Three judges, the current Deputy Public Protector and a previous one, the head of a civil society litigation centre, an adjunct professor and several advocates are on the shortlist to be the next Public Protector. The list emerged at Wednesday’s occasionally chaotic meeting of Parliament’s ad hoc committee to nominate the successor to Public Protector Thuli Madonsela, who leaves office on 14 October when her non-renewable seven year term ends. All the boxes were ticked for a transparent shortlisting. The ANC in Parliament is under pressure to avoid accusations of steamrolling the process, as it has been accused on previous occasions, be it over the Nkandla saga or getting their preferred candidate into public office even against widespread opposition objections. By MARIANNE MERTEN.
With legal qualifications abounding, and experience including from research and litigation both inside and outside South Africa, at least two candidates stand out for their State Security Agency (SSA) experience. This was declared in the questionnaire all nominated persons submitted alongside their curriculum vitae, and seen by Daily Maverick. And those nominations were made by opposition parties.
The DA proposed Muvhango Antoinette Lukhaimane, the Pension Funds Adjudicator since July 2013, who previously spent seven years within the SSA as research and human resources manager and chairwoman of the intelligence services council. That SSA stint came after five years in various legal capacities at three pension funds, including that of power utility Eskom.
The IFP nominated Busisiwe Joyce Mkhwebane, an SSA analyst since 1 July, who previously worked for home affairs and at the South African embassy in China as immigration counsellor following a six-year stint as senior investigator in the public protector’s office and a year as senior researcher at the South African Human Rights Commission (SAHRC).
Both candidates will face the parliamentary committee in interviews scheduled for 11 August, alongside Western Cape High Court Judge Siraj Desai, Gauteng South High Court Judge Sharise Weiner and Electoral Court judge, Advocate Michael Mthembu.
Desai’s nomination was not quite straightforward as DA MP James Selfe objected for his “highly controversial and political judgments”, outstanding written judgment and questions over his health. The objections were ruled out of order, and the ANC nomination was carried.
Proposed by the African Christian Democratic Party (ACDP) was current Deputy Public Protector Kevin Malunga, who in his questionnaire says: “I know exactly what the job entails… My appointment will ensure continuity and that the institutional memory of how we have been able to create one of the most trusted, credible state institutions in South Africa and the world is not lost”.
Former Deputy Public Protector Mamiki Shai, now Goodman, also made the shortlist. Her controversial relationships with two previous incumbents again emerged in the comments Corruption Watch submitted to the committee. She had accused Lawrence Mushwana, the Public Protector who went on to head the SAHRC, of sexual harassment and towards the end of her seven-year stint asked Parliament to investigate Madonsela. Although Goodman appeared before the justice committee in November 2012, nothing came of her allegations which DA MP the late Dene Smuts described as “office politics”, according to news reports at the time.
Other nominees include Deputy National Director of Public Prosecutions and former Asset Forfeiture boss Willie Hofmeyr – “I am a strong believer in plain language communication and have considerable experience in writing and producing educational material for communities,” he states in his questionnaire – and Advocate Bongani Majola, who in 2002 declined nomination for the post.
Also in the running is the former head of Parliament’s office on institutions supporting democracy, Nonkosi Princess Cetywayo, currently the sheriff of the court for Bellville, who lists as previous work experience a two-year stint as executive director of the Speaker’s office and one-time adviser in the Presidency and the co-operative governance minister.
Also nominated is Kaajal Ramjathan-Keogh, the head of the Southern Africa Litigation Centre (SALC), which successfully went to court for the arrest of Sudanese President Omar al-Bashir on International Criminal Court warrants of arrest. Controversially, al-Bashir was allowed to leave the country after attending the June 2015 African Union summit.
Human Science Research Council (HSRC) deputy executive director, and the director for democracy and governance, Adjunct Professor Narnia Bohler-Muller, and attorney Jill Oliphant are also among those nominated.
ANC MP Amos Masondo proposed Advocate Madibeng Chris Mokoditwa to the list of nominees.
Those 14 nominees were more than the limit of 10 the committee initially had agreed to, but Khoza said it would be unfair to limit or restrict the committee. Despite some hee-hawing over missing documentation, Khoza said afterwards that she was “extremely happy” about the process.
“It shouldn’t be seen as a partisan process… It is going to be robust,” she told Daily Maverick, but declined to comment on whether the ANC was under pressure to be seen to do everything by the multiparty democracy book. “I cannot comment on any other process… This process, and what Parliament has entrusted to me, is running as smoothly as possible.”
Corruption Watch Executive Director David Lewis said the process was run “in a very open, transparent manner”, but the organisation would continue to keep track, and to involve the public.
“Public participation is not just what we are ‘allowed’ to do,” said Lewis, adding that there would be an app for members of the public to vote on the name when it goes for approval in the National Assembly.
With the shortlist now determined, Corruption Watch is also digging deeper into the nominees’ background.
“Let’s see what that turns out,” said Lewis – a sentiment echoed by the Right2Know Campaign, which also attended the committee meeting.
The Public Protector is widely seen as one of the few public institutions not held by an incumbent considered pliant to the administration of President Jacob Zuma.
Amid much criticism by civil society, analysts and others over pliant presidential appointments in the police and prosecutions authority, the opposition benches in Parliament have expressed concern that the ANC uses its numbers to get their preferred candidates approved.
This happened in 2015, when the National Assembly approved Vuma Glenton Mashinini, a former presidential adviser, to the Electoral Commission of South Africa (IEC). Several months later Zuma appointed him IEC chairman.
And the reverse also applies. The constitutionally-established post for civilian oversight of the intelligence services has remained vacant for 15 months after the ANC could not muster the at least 18 opposition votes required, so its preferred candidate achieved the two-thirds majority threshold. The process to find a new incumbent for the civilian oversight of the intelligence services is expected to start anew when MPs return to Parliament after the local government elections.
Approval for the Public Protector requires 60% of the 400-strong National Assembly according to Section 193(5)(b)(i) of the Constitution, before the name is submitted to the president for appointment.
With interviews set down for 11 August, and the committee having to finalise its choice 10 days later before the National Assembly can consider the candidate, it’s a tight programme for a key institution in South Africa’s constitutional democracy. DM
Photo of Public Protector Thuli Madonsela by Greg Nicolson / Daily Maverick.
"Have no fear of perfection - you'll never reach it." ~ Salvador Dalí