In politics, optics count. And for the ANC, supporting the current acting Public Protector Kholeka Gcaleka – the deputy Public Protector – is a nod to youth; a nod to supporting women’s empowerment and a nod to continuity in office.

When ANC MP Qubudile Dyantyi said during the interview, “If you are successful in this position, you are the youngest Public Protector”, Gcaleka’s response hit the nail on the head: “It would be a statement to the country that young leadership is what the country needs…”

Earlier in the interview, she deflected questions about her ANC membership by saying she had been a member at least a decade ago.

On Tuesday, IFP MP Mzamo Buthelezi agreed this 10-year lapse would be a sufficient buffer –and supported Gcaleka. “… (S)he confirmed we should not look further.”

That was the moment it became clear the governing ANC stood to get what the political grapevine had as its preferred choice. As ANC MP Manketsi Tlhape had motivated, “Advocate Gcaleka meets all the requirements for the position and has demonstrated a clear understanding of the mandate…”

National Assembly vote

The IFP’s 14 parliamentary seats are crucial for the ANC and its 230 MPs to make the 60% support threshold, or 240 votes. Support is also expected from several two- and one-seat parties such as GOOD, National Freedom Party, African Independent Congress and Al Jama-ah.

But to hit those numbers, the governing ANC must have all its MPs in the House, including ministers and deputy ministers who frequently proffer “government business” as an excuse for missing parliamentary sittings.

If that minimum 60% support is met, the National Assembly sends Gcaleka’s name as the next Public Protector to President Cyril Ramaphosa for formal appointment to a seven-year, non-renewable term … and the search for a new deputy Public Protector begins.

If the constitutional threshold is missed, Gcaleka remains acting – her deputy Public Protector term ends on 31 January 2027 – while the process to find a new Public Protector restarts.

Objections

That vote and debate in the National Assembly are set to be noisy as the DA, EFF and Freedom Front Plus have objected to Gcaleka. There are possibly others too.

“She is wholly unsuitable for the post. She has a burden of baggage… I don’t think she answered questions entirely frankly. We will not be supporting her,” said DA MP Glynnis Breytenbach, who, in a subsequent statement, called for the reopening of the search for a new Public Protector.

“The position is of far too great an importance to settle for an unsatisfactory candidate for the second time in a row,” she said.

Freedom Front Plus MP, Wouter Wessels, also did not support Gcaleka’s nomination.

“I am not convinced the current acting Public Protector can restore that confidence (in the office). There is a cloud (over her head) and questions regarding her impartiality and decision-making… To appoint her would be to the detriment of the Office of the Public Protector and our Constitution.”

The EFF, which had called for Gcaleka to withdraw at the start of the parliamentary process of finding the next Public Protector, on Tuesday said to appoint “a person like that is dangerous to South Africa’s democracy”.

Or, as EFF MP Omphile Maotwe also put it, “She’s got a cloud hanging over her head and giving her the Office of the Public Protector with a cloud hanging over her head is suicidal.”

That cloud, or questions, had emerged in the interview.

Read more in Daily Maverick: ‘I didn’t know’, two Public Protector candidates tell MPs on controversies at SSA, NPA and elsewhere

That included Gcaleka in late June 2023 clearing Ramaphosa in the presidential Phala Phala farm forex saga as he declared, as required, his interests in the farm and that he received no income from there.

Also included is her 2017 advisory stint to then finance minister Malusi Gigaba, whose relationship with the Gupta brothers during the State Capture era emerged at the Zondo Commission, and her proximity to one-time prosecutions boss Menzi Simelane, against whom the Constitutional Court in 2012 upheld a finding that he was not a fit and proper person for the post.

On Tuesday, after some two hours of deliberations on two days of interviews with eight shortlisted candidates, the Ad Hoc Committee to Nominate a Person for Appointment as Public Protector named Gcaleka as the next incumbent, on the back of an ANC-IFP majority ahead of the committee’s Thursday deadline.

Such disagreement on Public Protector candidates is not new. Only Thuli Madonsela got the unanimous backing of the House on 22 September 2009, but only after the process was reopened after a disappointing first round.

When Lawrence Mushwana succeeded inaugural Public Protector Selby Baqwa in 2002, it appeared to be a blatant political choice – Mushwana was an ANC parliamentarian and National Council of Provinces deputy chairperson. But the National Assembly approved him with a vote of 278 for and 32 against on 27 September 2002, as the ANC was joined by the New National Party, IFP and four smaller parties.

On 7 September 2016, Busisiwe Mkhwebane received 266 votes in the National Assembly to become Public Protector; 79 votes against and one abstention were cast.

That Mkhwebane faces an impeachment vote in the dying days of her term for misconduct and incompetence has influenced the interviews for the new Public Protector.

The matter of restoring the standing of the Office of the Public Protector, tarnished after years of controversies and scathing judgments, was a question put to all shortlisted candidates.

But with a preoccupation with elites in South Africa, amid deepening inequality, hunger and poverty, whoever the Public Protector is has their work cut out for them.

As the Constitutional Court put it in the landmark March 2016 Nkandla judgment, noting “far, wide and deep” poverty and that litigation was “prohibitively expensive” for the average citizen, “the Public Protector is thus one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in state affairs and for the betterment of good governance…” DM