Public Protector: deliberation & recommendation

Meeting report

The Chairperson proposed a process of elimination to identify a suitable candidate as Public Protector by excluding the candidates that all parties agreed not to recommend. The elimination procedure would be used to choose the top three candidates. Thereafter one candidate for the office of Public Protector would be recommended from the top three candidates.

The first candidate proposed for elimination was Ms Johannah Kwenadi Ledwaba as Committee members unanimously found her to be highly unprepared and unable to answer basic questions.

Ms O Maotwe (EFF) agreed that Ms Ledwaba should be eliminated; however, she was sympathetic towards her because she did not bring her hearing aid which was unfortunate.

Ms M Tlhape (ANC) disagreed with Ms Maotwe and said a plan was made to accommodate Ms Ledwaba's disability. Ms Ledwaba confirmed that she was comfortable and she was given extra time to respond to her questions.

Mr W Horn (DA) said Ms Ledwaba did not meet the threshold for her to be appointed to the position.

Mr W Wessels (FF+) said she is a good magistrate, she is good in criminal law; however, there is a vacuum when it comes to administrative law and constitutional law.

The Chairperson agreed on the elimination of Ms Ledwaba.

Ms J Mananiso (ANC) proposed Adv Oliver Josie for elimination. The members found Adv Josie was very generic in answering questions posed to him. He showed a distinct lack of specific legal knowledge, particularly administrative law which is essential forthea Public Protector position.

Ms Maotwe said Adv Josie is an adult who does not vote and that “is an irresponsible person”.

Ms M Tlhape (ANC) said Adv Josie was unclear in his response to the questions.

Mr E Buthelezi (IFP) proposed Adv Lynnette Marais for elimination. The members found Adv Marais was unprepared and lacked basic experience in legal complexities that would be found in administrative law. She could not withstand the pressure: she was easily irritated and took offence easily during the interview. She was found to lack innovation; she could not share an idea or an opinion.

Mr R Dyantyi (ANC) said Adv Marais is not ready to hold the office of Public Protector.

The forth proposed candidate for elimination was Prof Boitumelo Mmusinyane.

Mr Buthelezi stated that Prof Mmusinyane is very good; however, he needs to give himself more time to mature, as he is very ambitious. He showed that he did not appreciate the magnitude of the challenges the Office of the Public Protector has to solve. He found Prof Mmusinyane's ambition to be misplaced ambition and had an attitude of “it is either my way or the high way”.

Ms Maotwe remarked that "the position does not require someone who is easily excitable because they appear on TV".

Committee members unanimously found Prof Mmusinyane to be an excellent academic; however, he lacked practical experience in the application of the law.

The fifth candidate eliminated was Adv Kwena Thomas Ntsewa.

Ms Tlhape said Adv Ntsewa had a good knowledge of administrative law and he is a good public servant. However, Adv Ntsewa struggled to answer questions posed by Adv Breyenbach and for that reason “he should be eliminated”.

Committee members found Adv Ntsewa was generic in answering questions and he was said not to have knowledge of current affairs. He lacked innovation and was unable to propose interventions for the current issue of the National Student Financial Aid Scheme (NSFAS).

The Chairperson agreed with the Committee members' remarks and said Adv Ntsewa lacked exposure to investigative work.

The Chairperson proposed the Committee to take a short break before deliberating on the top three candidates who were:
1. Adv Tseliso Thipanyane

2. Ms Muvhango Antoinette Lukhaimane

3. Adv Nompilo Kholeka Gcaleka

After the break, the first candidate to be eliminated from the top three was Adv Tseliso Thipanyane.

Ms Tlhape said Adv Thipanyane lacked a clear plan and should be eliminated.

Adv G Breyenbach (DA) said he was “wholly unsuitable”.

Ms Maotwe said that “he did not take the interview seriously”.

Mr W Horn (DA) said the advocate lacked real adjudicative experience.

The second candidate eliminated was Ms Muvhango Antoinette Lukhaimane. She was largely eliminated over her stint as HR manager at the State Security Agency at the time of the parallel intelligence structure, the Principal Agent Network (PAN) programme.

The final candidate was Adv Nompilo Kholeka Gcaleka. The Chairperson gave Members an opportunity to vote whether Adv Gcaleka was a suitable candidate for the Public Protector position or must be eliminated.

The first member to cast her vote in support of Adv Gcaleka was Ms Tlhape. She said the following about Adv Gcaleka, “Gcaleka had an excellent interview, she prepared well and demonstrated a clear vision for the Office within the confines of its mandate”.

Next in support of Adv Gcaleka was Mr Buthelezi who said Adv Gcaleka showed self-confidence, she had a general understanding of the duties of the Office of the Public Protector. “She did not come to convince us that she is the right candidate for the job but she showed us that she is there and we should not look any further”.

The third member in support of Adv Gcaleka was Mr G Magwanishe (ANC). He disagreed with Ms Maotwe that Adv Gcaleka should have disqualified herself and agreed with Mr Buthelezi's remarks.

Ms J Mananiso (ANC) remarked that Adv Gcaleka needs to be given an opportunity to be a Public Protector. “She is young, she is an African and she brings no racialism and sexism”

Ms M Lesoma (ANC) said it is unfortunate that some individuals had a predetermined position against Adv Gcaleka. Ms Lesoma applauded Adv Gcaleka and said she is fit and proper to sit in office for the next seven years.

Mr R Dyantyi (ANC) sang Adv Gcaleka’s praises. He said Adv Gcaleka has a wealth of experience in legal practice and provided a clear approach to improving accessibility to the Office. Until Adv Gcaleka came and they interacted with her, he had been worried that they did not have a suitable candidate. She dealt with his worries in the hour-and-a-half she sat there.

Adv Gcaleka had a “charged interview”, she maintained her calmness without being “stingy with the responses”. Mr Dyantyi said he was amazed by Adv Gcaleka’s “level of readiness” to lead the Office of the Public Protector. “Here you have a young woman, she’s the youngest of those that came in front of us, and she performed beyond all of her peers who were here. I was amazed by her readiness. From where I’m (sitting), we have a Public Protector. She is not just appointable but she occupied front seat as the new Public Protector.

The following Members found Adv Gcaleka was not a suitable candidate for the Public Protector position.

Adv G Breytenbach (DA) said she is “wholly unsuitable for the post”. She has a burden of baggage that cannot be dealt with. I don’t think she answered questions entirely frankly, and I don’t think she has demonstrated in her position as Acting Public Protector that she has sufficient experience to take over the top job, so we will not be supporting her,’

Adv Breytenbach noted that the outgoing Public Protector, Adv Busisiwe Mkhwebane, has done immense damage to the institution. This was confirmed in the final report of the Section 194 Committee which recommended that she be removed from office on the grounds of misconduct and incompetence as established by evidence before the committee. The reversal of this damage to the institution and its reputation will take a concerted effort from any newly appointed Public Protector.

Ms Maotwe was more critical, accusing Adv Gcaleka of dishonesty and being beholden to President Cyril Ramaphosa. "What is more disturbing about the Acting Public Protector is that she knew she had big ambitions to apply for the position of the Public Protector and yet she accepted to act knowing very well that she wants to take over,”

Mr Horn found Adv Gcaleka was evasive when asked about her time in the National Prosecuting Authority (NPA) and as a Special Advisor at Home Affairs. He agreed with Adv Breytenbach's sentiments about Adv Gcaleka.

Mr W Wessels (FF+) said as a country, we need someone who will restore public confidence in the Office of the Public Protector. “I am not convinced through the interview that the Acting Public Protector has the capability to restore that confidence. It is unfortunate that there is a cloud and question mark with regards to her impartiality regarding decision making”.

The Chairperson counted the votes and found Adv Gcaleka was endorsed by seven of eleven committee members.

Adv Nompilo Kholeka Gcaleka was duly recommended for the Public Protector position.

Thereafter, the Committee adopted its Committee Report on its recommendation.

Read: ATC230829: Report of the Ad Hoc Committee to Nominate a Person for Appointment as Public Protector, Dated 29 August 2023

The Chairperson adjourned the meeting after the minutes were adopted.