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Changing of the guard — Public Protector set to (ignominiously) bow out while another steps in

Changing of the guard — Public Protector set to (ignominiously) bow out while another steps in
Four of the eight candidates who have applied to fill the position of South African Public Protector. From left: Pension Fund Adjudicator Muvhango Lukhaimane, Acting Public Protector Kholeka Gcaleka, advocate Tseliso Thipanyane and advocate Oliver Josie. (Photos: Supplied)

The ignoble end to Public Protector Busisiwe Mkhwebane’s stint — her unprecedented impeachment inquiry has upheld four misconduct and incompetence counts — coincides with the search for a new boss of this constitutionally established office.

Eight candidates. Two days of interviews. One nomination by 31 August.

Among the candidates are acting Public Protector Kholeka Gcaleka, appointed in February 2020 as deputy to now suspended Public Protector Busisiwe Mkhwebane, and two return candidates from the 2016 selection process: advocate Lynn Marais and Pension Funds Adjudicator Muvhango Lukhaimane.

The other candidates are magistrate Johanna Ledwaba, law professor Boitumelo Mmusinyane, advocates Oliver Josie and Tommy Ntsewa, and Tseliso Thipanyane, a former SA Human Rights Commission CEO and research head, now responsible for coordination in the Office of the Chief Justice.

Two of the shortlisted candidates were once in the SAPS — Ntsewa and Josie, who also served in the Scorpions — while another is linked to intelligence services. For a year from June 2011, Lukhaimane was chairperson of the Intelligence Services Council which makes recommendations on spooks’ conditions of service and human resource policies and, annually, on improved salaries and fringe benefits; from May 2007 to mid-2011 she was general manager of research and then human resources, and her CV lists her workplace as the State Security HQ, Musanda.

Government service was listed by others, including Gcaleka, who for 11 months from April 2017 advised then finance minister Malusi Gigaba and also served brief adviser stints with the home affairs and administration ministers, while “Lesotho government, Minister of Justice, Maseru…” is listed in Thipanyane’s CV.

A rags-to-riches tale emerges from Ledwaba’s CV. The magistrate and one-time Asset Forfeiture Unit acting deputy director lists “cleaner and tea lady” as jobs from 1991 to 1993.

The interviews are set to be held from 24 August.

As Mkhwebane’s impeachment inquiry dragged out amid her plethora of court challenges to almost the end of her non-renewable seven-year term by mid-October, this also seems set to overshadow the announcement of a new Public Protector.

Incompetence and misconduct

On Friday, Parliament’s impeachment inquiry is set to formally adopt its report after it on 26 July upheld four counts against Mkhwebane. Those include victimisation of staff, and incompetence and misconduct in the investigations into the Gutpa-linked Vrede Dairy Farm, the Bosasa funding of the CR17 campaign by Cyril Ramaphosa for ANC president, and the apartheid-era Bankorp/Absa bailout when Mkhwebane told Parliament how to change the Constitution on the Reserve Bank’s mandate.

With MPs returning from the 10-week mid-year recess and constituency period on 29 August, the final report on the old Public Protector’s guilty impeachment verdict and the new Public Protector’s nomination must be wrapped up within days of each other.

In the 2023 parliamentary search for a new Public Protector, fewer people were nominated or applied than in 2016 — 53 nominations now, against 73, including two judges, seven years ago. But it’s not been as bumpy as in 2009 when MPs had to reopen the process to boost nominations. On 7 September 2009, according to the Parliamentary Monitoring Group, MPs finally discussed 33 candidates and settled on eight to interview. 

In 2023, only 38 of the 53 Public Protector nominations and applications hit all the requirements, including an acceptance letter. Another two candidates dropped out, leaving 36 names for the shortlisting process to eight candidates on 26 July.

The just over an hour-long meeting of the committee with the long name, the Ad Hoc Committee to Nominate a Person for Appointment as Public Protector, on that day had political parties tender their top names and then compiled the shortlist of eight interviews over two days — in 2016, it was 14 candidates on one day — on the basis of how often a candidate was nominated.

The EFF only nominated Lukhaimane. The DA did not name anyone, with its MP Mimmy Gondwe saying the party would raise its objections at a later stage.

A process of screening is under way now — from candidates’ qualifications to a preliminary security vetting.

That may yet provide a curveball as it did last time in 2016. Then, the State Security Agency effectively disqualified Deputy Public Protector Kevin Malunga by raising his Zimbabwe birth as a block to top secret security clearance. It was a controversial moment in the one-day interviews of 14 candidates. At the time, it was pointed out that Malunga had fully complied with South Africa’s immigration legislative regimen by renouncing his previous citizenship, and that he had on numerous occasions acted for the then Public Protector, Thuli Madonsela.

Strictly speaking, no security clearance is required to be Public Protector, according to the legislation and Constitution, but such criteria have seeped into how South Africa conducts its public administration.

The Constitution, in section 193(5)(b)(i), requires at least 60% of the National Assembly’s 400 MPs to approve the nomination for Public Protector. This is then submitted to the President for his ratification. 

In 2009, Madonsela got unanimous backing from MPs. In 2016, the DA withheld support for Mkhwebane, who was once a State Security Agency analyst, according to her CV.

The current nomination will be crucial for the office — given scathing court judgments critical of Mkhwebane’s take on being Public Protector leading to the more than year-long and often acrimonious impeachment inquiry. DM


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