Controversy on the ANC’s preferred new deputy public protector, but unanimity on making sure Jiba’s not coming back
Advocates Nomgcobo Jiba and Lawrence Mrwebi are definitely out as Parliament’s justice committee upheld their presidential sacking. Advocate Kholeka Gcaleka, or ‘our comrade’ as an ANC MP described her, secured the deputy public protector nomination. And draft rules on removing a Chapter 9 head such as the public protector are now agreed upon.
On Tuesday the status of key institutions central to public life were dealt with in various venues across Parliament — from bolstering the turn-around at the National Prosecuting Authority (NPA) to a controversy over the nomination to the Office of the Public Protector where Kevin Malunga’s term as deputy ends on 9 December 2019. Also, there was another step in the parliamentary process that could see proceedings to remove Public Protector Busisiwe Mkhwebane from office in 2020.
Where it didn’t quite go to plan was in formalising a nomination to the Public Service Commission, the oversight entity for the civil service. The ANC failed to muster enough MPs in the House to push through as the preferred choice Zanele Hlatshwayo, a former Msunduzi mayor between 2007 and 2010 who has a dubious financial record, according to the DA that has opposed her candidacy.
The choice by Parliament’s justice office not to restore to their former jobs either ex-deputy national director of public prosecutions Nomgcobo Jiba, nor one-time specialised commercial crimes unit boss Lawrence Mrwebi, finally closes a troubled chapter at the prosecution services.
Sharply criticised in several court rulings, Jiba and Mrwebi are widely seen as key to the hollowing out of the prosecuting services during the years of the Jacob Zuma administration.
Tuesday’s deliberations on whether to uphold or reject a presidential sacking as is required by the National Prosecuting Agency (NPA) Act – it’s one of the checks and balances to presidential powers — was long overdue. In part that’s because of the May 2019 elections, which meant President Cyril Ramaphosa only informed Parliament of his decision taken that month in June. But it was also delayed because of court action by Jiba against her dismissal.
In late October 2019, the Western Cape High Court dismissed Jiba’s interdict application to stave off the parliamentary oversight process pending review of Judge Yvonne Mokgoro’s April 2019 report that had recommended her dismissal, alongside that of Mrwebi.
On Tuesday, parliamentary legal adviser Siviwe Njikela told the justice committee they’d been officially informed that Jiba had now dropped all legal challenges.
“It’s now entirely in the committee’s discretion to decide…”
Effectively, Jiba’s dropping of all court action means she has accepted her dismissal. Not so Mrwebi, who after the deadline to make a further written representation, wrote to MPs that he wanted to address them.
EFF MP Mbuyiseni Ndlozi was the sole voice in support of Mrwebi. “It’s not a train smash to hear the man,” said Ndlozi, although he was overruled.
“We have not found compelling reasons to restore advocate Mrwebi and advocate Jiba,” said Justice Committee Chairperson Bulelani Magwanishe.
The parliamentary process means the decision will be put in a report that’s to be adopted next Tuesday, 3 December 2019, in the House when the committee is also scheduled to present its report on its choice for the next deputy public protector.
That did not go smoothly or unanimously as the DA and EFF respectively “objected to” and “rejected” the ANC choice, carried on the back of ANC numbers in the committee — advocate Kholeka Gcaleka, the legal adviser to Malusi Gigaba at the time the minister was found to have lied under oath in the controversy over the private Fireblade terminal at Oliver Tambo International Airport.
Both the DA and EFF instead supported advocate Moshoeshoe Moshoeshoe, who they said would be able to support and work with Mkhwebane.
DA MP Glynnis Breytenbach, who was not overwhelmed by any of the candidates, did not mince her words about Gcaleka.
“She continued to work for a minister who had lied… She supported Menzi Simelane who when he first got to the NPA said “I’m here to implement the policies of the ruling party,” said the DA MP, also asking: “Why would any self-respecting lawyer continue to associate with a man who had lied under oath?”
Simelane’s appointment to head the NPA by then-president Jacob Zuma was ruled unlawful and illegal by the Supreme Court of Appeal in December 2011, and subsequently confirmed by the Constitutional Court.
Ndlozi highlighted Moshoeshoe’s experience in the South African Revenue Service (SARS) as financial legislation experience was a good skill to have. “You know I don’t like SARS (but) he will serve as a great, great resource to the public protector.”
He sharply criticised Gcaleka, pointing out how she had to be “pressed” to disclose her ANC youth league membership — Gigaba was ANC youth league president from 1996 to 2004 — and raised concern over her reply in the interviews that there was “no ethical contradiction” in continuing to work for a minister who had lied under oath.
ANC MPs moved to dismiss the criticism, maintaining there was nothing which would disqualify Gcaleka, who was described by ANC MP Hishaam Mohamed as “being way ahead”.
It was in this discussion that ANC MP Nomathemba Maseko-Jele called the party’s choice as deputy public protector “our comrade Kholeka” before correcting herself to say “advocate Kholeka”, and arguing that she had been asked all these questions around her tenure as special adviser to Gigaba and Simelane at the interview.
“She was asked about the Guptas, and she also answered that.”
Gcaleka became unemployed after Gigaba resigned on 13 November 2018 amid a solo sex scandal — special advisers’ terms are tied to the minister’s — but she has been employed as legal adviser to Public Service and Administration Minister Senzo Mchunu.
Much was made of that by ANC MPs.
But the opposition criticism seemed to have hit a nerve, particularly when Ndlozi asked why the committee “bothered with people with questionable records”, when others without such track records were available.
“Nobody dictated to me, or others, for the record,” said Mohamed.
The ANC, in its factional jockeying, has a fractured relationship with the public protector. One grouping is vocally and publicly loyal to the incumbent Mkhwebane, who also has received support from the EFF. Other ANC circles acknowledge the damage to the public protector’s standing by the criticism in judgments of her conduct, a series of successfully challenged reports, including that of the Absa Bankorp apartheid bailout and at least two personal cost orders against her.
In the end, there was no vote as Magwanishe wrapped it up — “It’s clear the committee is divided.” The DA’s objection and the EFF’s rejection were noted.
Not at all divided was the rules committee, where a two-step process to remove a head of a Chapter 9 institution on grounds of misconduct, incapacity or incompetence, was unanimously adopted.
The process requires a substantive motion, one with proof to back up the allegation of misconduct, incapacity or incompetence that the Speaker would refer to an independent panel of three for an initial inquiry.
No oral evidence would be heard, although written submissions could be made. If the independent panel, which has 30 days, agrees there were grounds for removal proceedings under Section 194 of the Constitution, the Speaker then refers the matter to a Section 194 committee of MPs.
That committee may hold public hearings, and make a recommendation on the future of the incumbent on that Chapter 9 institution. If the recommendation is removal, the matter must go to the National Assembly where a vote must reach the required majorities — a simple majority for the commissions on human rights, gender, linguistic rights and the electoral commission, but a two-thirds majority for the removal of the auditor-general or the public protector.
These draft rules are expected to be adopted in the National Assembly next week in the closing days of the 2019 parliamentary calendar.
And that means the possible removal of Mkhwebane, first raised by the DA in September 2017, could be a step closer. DM