our country, including the marginalised people, women, people with disabilities, etc. They must all see the Public Protector as their Public Protection. So we need to change our strategies and how we communicate and make them feel they belong because remember South Africans are very funny people. If I complain once and I don’t hear from you, then I walk away.  So we need to get these people back to say, “Here we are, we're here to serve.” So we'll have all sorts of interventions and communications, going out there, public outreach programmes, jumping off the back of other government departments to say, “Here we are.” Now that you're pushing. I would say that every year, the Public Protector should go out to the people and say, “Here we are.” So there must be that engagement and what I'm saying is that if you look at the CRL Rights Commission (The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities)  it says that at the beginning of a term, there must be a national Consultative Conference and again at the end of the five-year term, the Commission must say, “This is what we've done.” That's accountability. So we can't be chasing accountability elsewhere when we're not accountable. So we must be accountable to our clients, and our shareholders. Have we done a good job or not? Maybe even have the public score us and say, A, B, C, etc.  I see they score Ministers and say how they did. They must score us. But as I was saying, for me, the fundamental issue is that we show our humility; we have to believe that we're here to serve people. We must be transparent to the people. Three, we must be disciplined in carrying out our mandate. Fourth, we must act with courage. Five, we must be smart. There are shareholders, we need them. You can't run a company and diss your shareholders. Your company will plummet to zero. So just because we don't we don't have Chevron, and we don't know whether it has plummeted, we don't know. So we need to find ways of ensuring that our share value is up here, amongst the best institutions, not just here, but globally. I think we can be the best Public Protector in the world if we do the right things and have a very high share value.

Ms Mananiso: Advocate when you spoke on the issue of whether you are fit for this particular post, you said that Parliament appoints incompetent people. So do you have any story to share with the country in terms of one of the institutions to which you think parliamentarians have appointed an incompetent person? Just one?

Adv Thipanyane: Well, they say actions speak louder than words. So you know whom you appointed and what was the outcome and that means something went wrong somewhere. This one I know was public: in 2016, when I was not there, I was told the Human Rights Commissioners went to the Portfolio Committee and said that they did not want a particular Commissioner back. They were sick and tired of the person. So that's an example, but one did not have to go that far. You can tell or assess the quality of the appointments made by Parliament by the output of those people unless they got hijacked elsewhere. But if there's no hijacking it means you made a bad appointment, accept it, and remove the person. One last thing. One thing that concerns me is that when we come to the Portfolio Committee, normally it is the staff members who get grilled more than the principals. Now, if I were the Public Protector, I would love to come here and be questioned by the Portfolio Committee. What am I doing as the Public Protector? Is there a clean audit and other things? Where's my leadership? So we must have a new assessment sheet? What are the values, the five points of Public Protector? Intelligence, humility, discipline, trustworthiness, and courage? If you don't have it, then it is a yellow card and please go home.

Ms Mananiso: I want to allow you, Advocate, to tell the country one story about what you have done as an executive in any of the public spaces, that is still relevant and of which you can say: “This is what I've taught or this is my brainchild and this is what it is because of me.” What is that story that you can tell everybody so they know that if they appoint you, then they are going to get this? In less than two minutes.

Adv Thipanyane: There are many, but I'll highlight one. So when Jon Qwelane wrote an article equating gay marriage to marrying a goat, the matter came to the Commission and because of the mood at that time, people were not sure what to do.  I was upstairs and the next thing I heard that there were people outside who had marched to the Commission because we'd been delayed. So I said, “Guys, what is going on here? Why could you not make a decision?” It was still divided. So I said, ”Okay, fine. If I go down there, I want one commitment and that is that regardless of our confusion in the Commission, we're going to take this matter to court, win or lose.” We took it to court and were insulted by many people, including fundamental Christians who said we had the wrong values. One person said, “Chief, your father was a minister of religion. What is going on here?” But I said, “Listen, I work for the Constitution and we have to do this thing.” So we went to court and we won in the High Court. Then Mr Qwelane became the South African Ambassador to Uganda. Then I say, “Damn, no. How do we sort this thing out? So he applied for rescission from the Supreme Court. Then I left the HRC at that time, but we lost in the Supreme Court. When I came back, I said, “No, we are taking this matter to the ConCourt.” That judgment will live forever because it clarifies the whole notion of equality, which is a core value of our Constitution, as well as accountability responsive governance as well and transparency. That will stay forever in the history of our jurisprudence and it was me alone.

Mr Dyantyi: Maybe the first issue to raise with you is the four principles in the Constitution governing the Chapter Nine institutions. Can you quickly share those with us?

Adv Thipanyane: Section 181.

Mr Dyantyi: Section 181(2) to (5). If you have forgotten them, we can skip them. Don't waste time.

Adv Thipanyane: These are independent institutions and they must do their work without fear, favour, or prejudice. Then the organs of the state must assist these bodies to ensure that they are effective, and efficient, and also protect their dignity. There shall be no interference by anybody in the functions of these bodies. They are accountable to Parliament.

Mr Dyantyi: Accountable to the Constitution and the law, not Parliament. Let's proceed next as I don't have enough time. Still in the Constitution, section 193, which is what brought you here, is about the appointment of the Public Protector and other commissioners. It lists criteria as “a fit and proper person”. Can you tell us what you understand by “a fit and proper person”?

Adv Thipanyane: Well, it just means you must be a person… Actually, a quick answer is the five principles of leadership I mentioned. In a nutshell, it means you must be a person with commitment, integrity, knowledge, and skills to be able to lead this institution. I'm just giving you a very broad idea.

Mr Dyantyi: Okay, based on that, is Tseliso Thipanyane a fit and proper candidate in front of us here today?

Adv Thipanyane: I think so.

Mr Dyantyi: Why? Why are you frowning when I ask why?

Adv Thipanyane: Well, I've never been found to harm the people of this country, or the state. I've never acted irresponsibly in how I managed the responsibilities given to me. And my track record with NGOs shows I'm highly accepted. I sit on several NGOs. I'm highly respected.

Mr Dyantyi: Let's pause there. My next point is about the evolution of the Chapter Nine institutions. You have from the onset spoken about the Kader Asmal report, which was done in 2007. That report focused on how to fix these institutions, all these Chapter Nine institutions. In 2023, we had one example where the focus was not on the institution, it was on the person occupying that institution. What went wrong?

Adv Thipanyane: Well, apart from better appointments, I think Parliament could have done better by holding things to account and ensuring things don't get out of hand. Institutions account every year, so if there is checking every year, Parliament could have picked up the issues and not waited until five years later. So what it means is that we need to tighten our accountability systems over the principals of the Chapter Nine institutions. For the last 25 years, we've seen all sorts of issues in Chapter Nine commissions: the Gender Commission, the Public Protector, the Human Rights Commission …

Mr Dyantyi: Let's pause there. I'm just controlling the time; you control the content. My next point: there's something called looking back and planning forward and in the context of the public sector, we have what we call an Annual Report that helps us to look back and an Annual Performance Plan that helps us to look forward. You're applying to be head of the Public Protector South Africa, and I want yes or no answers. Before you came here today, did you read the Annual Report of 2021/2022 of this institution?

Adv Thipanyane: A little bit. I spent more time on the APP because I thought …

Mr Dyantyi: Okay, considering the APP, what is the budget of that office? You are here because you're praying to be the head of it and therefore you need to know what you what is it that you want to have.

Adv Thipanyane: Around R300 million. Also, I was attending a meeting of the Treasury two weeks ago where they were showing us that there might be budget cuts and so with the budget cut, it is around R300m plus.

Mr Dyantyi: And in the Annual Report that you said you read, what was the expenditure for 2021/22? Have you read that?

Adv Thipanyane: Shoo!

Mr Dyantyi: Let's leave that. If you remember it, you will come with it later.

Adv Thipanyane: They actually exceeded the budget and that's why they are getting an unqualified audit this year, because of what happened last year.

Mr Dyantyi: Thank you. Let's pause there. But you introduced, without being asked, a 10-point plan. You didn't unpack it and I don't even know a single point of that plan, but let me ask you to give me one point of your plan, If you're successful in this interview, is there anything in that 10-point plan about risk management and risk mitigation?

Adv Thipanyane: Yes, it is a 10-point plan that cuts across everything we do.

Mr Dyantyi: Okay, in your 10-point plan, you have risk management?

Adv Thipanyane: My template is based on risk management.

Mr Dyantyi: Just give me two issues that you have identified as a risk in that office that, if you were successful, you would put in place.

Adv Thipanyane: As mentioned earlier, we need to reduce the amount of money we're spending on litigation that has cost us an audit.

Mr Dyantyi: How are we going to do that?

Adv Thipanyane: As I was saying we need to make sure that when we issue those reports that they can withstand scrutiny and survive. That's why the HRC Commission reports were very clear. We never had numerous cases in court because we were very meticulous and did not want to be sued as there would be hidden costs.

Mr Dyantyi: What was the second one?

Adv Thipanyane: The second one was linked again to the audit. Apparently, the previous Public Protector spent money living somewhere. So it means our supply chain people must make sure that they don’t …

Mr Dyantyi: Let's pause there. Let's go to the next point which embodies and defines this institution. Police are known for arrest; the NPA for prosecution; what is the Public Protector known for? 

The Chairperson: What comes out first? Being the last point, please give us a brief answer to it.

Mr Dyantyi: I just want to conclude it, Chairperson. The SCA made a court order about a Public Protector having an open and inquiring mind into investigations. So I want you to comment on whether, as part of your plan, you would be doing about that.

Adv Thipanyane: That was actually the Mail and Guardian case. 

Mr Dyantyi: I'm glad you remember that.

Adv Thipanyane: The Public Protector actually gave us the Zondo Commission. Despite all the bad things, we should never forget that the Zondo Commission came through the Public Protector. Despite everything else, we should not forget that. And therefore we owe them something.

The Chairperson: Thank you very much. You're saved by the bell. I think we've now come to the end of this session. Let me thank you very much for the time that you have given us.

Candidate Two: Adv Kwena Tommy Ntsewa
The Chairperson introduced Adv Ntsewa and gave him five minutes to present himself.

Candidate Two: Adv Ntsewa
Adv Ntsewa: I am from Limpopo and I answer to the name Tommy. I hold a BJuris degree and an LLB from the University of the North then, now University of Limpopo. I also hold a Higher Diploma in Legal Drafting from the University of South Africa. I am a mediator, qualified through the Law Society of South Africa. I have been admitted as an advocate for the last 27 years, i.e. since 1 October 1996.

Introductory remarks by candidate
I entered the Public Service formally in 1995 when I was integrated into the South African police from the ANC and I was given the rank of Superintendent in the Police. That was when the non-statutory forces, the Homeland Police, and the other Police were merged to form the SA Police Service. In 1997, I moved on to the Office of the Premier (in Limpopo) where I was appointed as the Chief of Staff in the Office of the Premier and I stayed there for eight years. In 2005, I moved on to Anglo Platinum where I was appointed as a Legal Officer. In 2011, I came back to the Public Service and served as the Special Advisor for the Minister of COGTA (Cooperative Governance and Traditional Affairs) and was later appointed as the Director-General for Traditional Affairs. When the contract ended, I rejoined the Bar to practice as an advocate. My practice at the Bar has exposed me to the processing of difficult cases. People talk of big cases and small cases but all cases are the same for me. Whether it is a plaintiff seeking R300 000 or a plaintiff seeking R900 million, all cases receive my fullest attention because the client feels the same irrespective of the injuries they have suffered. So as a Public Protector, I would not view cases as big or small; access to justice should be common to all as the Public Protector operates within the rule of law. All are equal before the law and should feel and be seen as being equal before the law.

In my career, I have also served community service. I was chairperson of the South African Geographical Names Council which processed names of cities and places around the country and I am sure that many of you are from places with new names such as Mkhondo, Polokwane, Mbombela, and so on. That is the legacy that one has been part of and has led because I believe the names of places will be with all of us to eternity. Now that people are living in the newly named cities, that is a heritage that will carry forever into the future. I was part of that architecture; I was part of the building of that legacy. I also served in the National Heritage Council which is a body created by statute within the Department of Arts and Culture which serves to identify heritage sites, preserve those, and make sure they are kept for the future.

I have been a Trustee Chairperson in the MedShield Medical Scheme where I served to protect the interest of members and the medical Scheme. It is a community service that one does to make sure that all of those whose medical needs are taken care of and that the Medical Scheme responds adequately. I believe that trusteeship was served with responsibility. I was the trustee looking after the legal affairs of the Medical Scheme. I think I executed my duties well and we have not had any complaints. I am currently serving on the disciplinary committee of the Legal Practice Council. There we process complaints by members of the public against rogue attorneys or legal practitioners. You would know that there are various complaints by various people, particularly against lawyers who steal or embezzle compensation from the Road Accident Fund, from the Department of Health and we deal with that and recommend action by the Legal Practitioners' Council and in most cases, it is striking those kinds of legal practitioners from the Roll.

I'm also serving on the audit and risk committee of the Gert Sibande College. I chose to go into a continuing education college to serve there because I believe that we need to intervene at the lowest level in creating the necessary skills and making sure that the colleges of education can produce skills that are essential for the country because I believe that the country needs technical skills and not necessarily only the academic skills you find from universities. I believe that we need to ensure that the production of those technical skills at colleges, practical plumbing, and so on, those skills must be maximised and I chose to respond to the call to join the audit and risk committee to ensure that I'm able to contribute at that level.

The Chairperson: I didn't want to cut you short, but a lot of what you're saying now is in your CV. Just one question from my side. Besides having been a police officer (officer) between 1995 and 1997, have you been exposed to any investigative work?

Adv Ntsewa: No, let me say that the training on investigation is what I formally got when I was integrated into the police services. So that's where I was trained in detective work: gathering information, interpreting the information into intelligence, and then that information or that intelligence will then be used in visible policing to know where the crime hotspots are and to use that information, that intelligence, appropriately to fight crime.

The Chairperson: Do you confirm the disclosures you made in the questionnaire? If yes, is there anything else that you wish to add or explain?

Adv Ntsewa: There is nothing more to disclose than has been disclosed.

The Chairperson: Thank you very much. So now you will have the opportunity to respond to the colleagues on my right. Each colleague has eight minutes with you.

Committee engagement with the candidate
Ms Lesoma: One should appreciate that you had an interest in serving the country. Having said that, and I've gone through your CV, equally, you will have gone through the Auditor-General's reports on the Office of the Public Protector and also the issues that have been raised there. Having said that, we are in a situation in South Africa with limited resources, economically and socially, creating the fiscal challenges that we have. But in your introductory remarks, you made a very noticeable point for me. As a citizen with a history of activism, having served in various capacities in government, what interventions would you employ to undertake to advance the paradigm that caps the non-compliance in government and the continuous maladministration and corruption - because maladministration and corruption are not the same, but they look the same. Also what innovative mechanisms would you employ to ensure that the turnaround is expected (because it's not written anywhere), also profiling of those issues or categorising those issues of ordinary citizens, other than those who find expression in media interests or public space interests, as it were?

Adv Ntsewa: The resources - I've looked at the state of affairs at the Public Protector Office, and I think the key for me, or the major problem, is in the funding of the Public Protector’s Office. Various proposals have been made about improving the finances of the Public Protector, and I was myself thinking deeply about what can be done. Among the proposals that I thought I'd present to the Committee was that the R350 million that is being given to the Public Protector is definitely not adequate. But the proposal is that we may look at creating a special fund, a fund like you have with the Road Accident Fund (RAF), for instance, where there is a special contribution from the field. But with the Public Protector, we create an anti-corruption fund, or a good governance fund, depending on whether you want to be positive with the name, where each department can contribute, for instance, 1% of their budget into that fund which can then fund all anti-corruption or anti-maladministration funds, including the Public Protector. I know that the Zondo Commission has also proposed that there should be a special body to fight corruption. But my sense is that the anti-corruption fund that the Zondo Commission proposed should be merged with the Public Protector somehow to ensure that the fight against corruption is consolidated into one body and the funding is not spread out because I believe that if there are so many bodies, all with the aim of fighting corruption, we will find that the effort is scattered and therefore ineffective. So my proposal regarding gathering resources is that a special fund be created, where all the departments and all the SOEs (state-owned enterprises) contribute a percentage of the budget to that fund to fund the war on corruption, the war on maladministration.

Adv Ntsewa:  Now, regarding cases, my sense is that there is no big or small case, whether it's a case against the President or a case from Mdantsane, those cases must be graded and treated as of equal weight. So that you do not fall into the default of treating cases that involve high-profile people with urgency and then in the process, marginalise those that are complaints from the public. So you need therefore to give them a similar space. As s I was saying, the law is the same whether it's a small claim case or a case involving a member of the executive. So, for me, those cases would be treated equally. Obviously, the resources may not be equally deployed given the sizes of cases, but I would want to see all cases, from big or small persons or about big or small persons, equally prioritised. 

Ms Lesoma: The RAF example is a wrong example in my view. I'm sure that you are also aware of the gaps and abuse of the RAF and that a person would have been affected by the accident and also the end user and the processes, but I'll leave it to you. Nevertheless, I think it's quite a wrong example for me, but that is my position. Section 182(4) of the Constitution of the Republic does say the Public Protector is accessible to all citizens. Achieving this mandate can be challenging sometimes. Also, with the question that I raised, I just want you to amplify that. Do you appreciate the fiscal constraints? You have suggested a special fund, but it doesn't address the fact that South Africa, as a country, has a fiscal challenge in terms of disposable money. I want to go to using technology, but you've got the two communities, one with connectivity and all those who are in the rural areas, so when you respond, you must be mindful of that because they are also putting their hopes in the Public Protector.

Adv Ntsewa: I have read the reports of the Public Protector, including the APP, and I see that they are also proposing that each department must pay for the investigations that are undertaken against them as we have with the Auditor General of South Africa. If a department is audited, the department carries the expenses for the audit. So that's another innovation that I think I would look at and explore what is possible. And together with what I proposed regarding a special fund, try to match them.

Regarding access, Adv Ntsewa pointed out that former President Mbeki once said there is a second economy and a first economy. Now you would find that if you focus on digitalising access to the Public Protector, you may find yourself marginalising the majority of the people of South Africa in the rural areas who are not able to send electronic information. I've seen this in the National Student Financial Aid Scheme (NSFAS) where students in the rural areas are currently unable to upload their information for their appeals when appealing against funding and so on because they are in the far-flung area. So that's the problem of digitalisation. Now, the thinking that one has, is that you need to exploit the fact that I mean since 1994, we now have community radios, which are focused on specific communities. Now, I would partner with the community radios, and community media, and make sure that the Public Protector then extends his or her reach to those communities through their community stations, but I'm also thinking that the out develop a campaign that I call “Public Protector meets the people” where the Public Protector will go to various provinces, organising what politicians would call imbizos, but I call it “Public Protector meets the people” where you will then have spent time in each province, where people then have access to the Public Protector directly, but also ensure that the offices in the provinces are enabled so even without the national office descending into provinces, they are themselves able to visit communities through those public meetings and enable people to present whatever grievances they may have. At the same time, for the elite and those who have access to resources, strengthen the digital arm where people can then submit their grievances, submit their complaints digitally without having to travel to Pretoria, and so on. So there should be a balance between the rural and the poor, the rural and the urban, the poor and the rich, and all that so that's what I will do and will be doing as the new Public Protector.

Adv Breytenbach: I see you are an ardent reader. What are you reading?

Adv Ntsewa: I've been reading the book on former President Thabo Mbeki; I have read I've been reading about Malangane in “Little Suns’ (Zakes Mda). I am currently reading “Takalane” about life on the farm and many more, but you said three.

Adv Breytenbach: What do you understand by the principle of legality?

Adv Ntsewa: It relates to the rule of law and that all of us are equal before the law. The law must be accessible to each and every one irrespective of one’s status in society and the law must be seen to be fair, to be non-discriminatory and all of us should feel equal before the law and it must be seen by others as such. Once that is interfered with, then the confidence in the legal system dwindles and if that is allowed to go on then it breeds chaos.

Adv Breytenbach: That is awkward because my next question is what do you understand by the Rule of Law?

Adv Ntsewa: So I've sort of pre-empted it.

Adv Breytenbach: Yes.

Adv Ntsewa: So, I have already dealt with the rule of law. And I think that relates also to the legality aspect. I will also refer to the fact that once some case is introduced into the legal system, it follows that the process should not be interfered with. There is no bigger person or bigger individual who has a bigger office that can interfere with the due processes that those cases have to follow. Because, as we may have seen in the past or may perhaps even see currently, where you will find that dockets go missing, and so on, where people with money or bigger influence, interfere with the legal process. So you would want the due processes of the law to be allowed to take their course, without fear, without favour and with no prejudice coming in and interfering with that process. Constitutional self-efficacy is founded.

Adv Breytenbach: The Constitution says that South Africa is founded on the premises of the Constitution and the Rule of Law. What do you understand by that?

Adv Ntsewa: Prior to 1994 we had Parliament being the sovereign lawmaker, and all the law was subjected to the sovereignty of Parliament. But as we know, since 1994, the Constitution has become the main law and all laws are subsumed into the Constitution.  As Judge Chaskalson said in 2000, all laws that we have in the country must be subject to the Constitution and anything that is not in line with the Constitution is therefore invalid and unlawful. Even the judges as they interpret the law, they must interpret that from the basis of the Constitution as the basis of all law. That, therefore, underpins the rule of law, as I explained earlier. Whatever is not subject to or in accordance with the Constitution is therefore deemed invalid and unlawful. So, all such conduct that is outside the constitutional confines becomes invalid and unlawful, should anyone dare to act outside those norms.

Adv Breytenbach: You're hoping to be appointed to a position of leadership in an office that is very important constitutionally. The office is currently deeply divided. How do you propose to get this office working optimally as quickly as possible?

Adv Ntsewa:  I think as a leader you need to rally your forces to focus on the strategic objective of the office that you're dealing with and the objective in the vision of the Public Protector is to eliminate corruption, maladministration, and impropriety and you need to rally all the forces around that objective. And, unfortunately, those not willing to be rallied around that objective will have to give way for the office to run smoothly. Now, the mandate of the Public Protector is very clear. As I said the Constitution reigns supreme.

Adv Breytenbach: You have one minute: How are you going to get the office to work optimally?

Adv Ntsewa:  Okay, so get staff to focus on the work at hand, make sure that no one is distracted and no one is partisan.  Remove the partisanship that may have been there in the past, and make sure that all are focused on the target and the strategic objective of the office, which is outlined in Section 182 of the Constitution.

Ms Maotwe: You're a member of the audit and risk committee at Gert Sibande and you are a member of the NSFAS tribunal for appeals. Given these experiences, how do you view the call by students in higher learning institutions for free education?

Adv Ntsewa: I read somewhere that the concept of education, taking people to class, began officially in Finland somewhere and the purpose was to produce workers that would be able to satisfy the employer in the capitalist society at the time. Now, given the change of times, education must always and everywhere, be responsive to the challenges of the times. We have been through colonial education: me and you would have been taught about Jan Van Riebeek as the beginning of History in 1652. So we need to ensure that we teach our young people that there was life before there was life before van Riebeek and Europe came to know about other continents. So we indeed, need education, that responds to the current situation, and our youth are entitled to be taught what is relevant so that they can impact the future. So I agree with the decolonisation of education, relevant education and education that is responsive.  I agree with you.

Ms Maotwe: Suppose you become the successful candidate, can you give us the three main risks that the Office of the PDP is facing and how you intend to mitigate the risks?

Adv Ntsewa: I think as Advocate Breytenbach said earlier, among other things, she said, it's a division of staff. So I think for us to be able to move forward, we need to deal with that division, raise the morale of staff and make sure that they are not distracted by particularly partisan politics. And they need to focus on the issue at hand. But secondly, I think it's the funding, which I've already spoken about. We need to make sure that these issues on funding are crystallised and discussed at the highest level to make sure that the Public Protector is able to intervene and can be decisive in ensuring that the work of the Public Protector is about access. People see the Public Protector as an elite organisation, based perhaps in Pretoria, seen normally on TV. So you need to make sure that you are able to reach out to the peripheral and far-flung areas of the country to make sure that the Public Protector has an impact and is accessed by all.

Ms Maotwe: Your last two public service roles were associated with ministerial or political offices before you went on to private work. So, while you've mentioned, through your correspondence, that you remain committed to remaining free from political bias, if you get appointed, how would you address concerns about your prior close proximity to politicians, particularly at a senior level? And how would you manage and ensure that there is no undue influence?

Adv Ntsewa: I found myself working in those environments, but as I said before, in 1995, I was integrated into the SA Police Service, and in the Police Service you deal with people as they come, irrespective of your political alignment. And for me, I've been trained as a lawyer and I know that there are instances where you represent a particular claimant who may be against the government and then the other way round. So that's part of my training - to be able to act fairly, reasonably, and honestly and all that is ingrained in my training. So even as I got involved in the struggle against apartheid, it was driven by the understanding that there is what is fair, what is unjust, and what is not good. And that propelled me to get involved in the justice struggle. So, in that context, my political alignment of the past should not, in any way, influence my decisions today as has been demonstrated currently in the kind of work I do and in the structures, that I serve in. There would obviously be different stakeholders coming from various political persuasions, but when it comes to that work, you don't look as to whether the student comes from EFF student command or ANC Youth, or DA students, and so on. That doesn't feature at all.

Ms Maotwe: So, in your response to the challenges facing South Africa, one of the things you've listed - it's not the only thing - is that you've identified that you've got a problem with the abuse of power by public representatives. What did you mean by that? Can you delve deeper into that and give us practical examples where you faced a situation where there was political influence or abuse of power by politicians?

Adv Ntsewa: I come from a rural area. What I see happening is that, despite the case of CASAC (The Council for the Advancement of the South African Constitution) against the Ingonyama Trust, ordinary people continue to pay extra taxes to traditional leaders. It’s called a levy that they are paying for the right to occupy or permission to occupy the land that historically belongs to them. I see that as a continuous neglect of duty on the part of the government in particular because it is a court order and the ramifications are across the provinces. So the fact that that court order is not being implemented, for me, constituents an abuse of power by those who could intervene to just make sure that rural people also can claim a piece of land and say, “This is my land. I live here I'm entitled to it. It's my ancestral land.” Because most of them only have permission to stay and I've seen Traditional Leaders willy nilly taking away the ploughed fields, taking away the land that belongs to people.

Mr Buthelezi: I've got very few questions and very pointed ones. Firstly, I want to build up on the question that has been already asked here in terms of the exposure of this office to political interference. You have assured us that you are a strong person in relation to the absolute integrity that is required from a candidate. Can you just refer us to one instance where you have proved yourself that you are strong and not easily influenced, practically?

Adv Ntsewa: I've chaired the South African Geographical Names Council. There was an incident when the town Tzaneen was up for renaming with the communities and at that time, the MEC responsible, made a pronouncement that the name would be named Mark Shope which pre-empted the process. And as chairperson of the committee at the time, based also in Limpopo and close to the Premier. I informed the MEC that it was not the right way of doing things because by pronouncing that this town would be Mark Shope, he was overruling all the processes that had to be followed. Indeed, when communities met, they reaffirmed their name, Tzaneen, and said it is an African name for a basket as the geographical landscape resembles a basket, and they rejected the name Mark Shope so, I impress upon him that it is important to follow processes, irrespective of where you are in the hierarchy.

Mr Buthelezi: Is that the same scenario where you were requested to withdraw as the chairperson?

Adv Ntsewa: No, that one was a different one. That was about the renaming of Makhado. So the case came before us, and we accepted the case after they had taken the matter on review in court. And indeed, the High Court in Pretoria, said that the consultation process was inadequate and the order was that we should go back and make sure that there is adequate consultation. And that was in the process of developing the jurisprudence around section 33, of the Constitution, Administrative Justice and I'm very grateful for it. So obviously, those who were against the change of name said the advocate must go, but I went in back to them to speak to them.

Mr Buthelezi: Just to test your honesty, in any of your jobs, have you ever come to a point where you have to knowingly go against something that is impermissible and what was that?

Adv Ntsewa: I have never done something that was impermissible deliberately.

Mr Buthelezi: My last question: How do you think you can use this office, if you are given a chance, to advance the agenda of our country in terms of the past, and also address the socio-economic challenges that are faced by our people?

Adv Ntsewa: Apartheid, on its own, as a system of government, was based on a corrupt system of government that favoured some against others so that on its own, that was corruption.

Mr Buthelezi: Don't explain. Just say how you're going to use this office to advance the agenda of the country in terms of the two issues.

Adv Ntsewa: To use the office, would be to, without fear or favour or prejudice, go for any source of corruption, go against any source of monetary institution, wherever it rears its ugly head without fear or favour, irrespective of the position and influence of the particular paths involved.

Ms Thlape: One of the issues that you indicate that you will address is that contempt of non-implementation of court orders by various spheres of government departments would attract unsolicited investigation, and if found to be such, shall be deemed maladministration. Now, we talking here, with you the candidate for an institution that has struggled over the years with a backlog of cases and here you want to do some voluntary work somewhere, running unsolicited investigations. How will you reduce the turnaround time of complaints, including backlogs and, in addition, how will you achieve this without compromising the quality of reports?

Adv Ntsewa: The Constitution, and the Act, of course, allow the Public Protector to, on its own initiative, initiate investigations because obviously, there may be instances like the one I've just referred to - the court case against the Ingonyama Trust. For me, that's maladministration. But that's a discussion for another day. The Supreme Court rules call for mediation as another way of resolving disputes and intervening in areas where people are not agreeing. So I'll look at mediation. I can mediate between parties to attend to whatever gaps have been identified. Now regarding turnaround time, this also involves the issue that we have in the funding of the Public Protector as we may have to look at increasing the number of investigators to address that backlog. I hear that the Public Protector deals with about 40 000 cases a year and we have to make sure that such cases are dealt with and finalised. Now, we may have to look at resolving the issue of funding, look at bringing in more investigators, but, with mediation, I believe that some of the cases can be resolved without even having to go to court and engaging in a protracted process. The Public Protector’s awards or remedial actions are binding, which means that when the Public Protector issues a remedial action, then there will be timeframes within which to act and failure to act will be accompanied by a concomitant sanction appropriate, to the non-compliance. So that will deal with the timeframe and the response times.

Ms Thlape: What would you say is your leadership philosophy? Do you believe you have the necessary leadership skills for this position?

Adv Ntsewa: I think my track record speaks for itself. In my CV, you will see I've led various organisations and structures that I've been in. And in all instances, I know that I have done my best to act with honesty and to avoid conflict of interest. So in all, I believe that I'm fit and proper to take up the position of Public Protector and serve my country, given what I've already demonstrated, in the short life that I've had in the public service and elsewhere, where I've intervened decisively. This reminds me of a situation when I was at university. We had a problem with rape; young women students were complaining of rape every weekend and we decided at the time - I was chairperson of the Housing Committee in the SRC - that the best way was to integrate residences because we didn't have the necessary resources for policing and so on. But, if men and women could come together, they would, as they do in their homes, guard each other.  We believed the young men would guard the girls and, indeed, the crime of rape on campus reduced drastically after integrating the residences. That prompted the renaming of the residence because most of them were named for men or vrouens and so on.

Ms Thlape: I'm trying to get your leadership philosophy. Maybe let me ask you this: How would you say those who have worked with you describe your leadership style?

Adv Ntsewa: They would describe me as fair, equitable, honest and principled.

Ms Thlape: The leadership style?

Adv Ntsewa: And perhaps the style would be collective leadership, participative, involving all in a democratic way, so shall we say democratic as I think that covers participation and fairness.

Mr Horn: Adv Ntsewa, you've already touched on the need for impartiality and objectivity in the role of the Public Protector. Now, of course, we sit with a situation that in terms of our Constitution, having served 10 years as a Member of Parliament would also qualify somebody to be the Public Protector, so I must, at the outset, pretext my question by saying that I don't think the drafters of the Constitution ever contemplated that nobody who's been politically involved could ever serve as the Public Protector. But in your specific case, you have deep roots in the struggle and specific involvement in the ANC and ANC-aligned bodies, so how will you prevent that history from putting you in a situation where your impartiality and objectivity can be questioned?

Adv Ntsewa: Being involved in the struggle was a duty of all young people of my time. At the time all of us had to be involved and I got involved at the very young age of 15 and I found myself in detention under the state of emergency in 1986. I'm very proud and I cherish that history because I had to be there, but I understood, from the beginning, that the country that we were fighting for and the society that we wanted to establish would be a society that should be fair to all, where everyone would govern, where everyone will have the right to participate. We understood that not everybody would be aligned with the ruling party and that is why, when I was still a student, at Turfloop in 1992, when the Harare declaration of the ANC was published, it included the concept of the Ombudsman, and that was also in the ready-to-govern document of the ANC. As a young law student, I read that with enthusiasm, so we were already doing comparative studies, and those introduced us as young law students to structures like the Ombudsman, which meant that there should be people who would be non-partisan and who would serve in those structures. I am open to that and was even as an ANC activist. So the ANC, in a way, opened me to the possibility that despite your political membership, you can still be non-partisan and serve the public, without fear, without favour and without prejudice. You need to make sure that happens. There would be judges and the Public Protector and others who would have to serve the people without fear, without prejudice and without favour. And so, the political alignment, the political prejudice will not, in my case, given the training that I've had since I was 15 years old, interfere with the value of my judgment or the way I simply take each case as it is presented and make a fair ruling without prejudice. So that defines me.

Mr Horn: In the questionnaire and specifically your answers to question one, which was why you believe you are the right person for the job and then from number 114 onwards, you give answers to the effect that you really want this job because you want to, as you call it, build an efficient and effective public service. So, apart from dealing with maladministration, what is the involvement of the Public Protector in building an effective public service?

Adv Ntsewa: Corruption or maladministration sometimes happens without being conscious of it. So I'm saying that I will want to collaborate with other institutions like the National School of Government, in ensuring that the training of people on ethics, and so on, is maximised and making sure that people know what is wrong and why it is wrong, because, sometimes, people commit these things unconsciously. So you need to maximize training and make sure that those who have the responsibility to train do it correctly and effectively. So for me, the training of public servants will contribute towards building effective public service. As the national development plan says, corruption is an impediment to building the equitable society that we want to build; it is an impediment to a better life that we want to give to all the people with public service at the centre. So as we build together a public service that is efficient and effective, it means the work of the Public Protector, will become less and less. I mean, if there's less corruption.

Mr Horn: Can you explain to me the concept of making yourself guilty of corruption with an unconscious mind.

Adv Ntsewa: All I'm saying is that ignorance is a problem. So, if you follow the cases, even though they are not about corruption, since the Nkandla case, you'll find that the Public Protector was found to have been ignorant of the law and to have ignored various provisions and so on. I want to take it that all those transgressions that led to the section 194 Committee finding the Public Protector incapable or incompetent, were not done consciously and deliberately. You will find that it was because of lack of exposure, lack of training or lack of knowledge that those offences were committed. So I'm saying that sometimes, by omission, you can commit the crime.

Mr Wessels: I also want to go to the answers to the question. One of your answers says that if you were the successful candidate, you would extend the focus of the Public Protector to local government. How would you do that and what do you mean by that?

Adv Ntsewa: I will give an example of the Auditor-General reports. I think in the last Auditor-General's report almost 60% of municipalities got qualified reports and other disclaimers. Now, for there to be disclaimers, it means there has been unlawful expenditure, unauthorized expenditure and maladministration generally for the Auditor-General to reach a stage where it gives a disclaimer and I would want those responsible to be brought to book because if you are allocated millions of rands in public money and you have represented yourself to the public as qualified for appointment as CFO or municipal manager. For you, as a result of your management of the finances that have been allocated to you, to come out with a disclaimer, that should attract some action on the part of the Public Protector and we need to do it quickly, immediately after the Auditor-General has issued the report. The Public Protector needs to zoom into those, which is what I mean about unsolicited investigations where you do not need to wait for complaints. People may not even understand that their municipality is embezzling funds or mismanaging funds, so they may not complain. But given the position we're in, we're able to see that there's a problem and it should be addressed.

Mr Wessels: The Public Audit Act was amended in 2018 to give certain powers to the Auditor-General to do exactly that: to keep accounting officers accountable and to apply sanctions but the Auditor General was failing to do that. Why do you think the Protector is in a better position to do that?

Adv Ntsewa: About the Auditor-General failing to do certain things, I must say that this issue of maladministration and corruption is so big that all of us have to focus on defeating it. That is why, in the questionnaire, I refer to collaboration; the Public Protector may have to collaborate with various agencies, such as the Auditor-General, the police, the hawks and so on, to make sure that wherever corruption and abuse rears its ugly head. All of us are responsible for anti-corruption.

Mr Wessels: A serious issue currently at the local government level, if we stick to that, is the fact that accounting officers are in contempt of court orders and this is really a problem because nobody does anything about it. You spoke about non-compliance with the remedial actions of the Public Protector. Given the fact that even accounting officers are in contempt of court orders and nothing happens, how will you deal with that situation concerning remedial action?

Adv Ntsewa: The courts have a way of enforcing their orders. But as it is, the Constitution says the judiciary and the Chapter Nine institutions must be assisted by various branches of government to be effective. So it means that the Public Protector should be able to monitor that. Wherever maladministration is concerned, and the courts have ruled on that, that should attract the Public Protector’s attention. I know that the Public Protector may not look at all the cases in all courts, but wherever maladministration and impropriety are concerned, the Public Protector should develop an interest and be able to follow up. If the Minister of Police and the Police Commissioner are not acting on that court order, it should be possible for the Public Protector to intervene, raise the alarm and alert whoever is responsible. Failing to act, and, as I said, an omission on its own is an offence.

Ms Manganiso: I think one of my questions, about NSFAS, has been asked. What is your understanding of fit for purpose?

Adv Ntsewa: Fit for purpose involves understanding what needs to be done and having the capacity to fit into the structure and execute what the structure requires. Often structures are built, but you then find that people who are appointed into those structures to execute those functions are unable or lack the capacity to do that. I have said that I'm fit and proper. I consider myself fit and proper because of the training and exposure that I've had throughout my life, particularly with regard to the public service in its various forms. So fit for purpose, therefore, means that you've got the capacity and capability to execute what the structure is meant to do. So, in the case of the Public Protector, the Public Protector is meant to combat corruption, maladministration and impropriety and to act without fear, favour or prejudice. And as I've demonstrated, I have done that already. And I believe that I still have the energy and the propensity to do that, going forward, serving as a Public Protector.

Ms Manganiso: I noted on your CV that you've been an activist from an early age. So what's your take in terms of the status quo of Chapter Nine institutions in South Africa? Are they doing what they are mandated for constitutionally, or they do just comply in terms of the awareness of people believing that they are there for them?

Adv Ntsewa: Some time ago, the late Minister Kader Asmal wrote a thick report on the effectiveness or efficiency of the Chapter Nine institutions. In his report, he proposed that several of them need to be merged because most of them will find that their functions are overlapping, e.g. the Human Rights Commission and others that are about rights, civil rights and so on. So, it should be possible for them to collaborate and merge the budget. Because if many of them are pursuing the rights of people as enshrined in the Bill of Rights, it should be possible to merge some of them so that we maximise output. But of course, that is not the function of the Public Protector because the Public Protector doesn't make legislation. The report was before Parliament, so I think, as has happened in the case of the Reserve Bank against the Public Protector, you don't want the Public Protector to be found drafting laws and proposing how Parliament must do its work. But I think that collaboration of some of the Chapter Nine institutions could actually yield better results and I'm mentioning, specifically the Human Rights Commission, perhaps the Gender Commission and CL Rights Commission. I have worked with the CL Rights Commission in the past as Deputy Director General of Traditional Affairs, and I found that even the budget allocation at the time, I think it was about R100 000, but it was not much and they definitely were not able to intervene decisively where the rights of a religious or cultural community were involved. If they were, for instance, integrated into the Human Rights Commission, perhaps the efficacy and effectiveness could be improved.

Ms Manganiso: If you were appointed to this position, what would your special project be?

Adv Ntsewa: My special projects would be to identify areas where interventions are particularly necessary, such as the implementation of court orders against municipalities. The focus area will be the rural communities, as I said, most of them live as if they are second-class citizens. They've no rights to property in the first place; there is no land that people can call home because in the rural areas, even though there is a title deed, the land is owned by the community and is held in trust by the chief. Traditional leaders in those areas regard the land as their own. I think we need to intervene and give the rural people their titles to the land where they were born so that they can be able to transact based on the land so they don't have to have permission to occupy the land and then have to pay the kind of levies that people pay in the rural areas to traditional leaders. There are only three spheres of government: local government, provincial government, and national government. This thing that Traditional leaders can issue decrees as if they are the government and deal with the land as if they were the government needs to be interrupted somehow. So in collaboration with others, I think the Minister of Land Affairs and Rural Development and the Minister of Local Government and Traditional Affairs should be involved and there should be some action from the Public Protector that I would facilitate if I were Public Protector.

Ms Manganiso: In a minute, your understanding in terms of conflict management and conflict resolution.

Adv Ntsewa: Well, I'm a lawyer, I'm a practising lawyer. We resolve conflict disputes every day in court. So that's another way of resolving conflict. The other way is through mediation. engaging people, people resolve on them. So alternative dispute resolution is through engagement. That's mediation, arbitration. Otherwise, the courts are different. In all disputes Very much.

Mr Dyantyi: As a takeaway I want you to read the report of the section 194 Committee as I might not say some of the things you've just said above. But the first point I want to ask you to talk about is your understanding of the Public Protector institution. What is its main focus?

Adv Ntsewa: In the beginning, the origin of the Public Protector is said to be - I don't know if it's true - but …

Mr Dyantyi: Let's make it quick. Police are known for arrest and the NPA is about prosecution. The Public Protector institution, is it about investigation or prosecution or …

Adv Ntsewa: It is about the investigation of maladministration and impropriety.

Mr Dyantyi: So the Constitutional Court in the CEIX case made a finding that the Public Protector had a flawed method of investigation. That happened after what we call the “Mail & Guardian” case. Judgment by the SCA indicated that there needs to be an open and inquiring mind. And, in fact, Justice Jafta explained what that means and I want you to help me with that. It must be open to all possibilities, etc. but he raises two contrasting issues: that it must not be unduly suspicious, but also not be unduly believing. How would you go about trying to balance that, as you are praying to be the Public Protector?

Adv Ntsewa: I've read the judgment. The long and short of that statement is that the Public Protector must act without prejudice because prejudice means you already have certain ideas.  For example, Mr Buthelezi has a long beard, so you assume he must be … if you look at his situation, and without even going into it, already you're prejudiced. You develop certain ideas before hearing the case. So when a case is presented to you, it should be possible to just say, “Okay, this is the case that is coming my way. I don't know the context. I don't even want to know the context until I go into it as that is when I will come to understand what it's all about.”

Mr Dyantyi: So in other words, evidence must lead you. Exactly. You have spoken a lot about you being fit and proper but the Constitution doesn't define what fit and proper means. It just says this person must be fit and proper, must be a woman or man and so on. But in a case law in the General Counsel of the Bar versus Jiba and others, the court begins to define what fit and proper is. Can you share with us your understanding and say a bit about that case law - just the principles?

Adv Ntsewa: So, fit and proper means firstly, it will deal with your qualifications, perhaps academic and all that. But that is not the sole criterion because people are able to act without prejudice, despite their academic qualification, so fit and proper therefore will centre around the ability to act honestly, without prejudging things, the ability to be fair to those whom you will be dealing with.

Mr Dyantyi: That's my second invitation when we're done with this: go and look at that case which does have integrity, dignity, honesty, and so on. I was smiling when I saw that you seem to have read the Annual Performance Plan. I hope you have the previous annual report because you were speaking about the budget of R350  million. Have you understood it is a programme of R350 000 and yet it has an outreach programme, which is supposed to deal with ordinary citizens and not just the elite? How would you fix that? This is a Public Protector, not a protector of the elite and so on.

Adv Ntsewa: In the beginning, you have to deal with what you have. But as I said, I've seen the proposal by the Office now on the possibilities of aligning towards how the Auditor-General South Africa works where the investigated department or the particular department must pay for the services that the Public Protector offers and I am saying that that is an idea that we can explore. I have proposed in the beginning to present the possibilities of creating an anti-corruption fund.

Mr Dyantyi: You can pause that thought because I've taken note of it, so don't repeat it. My next point is still on what you have studied. You spoke about 40 000 complaints. Did you come across who the top five contributors of complaints are in the Office of the Public Protector? And I'll tell you, one of them is Home Affairs. Who else in terms of the departments?

Adv Ntsewa: I've not done that study, but I suspect Local Government, COGTA and …

Mr Dyantyi: Don’t guess. As you're hoping to be the new Public Protector, come October 2023, did you come here with some kind of a plan that you can share with us? Just say yes or no.

Adv Ntsewa: No, no, I have ideas. Among others, I've already been thinking deeply about how we expand access. How do we expand funding? How do we collaborate with the National School of Government and other institutions I've identified? 

Mr Dyantyi: One of the things that the country lacks is what is called risk management. We have no risk target around issues of infrastructure or the next disease after COVID, and so on. But let's bring it down to the Public Protector’s office. What will be your first two risk management plans that you would put into practice in that office, having studied the Annual Report and the APP?

The Chairperson: One minute please, Advocate. 

Adv Ntsewa: I think the turnaround time of cases because the longer the case takes, the less confidence it gives to the public. People start to lose confidence. As was said, an office divided and low morale of staff. People must jack up. I think the public image of the Public Protector’s Office has suffered a great deal. You need therefore a competent, capable person who will say to the public, “I'm here and I know what is to be done. Let's get to work and have community offices open now. We are no longer going to be spending time in court. We will be dealing with the issues that the public complain about.”

Mr Dyantyi: We will watch this space if you are successful.

Mr Magwanishe: What is the biggest number of people that you have supervised?

Adv Ntsewa: In the Office of the Premier, I was managing about 120 or so and I was also responsible for Traditional Affairs so I had to secondary supervise the traditional leaders who were also answerable to the office. In COGTA, the staff in the Department of Traditional Affairs was about 100. In NSFAS and other structures, I'm acting as a board member, so I would not say I am managing people. The highest number would be over 100 in the Office of the Premier.

Mr Magwanishe: How did you keep them focused?

Adv Ntsewa: It is said that when you are at the top, you manage two levels below. I was a Chief Director, level 14, so you have to make sure that you manage at least two levels from yourself. So the directors were reporting to me directly. I would make sure that I knew how the deputy directors were doing at their level, without undermining the level directly accountable. But you would want to go deeper and understand what they're doing and be able to reach out to them to get them motivated, to get them aligned with your thinking. So, I was making sure that I was not in an ivory tower, sitting at the top and waiting for reports; I would get involved.

Mr Magwanishe: What is your understanding of the role of the Public Protector in respect of the requirements of the Executive Members Ethics Act?

Adv Ntsewa: The Public Protector will be given more powers in terms of legislation. Now, the Executive Ethics Act gives the Public Protector more to be done in terms of what can be investigated in the code, and you find that the Public Protector has to become involved as mandated by the Public Protector Act itself and the Ethics Executive Ethics Act.

Mr Magwanishe: What are some of the challenges associated with the Executive Ethics Act?

Adv Ntsewa: I think non-disclosure of benefits. I heard that there are instances where benefits are not disclosed. I suspect that conflict of interest. If you do not disclose, then you will find yourself entangled in a conflict of interest because the reason for non-disclosure sometimes will be because the person wants to benefit from gifts and this and that. I think it is a big challenge for public office bearers. And we need to ensure that we encourage people to see disclosure not as punishment, not as a burden, but as a duty. Then we stand a better chance of avoiding that conflict of interest and of course confidentiality. I think people should be encouraged to know that if you are given the responsibility that this is a secret or the government is stratified differently, you need to keep to that confidentiality because otherwise even things that are not supposed to be disclosed, get disclosed by people. And because of that disclosure, things are mixed up. It's not good for good governance.

Mr Magwanishe: But how will you deal with the issue of the executive administration interface because you would be the executive authority?

Adv Ntsewa: The Public Finance Management Act delineates the role of, for instance, the CFO regarding tenders and so on and what is supply chain management. The Public Service Act also is very clear on the role of the executive authority as against that of the administration, your DG, and so on, delegation of authority, and all that. So, all these things are very clearly delineated by legislation, but because we are dealing with human beings, people would want to circumvent the requirements, mainly for malicious intent. So, that is why I was saying earlier that we may need to collaborate with the National School of Government to ensure that they emphasise whenever a new administration comes in, a new MEC, or new Ministers come in that there is a special arrangement to take them through so that we do not assume that they know what is to be done. We take them through so that when they default, we are able to come with an axe.

Mr Magwanishe: That is externalizing it, except my question is about you being the designated authority as the Public Protector. You have a CEO who is the head of administration.

Adv Ntsewa:  Yes. I would respect those rules as I have outlined. And in addition to that, you have the King Report, which provides guidelines for every manager. You do not only have to read the Public Service Act and the PFMA, but you also need to broaden your knowledge in terms of management issues so you do not interfere in the operations of the CEO.

Mr Magwanishe: I'm not sure whether you have applied your mind to this issue. Over time, we have experienced tensions between the Public Protector and the Deputy's activities. How will you ensure that there is a healthy working relationship?

Adv Ntsewa: I have referred to delegation of authority. So as we work on the delegations, each of us must know what each has to do because if we do not know our rules, then this is definitely going to be a summit. So let's eliminate them as delegates. If someone then decides to undermine the delegations, then that's something else. But if we do proper delegations of authority, then the conflict will be managed.

The Chairperson: Just one last question for myself. How would you mitigate tension that may arise between different state institutions, state institutions that are mandated to perform certain functions in terms of their own legislation, for example, the Office of the Public Protector wanting to overlap into the mandate of the Reserve Bank and the Reserve Bank saying to space office of your Public Protector wanting to overlap into the role of the officers, exams, this is not a space how do you deal with a situation like that? because there is a potential conflict, when it comes to the exercise of the mandate of the Public Protector, visa vie the mandate of the other agencies of these two institutions that I've just mentioned is an example

Adv Ntsewa: In the examples that you've given of actual conflict, that is a reason. And I think the courts have already pronounced on that. It's about understanding the law, that there is separation of powers. As a Public Protector, it's not within your powers to do to make laws.  As we know, in the case of the Reserve Bank, the Public Protector wanted to draft some no on what the mandate of the Reserve Bank should be, and so on. And the court indeed frowned on that. Because the mandate of the reserve in Section 182, as expanded by the Public Protector. So once you start to want to draft laws, you want to go on this as a coach into other ones. Yes, one case where you want to. I mean, it's clear that if public property tax affairs of individuals can be made public, you will be encroaching on the rights of privacy. And so you need to therefore as a Public Protector, know the law. I mean, that's, that's the starting point. And understanding, interpreting, and applying it.

The Chairperson: We've come to the end of the session.

Candidate Three: Adv Oliver Jobe
The Chairperson: Before us is Advocate Oliver. We will give you just five minutes to briefly tell us why these Members should consider your name for appointment as Public Protector.

Introductory remarks by candidate
Adv Josie: The position of Public Protector is quite an important position in this country if you look at its constitutional mandate, and if you look at the legislative mandate. If you look at my career in the public service and also in the private sector, I've always been committed to promoting the public interest. And that's one of the things that attracted me to this nomination. And that's the basis on which I accepted the nomination. If I look at my career over the last 30-odd years, I focused a lot on a similar type of work to that which the Public Protector does. That would include, for example, the application of the law and various laws and, in particular, forensic investigations. If I look at the Office of the Public Protector, the various areas have done, but there are also a few areas where they haven't done extremely and that is as we see from the various court decisions, in the area of investigation. And if I look at my track record, that's the area where I can add a lot of value. And also, as I said, and I'm going to emphasise it again, I’m a person who's committed to the public interest. If I just give you another example my last sort of tenure at the Competition Authority where I was for 11 years. One of the big aims of the Competition Authority, in addition to competition issues, is promoting the public interest. So, I find that to be very attractive to this job. And if you look at my CV,   I have all the credentials having worked in the Justice sort of environment for so many years, knowing both the law and also on the forensic side,  having the governance experience and the leadership experience for this job. Most of all, I am a team player, I'm very people-orientated; I can work with teams, and I'm able to motivate teams so that we can get the best out of them. So that's also another area where looking at the Office of the Public Protector, the incumbent is facing an s194 inquiry and so I am sure that the office morale must be low there at the moment. It will require somebody to motivate staff and that's an area where I am quite skilled. I can mention some cases that I worked on, and I worked on some very complex cases in this country. Just to mention one case when I was in the NPA in the DSOs (Directorate of Special Operations - the Scorpions). I led the top 200 projects - we arrested the top 200 criminals in the country. And when I was on the Commission, I led one of the biggest cartel investigations in this country in the construction sector in 2013. So I've a track record of working on all cases.

The Chairperson: And do you confirm the disclosures you've made in your questionnaire and is there anything you want to add or to explain?

Adv Josie: I don't think that I have any further disclosures that would be a conflict. Just to iterate currently, I work as a non-executive director, so I do sit on a lot of audit committees and sit on one board, but if I'm successful in this position, then I will have to relinquish those. And I'm willing to willing to do that.

Committee engagement with the candidate
Ms Thlape: I must say you have extensive experience of over 26 years. My interest is in you being a former Deputy Commissioner of the Competition Commission. I want to tap into your experience related to what we're here for today. How can a Public Protector contribute to the economic transformation and the concentration of the economy based on that experience?

Adv Josie: The role of the Public Protector, if I take a step back and look at, the commonality between the Commission and the Public Protector, and some of the learnings that I gained in the Office of the Commissioner, but I'll come to that.  They both have a very similar public interest rule. You look at merger cases, for example, and you will find a deep understanding and promoting of the public interest, things like unemployment and promoting transformation, for example. So that's in common with the accountability role as the Commission holds firms accountable; the Public Protector holds the executive accountable. So that's the one commonality, then you look at the investigative capacity of the Commission: it's very similar to the Public Protector because the Public Protector has very strong investigative capacities. But in addition to its role in promoting awareness, it's got that investigation capacity. If I look at the previous Annual Reports of the Public Protector and its Annual Performance Plan, I will say about 10% to 15% of the work is investigation. And we find that one of the areas where the Public Protector has not done extremely well is on investigation. I'm sure there'll be a question later on why that is so, but the investigative role is the very common area between the Commission and the Public Protector. The Commission, over the last 20 years, has been very successful with investigations, especially of cartels and if you look at the investigation that goes into cartel cases, it is about the abuse of dominant cases. I start with the rich experience that one gains from that kind of work. So that will hold me in very good stead in trying to get the investigations to another level.

Ms Thlape: And we get you also served in the Scorpions which had multidisciplinary capabilities and some people feel its dissolution resulted in a weakness in law enforcement agencies to track complex crimes. There's a culture pervasive of non-compliance in government. What will be specific interventions that can be introduced by the Public Protector to massify the investigative capacity to expeditiously tackle mismanagement?

Adv Josie: Your question is twofold. Let me answer it this way. The first part is: How can one bolster that accountability? One of the weaknesses in the Public Protector’s office, and this is not to sort of attribute any blame to anyone personally, but it's the way the legislation has been set up.  There's probably a need for an amendment. If you look at the remedial action of the Public Protector from about 2016 onward to 2023, there's only 13% compliance with remedial action; 65% of the remedial action of the Public Protector has not been implemented. Yes, we know after 2015 with the DA and EFF case when the Constitutional Court declared findings or remedial action binding, we find that there was a whole lot of litigation at the time in terms of judicial review of the Public Protector’s reports and remedial action. But if you look at the implementation, the Public Protector, especially when there is non-compliance, has relied a lot on the civil process and they rely a lot on Parliament assisting to hold public departments accountable, and that has not been very effective. For me, what would be more effective going forward, is looking to amend the legislation so it becomes an offence, very similar to the PFMA where financial misconduct is an offence.  That would be a greater incentive for public departments to comply so that we get to that 65% non-compliance. We can have an incentive for public departments to comply. So that's the one part of the question. And then you need to just remind me now of the second part. 

Ms Thlape: The second part was: how will that help you to introduce, or massify, the investigative capacity to tackle the mismanagement issues speedily and expeditiously?

Adv Josie: Even the Public Protector, in the midterm review of the strategy in November last year, said one of the things is that there is a skills deficit when it comes to forensic investigations. And looking at my background, I've been in forensic investigation for more than 30 years. What I liked about the use of recruitment in the DSO is that they had very focused recruitment on finding the people for the work. So, the same thing needs to happen for the Public Protector. Look, at most of the cases where the Public Protector has not been successful in court, including the SCA and Constitutional Court - a lot of the investigations taken there were not successful on the procedural side, where the investigations were not objective, where they didn't gather the evidence, they didn't analyse the evidence correctly. So that was one of the issues. As an incumbent, one of the things that one must look at is the value chain, the investigative and the litigation value chain to see exactly what the shortcomings are in that value chain, do an assessment of the shortcomings, and then design a plan to try and find the people for those positions.

Ms Thlape: Okay, now, with all that, the elephant in the room here is the accessibility of Public Protector South Africa to your far-flung rural areas. How will you ensure efficient accessibility of the Public Protector South Africa to the rural people in underdeveloped areas?

Adv Josie: There are two ways to answer this question. One must be very mindful that, with the current funding, the Public Protector can only do so much and that's the one side of the equation. The other side is partnership. I looked at all the documents yesterday and I don't think the Public Protector has done extremely badly in that area. It has done fairly well over the years but look at the last 10 years and how they managed to engage with more and more people and look at some of the success stories. In good governance, we look at some of the roadshows. I look at how, for example, the Public Protector implemented drop boxes - that was a very good idea to expand the contact points. So, the Office has done extremely well. What needs to happen is the officials need to start thinking a little bit out of the box and remember that complainants are not necessarily only employees of the government. Complainants are sometimes people who work for the private sector, for example. Now, let me give one quick example of how the PP can leverage the private sector. Look at the banking industry, for example, they have a very good co-ordination model. They have the South African Banking Risk Information Centre. So, for example, the Public Protector can start to look at engaging with those sorts of agencies to see how we can tap into that kind of market and try and use the banks to promote the Public Protector. So that will be the one, then, on the social media side, they can start to look at using social media a little bit more. And then you can start to look at, for example, technology like artificial intelligence. They have so much data.  There are thousands of organs of state, similar to Parliament, that have oversight over all those organs of state, and so does the Public Protector. So the Public Protector can use a lot of organs of state to help promote the awareness of the organisation. Then if I go back to the Constitution, to chapter three …

Adv Breytenbach: Before I start, I know Mr Josie. We worked together at the NPA, and I have no particular concern about prejudice or otherwise in this matter.

Adv Breytenbach: Can you explain to me what you mean when you say would like to see the Public Protector Act amended to make non-compliance an offence? And then you can refer to the PFMA, but briefly. Remember, I've got eight minutes and I have other questions.

Adv Josie: At the moment, the Public Protector relies on its own processes for obtaining compliance with remedial actions. So the Office would, for example, go to a civil court to try and implement that. It is not a criminal offence at the moment if you don't comply. That's one of the reasons why there's been such non-compliance. When you look at the like, for example…

Adv Breytenbach: That’s fine. Are you aware of, just approximately, how many successful prosecutions there have been in terms of the PFMA?

Adv Josie: No, there haven't been many in terms of the PFMA, but at least it's a criminal offence and you can still rely on it. In practice, it hasn't been extremely effective.

Adv Breytenbach: That answers my question. What do you understand by the principle of legality?

Adv Josie: The principle of legality - you can look at it in terms of the rule of law. If I look at the Public Protector’s mandate - let me give you an example to kind of put it in context. It means that if they conduct an investigation, they're doing it in terms of the law. So when they go beyond the remit of the law, then it contravenes that principle of legality or the rule of law.

Adv Breytenbach: What do you understand under the rule of law?

Adv Josie: The rule of law is obviously that we look at behaviour, look at conduct, for example, if you are deciding on whether conduct is legal or illegal, then you look at the rule of law to see whether people are complying with the rule of law, the legislation and they are complying with the laws themselves.

Adv Breytenbach: The Constitution says that the Republic of South Africa is founded on the supremacy of the Constitution and the rule of law. What does this mean?

Adv Josie: It means that the Constitution is supreme and, in addition to the Constitution, there will be other obvious rules of law and other legislation that comply with the Constitution.

Adv Breytenbach: You are hoping to be appointed to the position of leadership in an office that is very important constitutionally. The office is currently deeply divided and conflicted. How do you propose to get that office working optimally in a short space of time?

Adv Josie: That's a very important question. I did, to some extent, allude to it.   At the moment, there are two sides. One is the internal side and one is external. Let me speak to the internal side first. There is no doubt that the staff in that office must have low morale at the moment. I can't imagine that the morale would be high at the moment.  The one thing that I am quite adept at is working with people. I enjoy working with people and I'm a very good team player. I do well in that area. For me, there needs to be two types of intervention: firstly, a targeted intervention on the wellness side, a group intervention to try and get the staff to another level, to get them back to understanding and recommitting themselves to the vision and mission of that office and why that office is so important. That's the one part. And then we don't stop there; we continue on a very sustainable basis with the wellness programme to make sure that staff are always at the level of morale needed to commit themselves to that office. That's the one side of it. The other side of it is that there are a lot of estranged relationships between the Office of the Public Protector and various stakeholders, including Parliament, and the incumbent in that Office needs to examine issues with the key stakeholders, identify who the key stakeholders, why the relationships have been strained and start to rebuild those relationships because the Office of  Public Protector, on its own, cannot address, for example, the NDP ( National Development Plan 2030) objectives. The Office needs to be working very closely with Parliament. If I just looked at the objectives of the Sixth Parliament, one of the objectives is to enhance oversight over organs of state. That's the role of the Public Protector as well. So for me, those relationships are key.

Adv Breytenbach: The Competition Commission has a policy of first thorough the door when investigating an offence. They offer immunity to the first who comes to their office as long as they tell on their friends. Yes? And they don't mention in their policy that that doesn't include immunity from prosecution. Do you think that's misleading?

Adv Josie: No, I don't think that's misleading. Firstly, competition law is administrative law. It's not offensive in the criminal sense. That's the first thing. If you look at cartel offences, it's not easy to detect them. It's probably one of the most difficult ones to detect. These are like private agreements; people could be sitting in a bar, and they could be agreeing on things. So, it's quite difficult. Throughout the world, that is a global practice as immunity has been far more successful.

Adv Breytenbach: You misunderstand my question. My question is not whether it's fair or unfair to offer immunity. My question is whether it is fair or unfair, not to mention, that the Competition Authority is not offering immunity from criminal prosecution. You can stand there and spill your guts but you have no immunity from criminal prosecution.

Adv Josie: You have to remember that criminal prosecution is not in terms of the Competition Act. I understand the question that you're asking me; I'm just answering it differently. It is very different to prosecution in terms of criminal law. Remember, they are giving immunity from the Competition Act. So it's completely different.

Ms Maotwe: Where are you from? You have two different addresses on your documents: one says Durban and one says Centurion.

Adv Josie: I was originally from KwaZulu-Natal and I relocated to Centurion around 1999/2000.

Ms Maotwe: But we have two documents that we received almost at the same time and there are two different addresses. Why is this?

Adv Josie: Remember the question asked: Where were you born? So I was born in Durban but in the CV I have given where I live now. So Centurion is my current residential address.

Ms Maotwe: What does it mean to you to be free from political party affiliation?

Adv Josie: To answer your question, there are two aspects to it. There's a tangible aspect and there's the intangible aspect. So let me speak to the tangible aspect. First, it is a person who is not involved in politics and will not be involved in a political party, who doesn't have a senior position in a political party, who does not openly support any political party or the views of a party, etc. It is somebody who is very independent. Now, to give you an example, my entire career, if you look at my CV you will see I've always been in roles where I had to be independent. Look at forensics – forensics is by nature independent. If you look at the five lines of defence in corporate governance, forensics is in what we call a top-level assurance provider, which has to be independent. The second part is what goes beyond having any affiliation with political parties -  it's one’s state of mind, which is not always tangible. But that's an important part because it talks to the very nature of whether people are going to be independent or not, whether there is going to be a conflict of interest in the way they conduct themselves in their particular role or not. Now, I learnt this in the private sector because often you'll find that people will focus a lot on declarations about conflict of interest, etc. but forget about the actual person and how they express themselves in the decision-making.

Ms Maotwe: It's very interesting because you were born during apartheid and you've never engaged with or participated in politics. Why?

Adv Josie: No, I've never had an interest in politics because my career didn't take me in that direction. My career has been committed to the public interest. I have always enjoyed the public interest. I enjoyed working for the government, I enjoyed working for the private sector and still, I have no interest in politics.

Ms Maotwe: Okay, you were recently short-listed for the position of Electoral Commissioner. Do you believe you're suitable for this role of Public Protector? Are you considering roles in Chapter Nine institutions at this particular stage in your life? Or is there another motivation that is driving it?

Adv Josie: If you look at where I am in my life with the grey hair that I've got, you can see I'm quite experienced. I'm at a point where I've got more than 50 years of experience. This country, and this is my personal view, requires good leaders. I have put my hand up; I’ve raised my hand and I'm willing to contribute to the wellness of this country, to the future of this country, to the next generation. I've got the experience and I've got the track record and therefore I put my hand up.

Ms Maotwe: So, we've seen your rich experience in competition law, and the Competition Commission alleges that several things, including those in Europe, conspired to manipulate the South African Rand. However, no arrests have been made to date. What's your perspective on this? And I'm asking you to gauge your understanding of abuse of authority and undue influence. Do you believe that such issues arise only from political parties or party politics?

Adv Josie: I'm not sure we understand your question fully, so will you correct me if I'm going in the wrong direction? In that particular case, they are already before the Tribunal and there have already been quite a few applications in that regard. Very soon that matter, the banking case, goes on trial before the Tribunal. So I believe the Commission has been very committed to the case. I was still working in the Commission when we initiated that case, so I've been kind of following it. So I honestly believe that the Commission is going to be putting every effort in trying to finalise that. There've been some delays because …

Ms Maotwe: Do you think there were delays and why were there delays?

Adv Josie: The delays were not on the side of the Commission. I also was at the Tribunal at the time, so I saw the delay. Long delays were brought about by the respondent banks. They were delaying the matter by saying that the Commission didn't have jurisdiction to investigate and remember in that matter, some of the respondents were international banks and you can imagine how some of the international banks whose offices are not located in this country, find it easy to try and contest the jurisdiction.

Ms Maotwe: In your questionnaire, you describe the resources of the Public Protector as one of the risks. Do you support the proposal to invite donations from individuals and corporations to aid the work of the Office of the Public Protector?

Adv Josie: My personal view is that one of the big issues of Public Protector is funding. If you look at the mid-term review, the Public Protector said more than 100 posts were unfunded; 34% of the staff was unfunded Positions could not be filled because there were no funds. The office cannot be effective. The previous MP asked me a question about how you expand the footprint of the Public Protector. You can't expand the footprint if you don't have people. That's very important. So for me, donations might be a useful way to try and bolster the funding, but there must be some sort of conditions around donations. If you look at the Political Party Funding Act that was enacted recently, there are conditions and there are limitations to the funding. Those limitations must be filtered into amendments to the legislation.

Ms Maotwe: You seem to believe in the NDP, which is a government plan that was later adopted by the ANC. You say that the PP has an important role towards building a capable state that can live the eight Batho Pele principles. How do you envisage the Office of the PP playing that role within the context of addressing the challenges that are facing the country?

Adv Josie: It's about accountability. If you look at the objectives of the NDP and the triple challenges that the NDP wants to eradicate. For that to happen, you need an ethical and capable state. Like Parliament, the Public Protector is responsible for holding organs of state accountable. They hold organs of state accountable in two ways. Firstly, its service delivery failures and its conduct failures. So for me, it's all about that accountability, and if the Public Protector can do that effectively, then that contributes towards the objectives of the NDP.

Ms Maotwe: You indicate that you have been a consultant since September 2020. To date, which companies are you working for? And what services are you doing?

Adv Josie: I'm in the field of governance, and I'm chairing the audit and risk committee of the Department of Water and Sanitation. I am also the chair of the investigative committee for the South African Council for Project Management. I'm also an audit committee member of CATHSSETA (the Culture, Art, Tourism, Hospitality, and Sport Sector Education and Training Authority). I've just joined the board of the SA Dental Association as an independent member.

Mr Buthelezi: I have a few very particular questions for you. What qualities do you think are critical for the post?

Adv Josie: The most important thing for me is leadership. You need a strong leader who can, especially given where the Public Protector’s Office is at the moment. That's a very important thing. Somebody who understands the country as a whole, who understands the Public Service who has a lot of experience in the public service, and who understands how government departments work. Like myself, I've worked in government departments for many years. That's a good quality. What is also important is somebody who understands the law quite deeply and also understands, for example, alternative dispute resolution and also understands advocacy.

Mr Buthelezi: You just mentioned that you need to understand the law and also the people of South Africa, but initially you told us that you have no interest in politics. So how do you think you will understand the plight of the SA people that you must protect if you are disinterested in politics?

Adv Josie: I have no interest in politics in the sense that I would become a member of a political party or support a particular political party. Remember, in the Office of the Public Protector, you have to be independent, you have to be objective. ? So that's the context in which I answered that question. But I said you have to understand how Parliament works. If you don't understand how Parliament works, how would the Public Protector, for example, be able to get Parliament to assist with implementing remedial action? There are different contexts.

Mr Buthelezi: What is your interpretation of the provision that this office should be independent, from a point of view of your integrity, knowing that this Office is exposed to politics?

Adv Josie: That is a very important question. For me, the independence of the Public Protector is one of the key requirements of the job. I've always been in independent roles, whether it was the head of forensics, or when I was a global director in the Standard Bank Group - it was an independent role where I had to report independently either to the board or to the risk committee. So I understand the issue of independence. For me, it's in addition to the intangible that I spoke about, i.e. the state of mind, it's about whether the incumbent has a conflict of interest or not with that Office. As I said, if you don't have any conflict of interest, issues, or circumstances, that makes you an ideal candidate to be independent.

Mr Buthelezi: In your interview for the position of Commissioner for the IEC, you said that most of your work is part-time. What has changed now?

Adv Josie: I prefer to be part-time. That is a preference. However, this role is different from the IEC role because, in the IEC, there are options. You can either take the job full-time or part-time and they asked me which I would prefer for that particular role. My preference would be part-time because then I would not have to give up the other work. But for this role, if you look at the Act itself, one of the provisions is that the Public Protector cannot have any other remunerative work. That's a requirement of this job. So for this job, I would have to make myself available full-time. And I'm happy to do that.

Mr Buthelezi: Do you believe you've got the necessary temperament and assertiveness that's needed for the post?

Adv Josie: Are you grilling me now? Yes, I do. I do.

Ms Lesoma: Picking up from the first question of Ms Maotwe to the second last question of Mr Buthelezi regarding fairness and independence, I always say that you are independent from what, but I don't want to assume. Do you vote?

Adv Josie:  No, I don't vote.

Ms Lesoma: Wow! (Exclamations from Members of the Committee as well.) Okay. We might be voting for you. But having said that, with all the investigative skills that you have, generally, any applicant would have gone through the business plan and financials and the AG's report of an institution. So what would be a turnaround strategy?

Adv Josie: I did go through the Annual Report for 21/22. The 22/23 one has just been finalized. They haven't produced that. So the last two years, the Public Protector’s Office got a clean audit. So that means their financial management is good. I've analysed it and I looked at some of the areas where it would require a turnaround strategy. We have spoken about it briefly. The one area is funding. So I'm talking about the challenges and the risks. That's the one area we spoke about that. The other important area we also spoke about is the area of forensic investigations and litigation.

Ms Lesoma: Don’t talk about areas that you have spoken about. Focus on the turnaround of mitigating factors that you will employ when you get appointed.

Adv Josie: The most important thing is to look at the Annual Performance Plan and to see whether, at the moment, the Annual Performance Plan for the 23/24 financial year is already approved by Parliament and if there is a turnaround study that has to change. The one thing that I saw as a red flag, I'm sure the Parliament saw that too, is that they seem to be a downscaling of the targets. That worried me a little bit because if you look at the Public Protector’s Office, in addition to the 1 000 cases that they look at every year, is the systematic investigation that has been going down over the years since 2016. So that for me was a little bit of a concern, so that's an area that one needs to look at. The second area that one needs to look at as a red flag is the turnaround times. They went, in the last five years, from finalising 95% of all the cases on time within their own benchmark, but now it's gone down to 80%. So the targets have been going down rather than going up. So that's the one area of intervention.

Ms Lesoma: We agree that you are aware of the shortcomings of the office, not the person. But you will also then be working with whoever to try and mitigate that. What is your understanding of the role of the Public Protector concerning the requirements of the EA or the Executive Members Ethics Act?

Adv Josie: The Public Protector is the only institution that can investigate complaints in terms of that Act and that Code which was amended code in 2007.  The Public Protector is the only one that can investigate that. The Public Protector just released the last report in which there was a matter against the President. So that's a matter that they would investigate.

Ms Lesoma: You would know that the word ‘accountability’ is quite fashionable and on everybody's lips. The Constitution refers to the accountability of those entrusted with the state power while entrenching citizenry participation. What is your understanding of the accountability of the state to the citizen? I just want to also to add to that, who guards the guard?

Adv Josie: That's a very interesting question. Because at the moment, it's the Public Protector who is one of the guards in this country. Parliament is another guard of this country. It's Parliament who is the voice of the people, so the people rely on Parliament. They elect people to become Members of Parliament and the NCOP (National Council of Provinces). The Public Protector is in a different branch of government - in the executive branch, but the Public Protector also assists Parliament in holding organs of state accountable. So, if you look at the three branches of government, each one of them is a check and balance on the other and the Public Protector is a check on the balance of the executive and other organs of state.

Ms Lesoma: Some of us would like to refer to the State Capture Commission Report - I don't want to term it as a person because we need to term it correctly and in terms of the Constitution, the Public Protector’s remedial action is binding. Of course, while they are binding, other entities come in. Do you believe in cooperation with other state organs? And why?

Adv Josie: Yes, most definitely. It's a constitutional imperative. If you look at chapter three of the Constitution which is about cooperative governance. If you look at chapter 10 of the Constitution, it's about public administration. They all talk about accountability and about co-operation. If you look at, for example, and I'll use a recent example, which I found quite interesting.

Ms Lesoma: Can you cite an example that has been lacking?

Adv Josie: Anti-corruption, for example. With the 2020 national anti-corruption strategy, for me, the key there is coordination and cooperation is extremely important.

Mr Horn: Firstly, I want to clarify something you said that you spent 10 years with the Competition Tribunal.

Adv Josie: No, with the Competition Authorities, which includes the Tribunal and the Commission.

Mr Horn: From your CV, I see that you were the Deputy Commissioner from 2013 to 2016 and you were the COO from 2020 to 2022. That's five years.

Adv Josie: Let me help you. I shall explain very quickly. So I started with the Competition Authorities in 2011 and I was at the Commission for five years. I served as the audit and risk committee member of the Competition Tribunal from 2016 onwards. Then from 2020, I was the Chief Operating Officer at the Competition Tribunal, and I left last year in August. More or less 11 years.

Mr Horn: Your CV also says you're currently serving as a non-executive chair of the audit and risk committee at the Department of Water and Sanitation - since when is that?

Adv Josie: That was since November, last year.

Mr Horn: Last year. And what have you achieved?

Adv Josie: We have just met with the Honorable Minister about two weeks ago, and I just took over as the chairperson this year – I joined as a member. So I just took over as a chair. It's quite a large department with 10 000 staff members and quite a large budget but if you look at its previous performance, it hasn't been doing that well. But we are moving in the right direction. The AG just mentioned in a recent meeting that we are very close to getting a clean audit. That would be quite a great feat. So in this financial year, we are targeting a clean audit.

Mr Horn:  In your questionnaire, you made some comments about the adverse findings against the Public Protector. Then you said there needs to be a comprehensive assessment of the investigative and funding process to identify gaps and improve them. Why do you believe the adverse findings were the result of processes?

Adv Josie: If there is a good process in place, the chances of making mistakes or bias creeping in, are very limited and diminished. Maybe there's a need for an amendment to the Public Protector Act. In the Competition Commission, the Act itself says a decision of the Commission is made by the Commissioner together with the Deputies, so it is not a single person who decides for the Commission which adds to the objectivity of that decision. And in the Commission, every Tuesday, the heads of the departments sit with the Commissioners, where they brief the Commissioners and then the Commissioners make decisions on those cases. So it's a whole group of people. I don't know exactly what happens in the Public Protector’s Office at the moment, but there needs to be an assessment to see why, for example, some of the cases are being lost in court. Let me give an example: the GEMS (Government Employees Medical Scheme) case. I couldn't understand when I looked at the case how the Public Protector got that one wrong because it's quite obvious it is not a public department, it's not an organ of the state. So for me, I couldn't understand that. It's those simple things. If they went through a proper, robust process, then at the end of the process, the Office of the Public Protector should not be making those elementary mistakes. And most of the cases, if you look at it, are process issues.

Mr Horn: So you're convinced that if there were a more robust process in place, the errors in law would have been fixed?

Adv Josie: Yes, it's not just about whether a single person got it wrong. For me, when that single person sits with a report in front of her or him, it must have gone through a process, and then it comes to that person, that person makes a decision, so it's not just that final decision, it's that entire process that needs to be looked at.

Mr Horn: When you talk about the risk plan, Ms Lesoma referred to a turnaround plan but you have on pages 12 and 13 of your questionnaire a risk plan where you say one of the risks you see is political instability and your fix for it is that you will want to maintain better relationships with political parties. Can you explain that?

Adv Josie: I looked at the risks facing the Public Protector. You get internal risks and external risks that don't only affect the Public Protector but affect the entire country. It affects the IEC, for example, but if you look at the IEC, it has good relationships with political parties but remains independent. So in the same way, if you look at Parliament, for example, it has a very important role to play in protecting the independence of the Public Protector and assisting the Public Protector. So for me, that's where the engagement with various stakeholders, including political parties has to be a good one.

Mr Horn: You also make mention of King’s four principles? In terms of a desktop exercise based on the Annual Reports, what would be the one key intervention you believe must be undertaken at the Public Protectors Office?

Adv Josie: I looked at the King’s principle one about ethical and effective leadership. Now, people talk a lot about the ethical part. I mean, there's been a lot of dialogue and discussion on ethics, but the one part that people don't talk a lot about is the effective part, effective leadership. And for me, I remember when I was in the Commission, the one thing that I did was a turnaround project. Cartel cases, abuse of dominance cases, and so on were taking years and years to complete. Every cartel case took three years to complete. So we looked at what we called a bottlenecks project. We looked at where there were bottlenecks in the process and how we could get cases to be finalised sooner rather than later. We looked at the gaps. We found the gaps and we tracked those gaps, and we now finish cartel cases in 24 months rather than the previous 36 months. So for me, that’s one thing that needs to happen in the Public Protector's Office, i.e. to look at effectiveness. How do we make internal processes more effective with the same funds, remembering the Office has a funding problem? So how do we make it more effective with the same funds that we have?

Mr Wessels: So if we can go back to some things that you were engaged in earlier. You mentioned at the beginning, the non-compliance of remedial actions and your solution was to make it a statutory offence. Is there any other solution that you can think of if it just stays in offence, and there's no prosecution, it's not going to assist. So do you think there's any other way that can address that non-compliance issue?

Adv Josie: It's a difficult question because if you look at the civil side, at the moment the civil side is not working and the Public Protector doesn't have the resources to go to court with every matter as that's put in an expensive process. The Public Protector can use Parliament. I'm not too sure that's working because from 2016 until now, 65% of the remedial action hasn't been addressed. Now, I don't know whether the Public Protector has engaged Parliament aggressively on that remedial action and brought that problem to Parliament. I don't know or to what extent, so I would say that would be the one area; engaging Parliament to see where Parliament can assist in getting those done and then also engaging with the departments themselves because sometimes on a practical level on a practical level - I mean, I understand it if I compare it with audit findings, for example. What I like about the internal auditors and the AGSA is that they engage with the departments on the audits and they will explain the findings, and the recommendations and they will clarify these things. Now, I'm not too sure to what extent the Public Protector follows up with the departments that they investigate because not all the relationships, I mean even if you investigate the matter in a public department, should be done amicably. When the AGSA audits, they don't have an adversarial relationship with the department. So that's the kind of culture change in terms of how the Public Protector should investigate.

Mr Wessels: You touched on it, sort of, but can you explain to us what you think will improve the co-operation and co-ordination of the Public Protector with other Chapter Nine institutions?

Adv Josie: I don't necessarily think that they don't have good co-operation because I read some of the literature on the other Chapter Nine institutions. Some of them do work quite well together. The Public Protector’s Office and the SA Human Rights Commission did a joint project in Alexandria sometime last year.  So there are those sorts of joint projects that can be done, but the joint projects need to increase, especially the national anti-corruption strategy. There's an opportunity now if the government is going to establish that anti-corruption body.  I'm not sure what they're going to call it, but that will be another opportunity for the Public Protector, not just with a Chapter Nine institution, but with other institutions that have the mandate to investigate corruption and dishonesty, be it the SIU (Special Investigating Unit) or the Hawks or any other agencies. So those are big opportunities.

Ms Mananiso: When you've been responding to my colleagues, one of the issues that you've been raising is the issue of the status in the Public Protector’s Office, the issue of low morale among employees. So I want to check what you would do differently if you were to be taken to that office tomorrow.

Adv Josie: For me, the first thing that one needs to do, as a leader, is to engage with firstly, the management, and then engage with the staff and reassure them and recommit them to the vision of that department because if you look at the vision of that department, it's about the public interest; it's about holding government departments accountable for service delivery, and conduct failures. So I would commit them to that, that's the one thing. The other thing is, that there must be an immediate intervention, a group intervention to almost test and see exactly where the staff are emotionally. If no one does that, no one will know the emotional wellness of the staff in the Public Protector’s Office. For me, that's a very, very important thing. Before one even considers tackling anything else, that is for me, one of the most …

Ms Mananiso: Okay, your understanding in terms of “fit for purpose”. If you had to explain or educate anyone about it, what would you say?

Adv Josie: “Fit for purpose” in any particular context or just generally?

Ms Mananiso: I'm saying that if you were to induct anyone, what would you say?

Adv Josie: For example, if you talk about fit for purpose for, say, a particular position, it is whether that person is qualified and experienced to do that particular job, whether there's a match between the job description and the person's qualities and the person's track record in terms of that particular job.

Ms Mananiso: What would be your special project if you were to be the Public Protector in the state that we are in as South Africans?

Adv Josie: There are several responsibilities for the Public Protector’s Office, The major part is not the complex investigations, or the systematic investigations, that make up a small part of the Public Protector’s work, about 10% or 13% of the work. It's the other complaints that they handle from the ordinary South Africans who are reporting complaints to the Public Protector’s Office. For me, that's an area that one needs to look at, especially the turnaround times. As I said, one of the red flags is that the turnaround times are getting longer, rather than shorter. So that's something that one needs to look at because when there are delays in resolving a problem, you'll find that's where a lot of discontent comes in from members of the public. There is a greater risk in those cases because members of the public would start to look at other Ombudsmen. So that is an area to be improved, together with advocacy. So those are the areas that one could look at, including the wellness area, which I spoke about.
 
Ms Mananiso: I can see on your CV that you've got experience in the roles of Chapter Nine institutions. However, in South Africa, most people feel they don’t know those institutions and that they are far away from where they live. What are the strategic measures that you would put in place if you were taken as a Public Protector to ensure that you cover everybody, and you don't leave anyone behind?

Adv Josie: What's important is to have a proper marketing strategy. Now you look at the DSO. When I worked in the DSO, one of the strong points of the DSO was that it had a good marketing strategy. Now, few people know that the DSO is a very small organization. It had just over 500 employees and was the size of the Public Protector. But the way it marketed itself had a great deterrent effect in the country. So the Public Protector needs to do that. To be fair to the Public Protector's Office, it does a lot of good work. I don't think the public in this country sees all the good work they do. We see all the cases that they lose in court because the media focuses on the losses. But you look at the lot of good work that they are doing. You look at the road shows that they're done - they've done a lot of roadshows and they have expanded the footprint throughout the country. You look at the number of cases and complaints that they get; when you see an increase in complaints, it means that people have more confidence in you, and they want to come forward and want to report to you. So for me, those are the areas that one can overlook.

Ms Mananiso: Tell me your understanding of conflict resolution and conflict management, as a person who understands issues of risk management.

Adv Josie: So, where you manage the system it is conflict management; conflict resolution is when you are talking about a specific dispute and you want to resolve that particular dispute. You would, for example, look at different ways in which you would resolve that dispute and I always encourage or recommend - it's in the Public Protector Act. The Public Protector has discretion on how to resolve disputes. For example, one can negotiate, one can mediate or one can conciliate. So that would be the first step towards resolving conflict. That would always be an important step and also an important mechanism for the Public Protector, whereas conflict management would be more about the various mechanisms that one can use for conflict resolution. Is the Public Protector, for example, empowered to use some of those alternatives? So, that would be how you would manage the entire system of conflict resolution.

Ms Mananiso: If you were to be a Public Protector, what would be your programme of action in terms of dealing with repetitive offenders in the system? Specifically, those who are offending the PFMA and section 217 of the Constitution?

Adv Josie: There must always be consequences for repeat offenders. The offence is always greater than for first-time offenders. Even in criminal law, first-time offenders might not get the maximum sentence, even in competition laws, Fines for repeat offenders, are much larger. So, many of the government departments now, including local government, are all implementing consequence management policies and procedures, etc. The Public Protector needs to start looking at consequence management for repeat offenders and whether, when structuring that into the remedial action and the recommendations, repeat offenders are deterred from any unlawful future conduct.

Mr Dyantyi: The Constitution in Section 193, and I'll give it to you, says the Public Protector under the permissions established in terms of section 193, must be a woman or man who is South African and fit and proper. And so it goes. Two things I want you to help me with. Why do you think that there is an emphasis on woman?

Adv Josie: I don’t know. To be honest, they could have said persons.

Mr Dyantyi: Let me help you. It is about redress in this country. There is redress of women. Before that women were part of the triple oppression. So it is not about English, nor an oversight. But I understand because you would have been indifferent about the history of this country. I understand why you would not be able to pick that up. The second point still under ‘fit and proper’ is that the Constitution doesn't define it. What is your understanding of being fit and proper?

Adv Josie: As you say, the Constitution doesn't define it and to be honest, it's not defined anywhere else as far as I know. I know it's hard to find anywhere else. You will find it in various pieces of legislation.

Mr Dyantyi: Which legislation?

Adv Josie: The Competition Act, for example.

Mr Dyantyi: Does it define fit and proper?

Adv Josie: No, it doesn’t define it, but you will find the reference to fit and proper.

Mr Dyantyi: Let me assist you. There's case law that defines fit and proper. It's in the General Bar of the Council versus Nomgcobo Jiba and Others. It raises certain principles. Do you know that?

Adv Josie: I could be wrong but for me, it describes the qualities. I can describe qualities for you, for example, honesty, acting with integrity, and being objective when you are in a position to make a decision. So those would be some qualities for me. But I don't think it’s been defined, as far as I know, in any legislation.

Mr Dyantyi: I'll give it as your first takeaway to go and look for it - whether you're successful or not. Let's go to the next point. My next point: I want to help you here just to get your understanding and attitude about clean audits. Just what is, what is your attitude and understanding of a clean audit?

Adv Josie: Okay, I know that sometimes there is a misunderstanding of what a clean audit is. It's basically that the Auditor-General looks at three aspects: the auditors look at your financial statement and your performance against predetermined objectives, and they look at compliance with the law. Their opinion is based on the integrity of your annual financial statements. So when they say clean audit, they mean - and it's not an official term, by the way - it's an audit where there hasn't been any material finding on your audit findings. Okay?

Mr Dyantyi: Let's move to the next point still within that. Here is an example of a municipality that has a clean audit but throughout the week, and almost every day, there are protests about service delivery problems and you have high levels of unemployment and poverty. What is the problem?

Adv Josie: Remember, a clean audit doesn't mean that you are performing. Remember an opinion, I said is on your …

Mr Dyantyi: You have answered me. Let's proceed to the next point. In your assessment and reading of the documents in the Public Protectors South Africa, you seem to be making a point that their budget is not adequate. That's the point you make. Firstly, what is their budget in this current financial year?

Adv Josie: I know, in the previous financial year it was close to - I could be wrong; I might be mixing it up now – it’s almost R300 to R400 million.

Mr Dyantyi: It's very far from R400m. Maybe next year it will be R400m. But here's the point: I'm interested to hear from you what assessment you have done. Do you think, when you say it's not adequate, that the budget is currently being utilised efficiently in that office? Have you read through those documents? Because you're you've made a particular statement to a point where we need to campaign for more money for that for that office and I'm not so sure that's what we need to do.

Adv Josie: The reason why I'm saying that – remember you just asked a question about a clean audit and a clean audit is based on how you manage your finances and we gave them a tick there. We said that managing the finances …

Mr Dyantyi: Let us go onto efficiency because I am managing my time.

Adv Josie: If they are managing their finances well and they are still sort of inefficient, which means there must be a reason for that and one reason could be funding. Remember I asked one of the other Members, I said they have a large number of unfunded posts, which at some stage was 34% of the staff.

Mr Dyantyi: Okay, thank you. This office that you're praying to get this office as the new Public Protector.

Adv Josie: Yes, I did pray.

Mr Dyantyi: You made an assessment about the complaints and I want you to help me with that. You said that the reason why there are so many complaints, you're attributing that to excellency, and better work in that office? Is that a generic statement you making or is it based on particular evidence? And if it is evidence, what is that evidence?

Adv Josie: Now that would be one of the reasons for that. The other …

Mr Dyantyi: You said it earlier.

Adv Josie: That's one of the reasons. If people are more confident in your office, then more people will come forward.

Mr Dyantyi: That's a generic statement.

Adv Josie: Yes, it's generic.

Mr Dyantyi: So I'm asking whether you are making that as a generic statement or a statement based on facts and evidence about this place that you want to call home if you are successful.

Adv Josie: It is based on what I read in the various documents of the Public Protector. Number one, they said that the footprint has increased and there's more confidence in the office because they are doing more awareness. So more people are now wanting to complain to them. Okay?

Mr Dyantyi: Let's leave that because I don't know; it could be other reasons but we're not on the same page. Let's go to the next point. You prepared yourself. You nominated or you applied. Whatever you did, we are here today in these interviews. Have you identified any risks in this office?

Adv Josie: Yes.

Mr Dyantyi: Okay. Just talk to me about two risks you have identified and how you're planning to manage those risks if we happen to appoint you and recommend you to the National Assembly.

Adv Josie: Remember, I have already spoken about quite a few of the risks. Do you recall? One of the risks I said is … but let me speak about something different. Because I know I spoke about risks. For me, one of the …

Mr Dyantyi: Risks related to the Public Protector South Africa as an institution, in just a few seconds,

Adv Josie: The one risk, very quickly, is for me, there is a skills deficit. The Public Protector identified forensic skills, for example. So that is the one area that needs to be looked at. How do we improve the forensic skills? So they must be focused on recruitment in that area.

Mr Magwanishe: What is your understanding of the role of the Public Protector in respect of the requirements of the Executive Members Ethics Act?

Adv Josie: The Public Protector is the only institution, at the moment, that can investigate complaints in terms of that Act and that Code. So that's their role.

Mr Magwanishe: And what are the challenges associated with that, especially the implementation of that Act?

Adv Josie: The challenges are, and we've seen it in the one Constitutional Court case, especially if there is remedial action - I remember I alluded before to the fact that 65% of the remedial action is not implemented.  The challenge is that public critics sometimes have to resort to court action to implement some of those. So there needs to be a greater role for Parliament to assist the Public Protector to get some of those, especially in the National Assembly, remedial actions implemented.

Mr Magwanishe: So if you are appointed to be the Public Protector, how will you deal with the issue that has always arisen, of a conflict between the Public Protector and the Deputy?

Adv Josie: I don't think there should be any conflict between the Public Protector and the Deputy. You're talking about the Deputy Public Protector? I don't think there should be any conflict between them because, at the end of the day, they should be supporting one another. If you look at the Act itself, it says that the Deputy Public Protector must assist the Public Protector to fulfil his or her role. So for me, there shouldn't be any conflict. That should be clear. I worked as a Deputy in the Competition Commission. I worked with the Commissioner and there was no issue. We knew what our roles were and we knew exactly how we were going to assist one another. So I don't think there should be any conflict between them, not that I know that there was any conflict between the incumbents.

Mr Magwanishe: I'm not talking about the incumbents. I am talking generally about the Deputy Public Protector and the Public Protector, but you have not told me what you are going to do.

Adv Josie: Very simple - for me, there must be clear role definitions. Those must be recorded so that you know what the Public Protector will be doing daily and what the Deputy Public Protector will be doing daily and then how they will engage with each other, whether it's through regular meetings, whether it's at Public Protector meetings. In the Commission, we used to call them Commission meetings, where we took decisions on cases, for example. There were exco meetings where we would meet with the CEO, for example. So, it’s about knowing what is the role of the public prosecutor and what is the role of the Deputy, and the role of the CEO. So all that must be recorded in writing. So that, and also, what I liked about the Commission, is that the two Commissioners I worked with allowed robust discussion; they also allowed dissent, and dissent used to be recorded, although it didn't happen often. But when we had robust discussions, we would also record dissent because look at the Constitutional Court, they have dissenting judgments. It's important to allow that so that there can be better decision-making. That's how I would engage with the Deputy, on that basis.

Mr Magwanishe: The last one question. Do you agree that the Public Protector is part of the institution supporting constitutional democracy?

Adv Josie: Yes, yes because it is one of the chapter nine institutions.

Mr Magwanishe: And do you agree that an election is an important feature of constitutional democracy?

Adv Josie: Elections? Yes, it is.

Mr Magwanishe: Now, if I am a person from Ngcobo, looking at this Public Protector who does not vote, who does not contribute to the advancement of democracy, how should I look at you?

Adv Josie: They should look at me from a different point of view. Remember, to vote is a constitutional right and not to vote is also a constitutional right. So they should look at me as a truly independent person.  It adds to my independence because that's how I maintain my independence. Remember, I spoke earlier about the intangible part of independence, the state of mind – it contributes to that state of mind.

Mr Magwanishe: So if a judge goes to the polling polls to vote, you say that his independence is comprised?

Adv Josie: No, I don't say that. It's his prerogative. It is a prerogative. Remember what you see is the visible part; you don't see the invisible part. So what I'm suggesting to you or what I'm saying, is that for me to maintain my independence, I choose not to vote, and it's a constitutional right.

The Chairperson: Just one last question from itself. Is there a possibility for tension between the mandate of the Public Protector and that of the other institutions, such as SARS that is, by law, sworn to confidentiality? If so, how can that be avoided or mitigated?

Adv Josie: Yes, yeah, there was a case where I know the Public Protector’s Office was unsuccessful in obtaining the confidential tax information of a certain taxpayer. So what's important is that there are various competing laws. You get the Public Protector Act, but you also get the Tax Administration Act. All legislation has to be respected. But, for me, it's the coordination. The coordination is very, very important. I'll give an example of what is going to change things in the future is the new anti-corruption strategy because they are talking about a multi-agency approach – which I fully support -  but they're talking about a high-level focussed and effective coordination and that is going to help, not just the Public Protector, but it's going to help all agencies in the country. If that strategy is successful, South Africa will be moving in the right direction as far as corruption is concerned. So for me, it's also about stakeholder relationships that the Public Protector needs to build with the various agencies.  When that relationship gets to a higher level, and it matures, then there'll be a high level of trust. This must be done within the ambit of the law.

 Chairperson: We have come to the end of this interview.

Candidate Four: Adv Lynette Marais
The Chairperson: Adv Lynette Marais, we will just ask you in five minutes to briefly indicate why the Members should consider you for the position as a Public Protector.

Introductory remarks by candidate
Adv Marais: I'm a practising advocate with more than 20 years of experience in the legal fraternity. I also have extensive managerial experience. Amongst my major strengths is my ability to work independently as well as in a team. I have an LLB and BA law degrees, which I've attained from the University of the Western Cape. I also have a certificate in leadership development, which I attained from the University of the Witwatersrand, together with a pre-entry certificate (for entry into the Senior Management Service level) which I obtained from the National School of Government.

Adv Marais: Throughout my career, I've held various leadership positions, including Supervisory Professional Assistant, Regional Professional Assistant and Justice Safety executive. As a legal practitioner, I have dealt with several litigious matters over the span of my career and I've assisted various people in an array of matters in various forums. At Legal Aid, I had a progressive Korea for 12 years. I was initially appointed as Criminal Professional Assistant, thereafter I became a Civil Professional Assistant, I became a Supervisory Professional Assistant. Shortly thereafter, I was promoted to Regional Professional Assistant and ultimately I became Justice Centre Executive. As Justice Centre Executive, I have held positions at two justice centres respectively over a span of eight years. During that time I investigated complaints, I have taken remedial action, and also reported to our regional and national office to ensure accountability. In addition to that, I've been acting as a magistrate at two magisterial districts, respectively. During that time I've ensured access to justice and also the efficient and effective functioning of the courts. I'm confident that my experience, combined with my education, my investigative skills, communication skills, analytical skills, and sound decision-making skills, together with my ability to thrive under pressure, makes me a suitable candidate for this position.

The Chairperson: Do you confirm the disclosures you made in the questionnaire? If yes, are there any further disclosures you want to make or explain?

Adv Marais: Yes, I confirm my disclosures and I don't have any other disclosures to make at this stage.

Committee engagement with the candidate
Ms Manganiso: My first question to you is with regards to the state of the PPSA Office and what can you offer to us if you were to be taken today to say tomorrow you're starting at the PPSA.

Adv Marais: I'm sure that at this stage, there are many things to deal with at the Public Protector Office. However, I have to prioritise matters in terms of the importance they have, and obviously the urgency thereof to see how to deal with matters. As far as the staff is concerned, I will first try to deal with the staff morale to get everybody on the same page for us to be able to move forward. And then as far as the work is concerned, if there are any backlogs, we will have to prioritise those matters, but first of all, I will ensure that we have jurisdiction to deal with the matters and even if we do, I will see whether there isn't any other agency more suitable to deal with it. If not, we will proceed with those matters in terms of importance and urgency.

Ms Manganiso: Then what would be your special projects, apart from whatever you have advocated in terms of privatising cases and issues? What would you say if you were to be a Public Protector, “These are my special projects that I must implement as my legacy.”

Adv Marais: There are a lot of things that I would like to focus on. Now, I know that, for instance, high-profile matters are very important in our country for specific reasons. It's because of the perception of the public; it's also to instil confidence in the public that all is well in public life. However, ordinary people should also get the same kind of service from the Office of the Public Protector. Having said that, I will try and make sure to divide the work for everybody to get the same kind of attention. Obviously, high-profile matters will get more attention due to their nature, but I don't want ordinary people's matters to lag as a result thereof.

Ms Manganiso: From your questionnaire, we can see that you've got extensive experience in terms of legal issues and we know that most people trust the PPSA Office, and those are vulnerable and marginalized people. What is it that you can bring, as an innovative mechanism, to ensure that you touch everybody, even those who are in the rural areas, in terms of getting your services?

Adv Marais: For rural people to get access to the Office of the Public Protector without them having to travel so far, I will ensure that we have outreach programmes, maybe attend to an advice line at the national office where there will be people throughout the day, or night, who can assist them. I will ensure that those junior staff members are supervised by more senior legal practitioners. I will also have agency agreements with other offices to see whether we cannot collaborate with other stakeholders to make the Office of the Public Protector more accessible. In addition to that, I will ensure that people in a specific region will be served in the official language of their choice or the language that they normally use within a specific region for them to understand and for the information to be accessible to them. And obviously, I'm making an example, at the national level, the language might be English because it's more universal and it will not be necessary to pay for interpretation services, etc. In addition to that, I will also make use of the media, for instance, television broadcasting or radio broadcast to bring the information of our Office to people in rural areas.

Ms Manganiso: Okay, your understanding in terms of Chapter Nine institutions and whether, currently, they are actually executing those roles. And if not, what is it that you think needs to be done so that they become fit for purpose for the country?

Adv Marais: In my opinion, the Chapter Nine institutions are similar, but they all have different mandates. So I think that all those institutions are doing what they are supposed to do at this stage. There are things that overlap, but I wouldn't say that one office should take over the role of another Chapter Nine institution or its matters, for instance. So there's nothing that I would like them to focus on other than what they are already doing. As far as the Office of the Public Protector is concerned, of course, we will focus on our mandate to ensure that the public is being served pertaining to impropriety in the national or provincial sphere of government and if there are any allegations of that kind, they will be investigated and the necessary remedial action will be taken.

Ms Manganiso: Okay, your response with regards to repetitive offenders in the system; what will be your, at least short-term, programme of action in terms of responding to those issues? Because, you know, in terms of social crime in South Africa, everything is happening so fast, and so badly that,  in a sense, you can see that generally there's lawlessness. So what would be the programme of action that one, if you were to be taken to be the PP, you'd say, these are my priorities and I would want to respond to them within this particular time frame?

Adv Marais: Oh, my priorities will definitely be to look at corruption because corruption is a big problem in our country and it's having an effect on everything else within our country. Almost everybody's been impacted directly or indirectly as a result of that. So that will be one of my main things to look at. There are several other challenges that I would like to address: things like education, which is also a problem in our country. I believe that a lack of quality education perpetuates poverty and because of that, it's having a negative impact on our country. I believe if people are properly educated, which is a basic right in terms of our Constitution, they can give back to the country so the country can grow as a result of that. Also, welfare services - that's where the poor will be looked at. People don't have access to quality healthcare services; they can't afford private healthcare services and I think it's unfair that you should get sub-standard health services just because you are an ordinary citizen.

Adv Breytenbach: You are hoping to be appointed to a position of leadership in an Office that is really important constitutionally. Do you agree?

Adv Marais: Yes.

Adv Breytenbach: The Office is deeply divided and conflicted. How do you propose to get this Office working optimally in a short space of time? Please be brief. I have other questions.

Adv Marais: As I've said earlier, I will first have to look at the staff because I believe that if the staff morale is low nothing will happen that's of great significance. I will also look at what we can do with the current resources at our disposal to work optimally with what we have, to improve the services currently being rendered.

Adv Breytenbach: What do you understand is the principle of legality?

Adv Marais: The principle of legality - to me, it means that the law must be respected and nobody is above the law. So if there is legislation in place, then all citizens, irrespective of the position that you hold, are supposed to be subject to the laws of the country.

Adv Breytenbach: Okay, well, bearing in mind that answer, what do you understand the principle of the rule of law?

Adv Marais: I was actually speaking to the principle of the rule of law or the fact that nobody is about the law.

Adv Breytenbach: And do you want to give that principle of legality another try, bearing in mind the office that you're applying for?

Adv Marais: The principle of legality is about the fact that, for instance, the Office of the Public Protector is an institution that has been created by the Constitution and the Constitution governs the Office of the Public Protector. So all the roles and everything else emanates from the Constitution, and obviously the Public Protector Act.

Adv Breytenbach: Okay, how's your Latin?

Adv Marais: It's not too supreme, but I think I can give it a try.

Adv Breytenbach: Do you know what the Latin principle Nullum crimen sine lege means?

Adv Marais: Um…

Adv Breytenbach: If you don't, that's fine. At the top of your questionnaire on page five, you're answering a question about your past employment and I'll read you the sentences: For eight years I was at the helm of two justice centres, respectively while successfully leading a diverse team. During my reign, I have investigated and resolved complaints taking remedial action and ensuring compliance. It is that word ‘reign’ that fascinates me. During your reign? What precisely did you want to convey with the word during your ‘reign’?

Adv Marais: During the time when I spearheaded the two offices

Adv Breytenbach: And you stand by that choice of word ‘reign’?

Adv Marais: Maybe it was just a choice of words at the time.

Adv Breytenbach: I'm asking you today. Do you stand by their choice of words ‘during my reign’?

Adv Marais: I would say yes because reign is a synonym for during the time when I actually spearheaded the office. It's a synonym for it. So yes, I do stand by it.

Adv Breytenbach: Reign refers to a king or queen.

Adv Marais: No, definitely not. Not in that sense.

Adv Breytenbach: That's not what you meant. No, definitely not but, actually, that is what reign means.

Adv Marais: No, no, that's not the only that's not the only meaning of it.

Adv Breytenbach: The Constitution says that the Republic of South Africa is founded on the supremacy of the Constitution and the rule of law. What does this mean?

Adv Marais: The Constitution is the supreme law of our country, so every other national legislation, if it's not in line with the Constitution, will be unconstitutional or invalid. So everything that emanates from the Constitution must be in line with what is in the supreme law of our country.

Adv Breytenbach: That's one half of the question at the office. Supremacy of the Constitution and rule of law - what does it mean? South Africa is founded on the supremacy of the Constitution and the rule of law: I want you to interpret that sentence for me.

Adv Marais: Like I said, the Constitution is supreme. Every other thing, everybody in our country is subject to the Constitution, irrespective of your position, or even in this case, if you were royalty in our country, you would still be subject to the Constitution.

Adv Breytenbach: (laughing) During your reign.

Adv Marais: (laughing) Yes, yes. It would still be subject to the Constitution.

Adv Breytenbach: You say that you are involved with Legal Aid South Africa charged with criminal matters?

Adv Marais: No, I was initially a criminal practitioner. Yes, a criminal legal practitioner, and then a civil practitioner and then after that, I was dealing mostly with civil matters.

Adv Breytenbach: What type of criminal matters did you deal with?

Adv Marais: It varied; it was ordinary matters in the district court like ordinary housebreaking, reckless and negligent driving, and then murder cases in the Regional Court. Rape, etc, etc.

Ms Maotwe: Good afternoon, Advocate. I don’t know if you are an advocate. Are you?

Adv Marais: Yes, I am.

Ms Maotwe: So I'm looking at your questionnaire and in one of the responses, you say that, as an active magistrate, you increased access to justice. What do you mean by “I have increased access”? Give a practical example.

Adv Marais: I've increased access to justice by dealing with large amounts of work. So by doing the amount of work that I was doing, obviously more people had access to the courts. In my court, for instance, when I was sitting, I would normally proceed and finalise my roll for the day and not get involved in pari delicto and things like that, or I tried to prevent that and even finalise it later, as soon as possible. I would also deal with several judgments and get my judgments out as soon as I could, for people to get outcomes in the matters.

Ms Maotwe: So do you attribute that only to you or was it part of a collective achievement because you've got prosecutors on the side of the state and accused prosecutors and you've got the support staff from your office that, at the end of the day, helps to fast track the processing of cases. So why would you attribute it to you?

Adv Marais: You are correct in saying that there are several role players involved. However, I am the person who's spearheading the court, who's in charge of the roll and to ensure the court work is done. I was the person who ensured the court would start when it was supposed to start, on time, and after lunch, when it was time to resume court, it must resume. I normally went to work early in the mornings to start with default judgments, for instance, and worked on several things before I started my actual day. So, I feel it's just fair to say from my side, that I ensured access to justice.

Ms Maotwe: Okay and then you go ahead to say if you're appointed in the position of the PP, you will recommend the review of legislation to modernise the legal framework for public procurement. Explain to us and give us an example of what and how you would change the legislation as a Public Protector.

Adv Marais: I would not be able to change the legislation myself; I would only be able to make recommendations to see that the procurement system is maybe just simplified. It must maybe be more user-friendly or accessible to everybody or, especially, more transparent, from a national level to a local level, for everybody to be on par with what's happening in real-time on a daily basis with regards to procurement, then a lot of maladministration or corruption and problems or challenges like that could be eradicated.

Ms Maotwe: So there are services that are offered by national, provincial, and local government, which are common throughout, like security guards, the cleaners. Do you think it will be wiser to insource rather than to go out on tender to advertise for security services that you will need from today, for the next 100 years?

Adv Marais: Is it a follow-up question?

Ms Maotwe: From you changing the legislation. So my question is: is one of the legislations that you would want to recommend the insourcing of security? Does that cut across local, provincial, and national levels?

Adv Marais: No, I never touched on anything like that in my reply. I didn't say, I would like to …

Ms Maotwe: I'm not saying you did. You are saying you would want to change the legislation or contribute to the changing of the legislation. My question to you is this: some services are offered that you know you're going to need, such as cleaners, security, and all of them. Is it your view that you might want to contribute to the legislation of insourcing? Yes or no?

Adv Marais: No, I didn't specifically speak to that, but it might be part of it. I can't say it's this or it's that -  a whole number of things would have to be looked at. And to be clear with regards to insourcing or outsourcing of services, it wasn't part of my reply and I can't say, “Absolutely, yes, you can just insource or yes, you can just outsource,” because that's situational.

Ms Maotwe: I'm trying to manage time. So, you are a Magistrate?

Adv Marais: No, I was an Acting Magistrate.

Ms Maotwe: And in your career, how many people have had to report to you, relative to if you were to be given this position? Do you know how many people you are going to be managing or leading in the Office of the PP?

Adv Marais: In my career, I have managed several people per office. Probably in the two offices together, it might be more than 80 people - I'm talking about my time at Legal Aid. So, I'm used to working with a large number. In this instance, it might be hundreds of people, obviously, because the scope is bigger. It would be more people, but it will remain the same to me.

Ms Maotwe: Do you have an idea of how many people are currently in the Public Protector’s Office?

Adv Marais: A couple of hundreds of people? There are temporary staff and permanent staff, so it might be approximately 500.

Ms Maotwe: Should the Public Protector make a call for donations from individuals and corporate companies? What do you think about donations from such entities?

Adv Marais: The Public Protector gets funding normally from Parliament, but if it is insufficient to ensure the requirements of the Constitution are being taken care of, then yes, I would just look into it to see whether it is feasible to get funding elsewhere. And obviously, having said that, I would weigh all the pros and cons to see whether it is feasible.

Ms Maotwe: You listed corruption as one of the challenges facing this country and you say that to address this, you recommend the implementation of a code of conduct together with an anti-corruption policy. Is it your view that the current PP is not at all what is not happening currently? Can you give an example of how exactly you are going to address that issue?

Adv Marais: No, not at all. I didn't refer to anything that the current Public Protector is doing or not doing. I would just like to put that on record. I was just speaking about the fact that in the country in general, we should integrate systems to make all the Departments of Justice or organs of state work better, be more user-friendly, more transparent, and more open for everybody, to ensure public accountability

Ms Maotwe: And that will cap corruption?

Adv Marais: It won’t entirely, but it will assist in dealing with the problem.

Mr Buthelezi: You refer to yourself as this dynamic legal practitioner. Can you just help this Committee to just understand by referring to a specific incidence, in particular, that can prove this assertiveness that you're talking about?

Adv Marais: During the time when I was spearheading one of the Justice Centres, we had a service delivery problem at one of the courts. One of the courts was not productive because they were relief magistrates servicing the court as and when they became available. That led to several backlogs, delays, etc. I had a meeting with the chief magistrate and also I reported the matter to the regional executives of the judiciary, the NPA, and Legal Aid South Africa, and I persisted with it until a permanent magistrate had been appointed.

Mr Buthelezi: With your strong leadership, combined with the assertiveness of your ability to work independently and within a team, what do you understand is the value of synergism these are sets of data dynamic, they're able to work independently and within a team. What do you understand is the value of synergy?

Adv Marais: Obviously I can work independently, but it's also important to collaborate with team members because everybody brings their own values to the table. Having said that, the Office of the Public Protector is supposed to operate independently from other state departments, government departments, organs of state, etc. and that is important, actually, in terms of the Constitution, the Office of Public Protector should be independent and impartial.

Mr Buthelezi: Of course, you're not going to be a councillor or Minister or a director, but to be a PP. Therefore, how do you think you can use this office to advance the government's agenda in terms of service delivery because this Office does not deal directly with service deliverables, e.g. water services.

Adv Marais: I would deal with it through my investigations. If I get an inquiry for an investigation for service delivery, or pertaining to a service delivery problem, I will investigate it, give the other party an opportunity to give their input, I will evaluate that input, and, obviously, together with all the facts and everything, give my report together with a recommendation to ensure that the service delivery happens for the people.

Mr Buthelezi: If you happen to be appointed, do you have any fears that politicians will try to influence you? If so, what do you think you would do?

Adv Marais: I'm not affiliated with any political parties, so I don't have any fear that political parties would like to influence me, and even if people would like to do so, and I think one of the values of the Public Protector, in terms of being fit and proper, is to be incorruptible. So I'm not afraid of that for myself.

Mr Buthelezi: Last question. You are aware of the issues of gender imbalance in the workplace? Was this one of the reasons you applied for the post? And secondly, knowing that your two predecessors were female, what have you learned from them that you think you can take home?

Adv Marais: I have never applied for any position because of the fact that I'm female only. I am quite confident that I am competent to deal with any job description that I'm assigning myself to. So pertaining to your first question, no, I haven't applied for the position because of gender issues or the fact that there is an imbalance in the workplace. I'm applying because I'm a capable person to do the job.

Mr Buthelezi: My question pertaining to the other two Public Protectors, your predecessor?

Adv Marais: I've learned a lot from both of them. And I think I can use what's good for me and what is not so good for me to move forward with regard to this decision.

Ms Thlape: Let’s go to the institution to which you are applying. What would you say are the key programmes of the Public Protector? What is your opinion about them? And if there are changes that you would want to effect, what would they be?

Adv Marais:  With regard to the current situation at the Office of the Public Protector. I think that one would have to review a lot of things at this stage to see, depending upon the current situation, the issue pertaining to staff that might not be sufficient to do the work, and the lack of resources at the Public Protector’s Office. All of those things will obviously have an impact on the current programs that should be dealt with.

Ms Thlape: What are these programmes? Do you know the programmes?

Adv Marais: Yes, the Public Protector has, for instance, outreach programs to the people in outlying areas. The Public Protector, through all those programmes, wants to instil confidence in the public that all is well within the public sphere.

Ms Thlape; Let's move on in the interest of time. Your experience in the public service - I noticed in your CV that it is around you being a legal practitioner for Legal Aid and an Acting Magistrate. Now the role of the PP requires you to meet particular standards expected of the whole of the Public Protector Office. What do you understand about the expected standards as defined in Section 195 of the Constitution? And how will you apply the standards as the Public Protector?

Adv Marais: Expected standards? Yes, the Public Protector must be a person of integrity, honesty, professionalism, a trustworthy person, and as I said earlier, a person that should be incorruptible. All of those things will ensure that the Public Protector is functioning independently and impartially, without fear or favour, or prejudice.

Ms Thlape: In your response to the question about corruption, one of the issues that you stated as a key challenge and recommended the review of, was the public procurement legislation. What is particularly wrong with the procurement legislation?

Adv Marais: I wouldn't say that there's something particularly wrong, but I do believe that one can always enhance what already exists. So that is what I meant. We really need to see whether we can enhance it, whether we can make it better.

Ms Thlape: Okay, my last question. You also indicated the challenges of the energy crisis, and you state here, “Part of my remedial action will include a recommendation for the implementation of vital structural reform measures, which will unlock the country's growth potential.” Do you mind naming these structural reforms or measures?

Adv Marais: I was talking specifically about the plants that need attention and that should be upgraded.

Ms Thlape: Obviously, you want to couple that with the implementation of good operation practices at Eskom. What's wrong with their practices?

Adv Marais: Again, I'm not saying that there is something wrong with it. I'm just saying that one can look at it to see how we can improve because, for me, if a current system appears not to be working, then it's good to look at it, review it, and see whether it's possible to enhance it.

Mr Horn: In your practice of law, either at Legal Aid, as a magistrate, or as an advocate, to what extent have you worked with administrative law, and other matters of public law, specifically procurement law and public finance legislation?

Adv Marais: I've worked a lot with the Public Finance Management Act, for instance, during my period at Legal Aid, the Legal Aid Act and policies and procedures, so I have worked a lot with public administration, public monies and budgeting, how to budget monies, transferring of budgets, etc, etc.

Mr Horn: My question was: as part of your practice of law. I understand that as part of management, you would have had to do with it from that side. But as part of your legal practice?

Adv Marais: Yes, that's part of my legal practice. I've dealt with administrative law, but I wouldn't say it was an extensive part of the law that I've dealt with or what I have specialised in, but I have dealt with it during my practice.

Mr Horn: So in terms of the Public Protector, and its duties and functions, what must always precede remedial action?

Adv Marais: It's important, obviously, if I do an investigation to give or to afford the other party or the relevant party an opportunity to give his or her input, and then I will evaluate that before I make a recommendation and say what remedial action I would recommend.

Mr Horn: So, the current Public Protector has been at the receiving end of several successful review applications, and in one or two of those matters, the court found that she had ultimately worked backwards. So, she settled on the remedial action she wanted to impose and then she embarked on an investigation. Would that be an acceptable practice?

Adv Marais: No, I wouldn't say that. I think it's in the Mail and Guardian case that the judge spoke specifically about how to deal with investigations - it's to deal with it with an open and inquiring mind and to go through the layers of matters. You mustn't just decide beforehand on the outcome that you want to work around that; you have to work with the evidence, corroborate the evidence, see, for instance, whether the documents are authentic, whether the witnesses are reliable, the probabilities, etc, etc. before you get to your issue.

Mr Horn: Now, well, in light of that, and other colleagues have touched on it, I wanted you to explain a number of the comments you made in the questionnaire. I’ll skip those that have been dealt with, but concerning healthcare you say,” I will take remedial action to ensure that service delivery should be provided fairly equitably, without bias, and that mechanisms be implemented to ensure the quality of cases". So how will you then go about it if you've already decided this is what you want to achieve?

Adv Marais: So if I get a request for an investigation, I will start to investigate the matter. Get the relevant information from everybody who can assist with the matter. That will include maybe a hospital representative, for example, and anybody else. I will go through all the evidence, make sure it is reliable, the documents are authentic and maybe get people to come and give oral evidence, etc, etc.

Mr Horn: Do you understand that your comments in the questionnaire say that you've already concluded that that's the problem?

Adv Marais: The general problem in the country is that the public healthcare service is not in a good state for use by members of the public. So I was just speaking from that point of view, generally.

Mr Horn: My last question. In your questionnaire, you also talk a lot about policy. I don't know whether you want me to read it out for you: an anti-corruption policy, policies around education, etc. What role does the Public Protector have in terms of remedial action in dealing with policy?

Adv Marais: To ensure that they are being implemented where there are policies, and I do believe that our country has good policies in certain areas. Sometimes, it's just a matter of implementing it or ensuring that it's being enforced, and if it's not, say it's procurement, for instance, and somebody didn't follow those steps or the policy.

Mr Horn: That is not policy, that's the law. Do you understand the difference between policy and law? So what role does the Public Protector have in matters of policy?

Adv Marais: I would say it's twofold. It's to see that there is transformation of policies, existing policies, that don't work. And if there are good policies in place, to see that they are implemented.

Mr Wessels: You spoke about the transformation of policy. Who do you think is responsive and responsible for the implementation and the transformation of policy, if you refer to the Constitution of South Africa?

Adv Marais: The legislature, will start there with all those discussions and it will flow for policies to be made or to be implemented, etc, etc., in different spheres of the government.

Mr Wessels: So you do understand the separation of powers doctrine and where Chapter Nine institutions fit into that. If we can reflect on the past, since the establishment of the Public Protector and also in the recent past, do you think the Public Protector has ever encroached on another Chapter Nine functional or area? Can you give an example?

Adv Marais: I've said earlier that sometimes it happens that the functions of Chapter Nine institutions overlap. I will make an example of the Human Rights Commission. It has a specific mandate, but sometimes, an inquiry of the Public Protector’s Office might involve a human rights matter, so the complaint or the inquiry wasn't initially about human rights, but that might come to the fore in the investigation and because of that, it will happen that the Public Protector can either refer a specific part of it to the Human Rights Commission, or the Public Protector can proceed with the whole matter, depending upon on the nature of the matter.

Mr Wessels: Do you think there's a need for better coordination between Chapter Nine institutions?

Adv Marais: I think it can be improved, yes.

Mr Wessels: And how would you do that?

Adv Marais: I would think that one can have a memorandum of understanding between all the institutions, obviously, after deliberations and discussions and so on, to see how to streamline the work of Chapter Nine Institutions.

Mr Wessels: You said you did not reflect on the person of previous Public Protectors and I'm not asking you to do that, but if you would reflect on the Office of the Public Protector since its establishment.

The Chairperson: We require two minutes to attend to the lights and systems.

Mr Wessels: In what areas do you think the Public Protector has fulfilled its mandate successfully?

Adv Marais: I would say in ensuring good governance with regard to public and government institutions. The Public Protector was doing well, I think, in the recent past and should be commended on that.

Mr Wessels: What are the areas where improvement is needed in the Office of the Public Protector overall, in terms of the mandate?

Adv Marais: I think improvement is needed in respect of -  I would say just say that a general concern to the public at large is that high profile matters take so much attention and resources, etc. and because of the lack of resources, or paucity of resources, in the Office of the Public Protector, it's very challenging to focus on the vast majority of matters pertaining to the ordinary citizen, but I think they can improve with the necessary assistance of resources.

Mr Wessels: Reflection just now on remedial action. I think you would be aware of the fact that there's an overall problem that binding remedial action is not implemented by State organs. How would you handle non-compliance with remedial action?

Adv Marais: There is a constitutional case that states that they may remedial action is binding, so it is not negotiable with state institutions as to whether or not they're going to implement remedial action. The Constitution is also clear about the fact that other organs of state must assist the Office of the Public Protector to maintain its dignity, independence, impartiality, etc. So, I would deal with a specific institution and make all of those things clear to them to ensure that they act in terms of remedial action. If not, then I will have to escalate it to the next level, depending on which level one is dealing with.

Mr Dyantyi: So, your prayer is to become the new Public Protector? Can you just confirm that with me? Is that what you want?

Adv Marais: Yes.

Mr Dyantyi: Okay. Now, that institution that you want to be the head of, in terms of the Constitution section 181(2) – (5) is governed by at least a set of four principles. What are those?

Adv Marais: From section 181 onwards, it's about the appointment of the Public Protector and, the attributes that the person must have, to become the Public Protector.

Mr Dyantyi: The appointment is in section 193 – it doesn't belong in section 181. I'm asking you about section 181. There is a set of principles governing a Public Protector appointed in terms of section 193. All I'm asking is just to share with me, what are those three principles. You have already mentioned one and I want the remaining three. You have said that all organs of state must assist - that's one of the principles. Maybe that will help you to remember the others.

Adv Marais: The Public Protector must investigate.

Mr Dyantyi: No, no.

Adv Marais: The Public Protector is appointed to investigate matters of organs of state, right, if there is an alleged impropriety. The person must also write reports and make recommendations.

Mr Dyantyi: That is not one of those principles. Let's leave that because we're going to get into a guessing game. My next point. There's something called looking forward and looking back. Before you came here, were you able to have a few minutes of your time to go to the Annual Report of this institution, the recent past of 2021/22 as well as the Annual Performance Plan of 2023/24? Were you able to? I just need a yes or no answer.

Adv Marais: Yes, I did.

Mr Dyantyi: So for this current financial year, what's the budget for that office?

Adv Marais: The budget must be in the vicinity of R200 million.

Mr Dyantyi: Are you guessing?

Adv Marais: No, I’m stating it.

Mr Dyantyi: It's not that.  My next point, so that we proceed, I want to talk about the evolution of the Chapter Nine institutions. That was a process that was delivered and concluded in 2007 by the late Professor Kader Asmal who looked into the health of those institutions and that report focused on how we can fix the Chapter Nine institutions. So in 2023, Parliament is having an inquiry IRA, which is about the fitness to hold the office of the incumbent. What went wrong? We had a report 16 years ago about how to fix the institution and this year we were talking about the removal of an incumbent, which is not the institution.

Adv Marais: Kader Asmal’s report dealt with the overlapping or duplication of the functions of certain Chapter Nine institutions, so what went wrong is that certain institutions could have dealt with certain matters or certain functionaries instead of the Office of the Public Protector. And I think that, as a result of that, several matters have been taken on review as a result of that.

Mr Dyantyi: The Constitution of the Republic of South Africa, in Section 193, which is about the appointment of Public Protector and other Commissioners says, the Public Protector and other Commissioners must be a woman or man who is South African and is fit and proper. I just want you to help me because I've already helped by running through it. Why do you think the drafters phrased it in that way to say a woman or man and not say persons? Can you think of any reason?

Adv Marais: I feel it's to ensure inclusivity in terms of gender; to ensure that everybody is included, and people do not have that notion of, if you say the ombudsman, for instance, there's a male connotation to that. So I think that it's being phrased in that way to make sure that everybody's included.

Mr Dyantyi: And then the ‘fit and proper’ is not defined there. How do you understand a person being ‘fit and proper’?

Adv Marais: I see a person with the proper attributes as being somebody who has a high level of integrity, honesty, professionalism, and a person who is incorruptible.

Mr Dyantyi: Advocate, are you fit and proper?

Adv Marais: I would say so, yes.

Mr Dyantyi: Why?

Adv Marais: Because I have those attributes.

Mr Magwanishe: How do you manage stress?

Adv Marais: It's situational. It depends upon the situation. But normally, if it's in my free time, I read or I go for a walk or something to clear my head. If it's at work, I just take a little break to regroup and then I will proceed with what I have to deal with.

Mr Magwanishe: How do you deal with criticisms?

Adv Marais: Criticism is part of life, especially if you are practising law. You get it all the time. So, you should grow a thick skin against criticism because it's part of the package, so to speak.

Mr Magwanishe: How do you deal with criticism?

Adv Marais: I'm dealing with it well. Can I proceed just with that? If somebody is giving me criticism, I will try and get feedback to see whether it's constructive or not. If it's constructive, then I will see what I need to remedy or do differently to handle things better moving forward; if it's not constructive criticism, then I will not own it and move on.

Mr Magwanishe: What type of majority is required to appoint the PP?

Adv Marais: Two-thirds.

Mr Magwanishe: What type of majority is required to appoint the PP?

Adv Marais: Two-thirds majority of the Members interviewing for the post, the panel.

Mr Magwanishe: Is there a difference between two-thirds and 60%?

Adv Marais: Yes, there is.

Mr Magwanishe: Who has the power to suspend the Public Protector?

Adv Marais: The National Assembly. No, the President. To suspend, it is the President.

Mr Magwanishe: What is your understanding of the role of the Public Protector in respect of requirements of the Executive Members Ethics Act?

Adv Marais: The Executive Members Ethics Act: the Public Protector has sole jurisdiction over that, I think in terms of section three of the Executive Members Ethics Act, the Public Protector can investigate matters in which the executive is allegedly involved in terms of impropriety, corruption, etc, etc.

Mr Magwanishe: What are the challenges in implementing that Act?

Adv Marais: There are several challenges. First of all the Ethics Code, the Executive Members Ethics Code, doesn't correlate exactly with the Act. And secondly, there is a 30-day period during which the Public Protector must give a report. It's almost undoable because matters emanating from those kinds of investigations are normally very complex. However, that can be remedied if the Public Protector, within a 30-day period, gives a report saying that the investigation isn't complete. She can then afterwards submit a report when it's completed.

Ms Lesoma: I am building up from the questions. When you responded to Ms Maotwe and Mr Buthelezi, you used three words ‘if it's good for me’. Do you also appreciate that Public Protector is not for you: it's for the public and to protect the public? I'm not sure what informs those words but that is for another day when we can engage on that. That brings me to what Mr Dyantji asked: two-thirds vis-à-vis 60%. Do you vote??

Adv Marais: I don't know. National elections? Yes, I do vote.

Ms Lesoma: Which means you do vote for a party. That means that you are not independent because the question will be independent of what, but I'm just making a statement on this one based on the responses that have been given.  Mr Horn raised a matter of remedial actions. Would you agree with me that some of the remedial actions from today backwards are not implemented by the relevant bodies. Would it be that those remedial actions are not indeed implementable or practical? For example, if a community asks for water and there are other limitations, would that be a reason that should be looked at and what then will be your turnaround strategy to make sure that you improve that situation so that the remedial action does get enforced and respected? I am looking at a turnaround now.

Adv Marais: I think that the remedial actions should be practical in terms of implementation when recommendations are being made according to what could be practically implemented and also in terms of the nature of it and in terms of the timeframes.

Ms Lesoma: Give me just one case scenario, in your view, of what can be done to improve co-operation and co-ordination between Chapter Nine institutions as related to independent state institutions. I know it has been asked, but I want to be specific in terms of not generalizing, so take just one case study that you can just share with us.

Adv Marais: How institutions can cooperate? I looked at Chapter Nine institutions, but I will make an example now of the Special Investigations Unit. For instance, if there are corrupt activities involved, then the Special Investigations Unit is the best unit to deal with that kind of issue, then discussions can be held prior to that in order for the Public Protector to be able to refer to them in terms of a memorandum of understanding or the SIU can refer matters to the Office of the Public Protector. The same goes for other Chapter Nine institutions.

Ms Lesoma: When we were responding to Mr Dyantji, he made a preamble that seemed to assume that you would have gone through the business plan as well as the Auditor-General’s report. Can you, just for my own sense of comfort, provide a strategic vision of the evolution of this institution over the next seven years as per your term of office, if you get appointed?

Adv Marais: I would make the Office of the Public Protector more accessible to people at the grassroots level, especially poor and vulnerable people, because I believe that, considering our history in this country, those are the people who are normally not in a position to stand up for themselves, so to speak. So I think that the Office of Public Protector should focus more on that to be more involved in matters pertaining to ordinary people and also to ensure that the truth must not just be sought, you mustn't just get the truth of the matter, but the confidence must be instilled in the public that it has actually happened.

The Chairperson: Just one last question for myself. There are institutions that are by law sworn to confidentiality. One of them is SARS (South Africa Receiver of Revenue). Section 69 of the Tax Administration Act prohibits an official of SARS from disclosing taxpayer information to any person who is not an official of SARS. To what extent, in your view, does that limit the exercise of power or the mandate of the Public Protector, if it does and can that be avoided in any way? Do you have any suggestions?

Adv Marais: There is actually a Constitutional Court case that dealt with that specific section where the Public Protector requested SARS to give personal information about a specific individual and they were not in a position to do it because they were prohibited by the law. If the law prohibits you from doing something - I'm going to start now with SAS employees, they cannot be above the law, so it doesn't mean that, because the Public Protector is asking for the information that must be done, contrary to the law, because the Public Protector is also subject to the law. So how they could have acquired tax information about somebody was by requesting the person directly for the information to see what the person's attitude would have been. Maybe he would have given the information and then it would not have been necessary to put pressure on SARS, the kind of pressure that ultimately led to the Constitutional Court case. So I think that everybody should work within the confines of the law.

The Chairperson: Even if it limits the Public Protector.

Adv Marais: If it limits the exercise of the Public Protector’s mandate, then the Public Protector must find a way to work within the scope of the mandate.

The Chairperson: Alright, I think we've come to the end of the session.

Concluding remarks

The Chairperson confirmed that a similar agenda would be followed the following day when, again, four candidates would be interviewed.

The meeting was adjourned.