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• The nominated deputy public protector Advocate Kholeka Gcaleka. Image: Mail and Guardian.

By Thato Mahlangu

The parliamentary committee on justice and correctional services announced on 27 November 2019 its recommendation of Advocate Kholeka Gcaleka as the new deputy public protector (DPP).

Now that her recommendation has been endorsed by the National Assembly, Gcaleka only needs to be appointed by President Cyril Ramaphosa before taking the reins from the outgoing DPP Advocate Kevin Malunga, whose term ends on 9 December.

Gcaleka was nominated from a list of seven short-listed candidates, out of 29 at the start of the process which included interviews, public participation and the vetting of all candidates for the post of DPP.

The committee said in a statement that the DPP’s term would be determined by the president and may not exceed seven years. At the end of the term, the DPP may be reappointed for one additional term.

Controversy and questions

Her recommendation has raised some concerns as Gcaleka used to be the legal advisor to former home affairs minister Malusi Gigaba and worked with ANC MP Menzi Simelane, a former national director of public prosecutions.

News24  reported on Tuesday 26 November 2019 that the ANC nominated Gcaleka for the position despite opposition MPs questioning her integrity and suitability for the job.

The article stated that Gcaleka currently works as the legal adviser for Senzo Mchunu, the minister of public service and administration.

EFF MP Mbuyiseni Ndlozi questioned the fact that Gcaleka continued to work for Gigaba even when the courts found that he lied under oath, and also did not declare she was an ANC Youth League member.

The process

The committee’s media officer Rajaa Azzakani said the committee received 29 nominations or applications but three declined the nomination or withdrew their application.

“Of the remaining 26 candidates, six candidates did not meet the requirements for the position as laid out in the Public Protector Act, and therefore they were not considered,” explained Azzakani.

On 23 October 2019, Azzakani said, the committee shortlisted a total of eight candidates:

  • Advocate Shadrack Nkuna
  • Advocate Gcaleka
  • Buang Jones
  • Advocate Moshoeshoe Toba
  • Advocate Puleng Matshelo
  • Advocate Lwazi Kubukeli
  • Advocate Noxolo Mbangeni
  • Advocate Sonwabile Mancotywa.

“Once shortlisting took place, all candidates were requested to complete a questionnaire, based broadly on the one that the Judicial Services Commission makes use of in the case of judicial appointments. The questionnaire also contained provisions for disclosure,” Azzakani said.

Vetting of candidates

She further explained that the committee agreed that the shortlisted candidates be subjected to security screening and that their academic qualifications be verified.

“Parliament was asked to facilitate the security screening of the candidates, while its human resources division undertook the verification of the academic qualifications,” explained Azzakani.

This then led to Mancotywa notifying the committee about his intentions to withdraw from the process.

The committee’s secretary Vhonani Ramaano said although Mancotywa withdrew from the process, his withdrawal had nothing to do with the verification of his qualifications.

“He did not provide reasons for his withdrawal,” Ramaano said.

According to the committee, before shortlisting commenced, the committee published the names of all candidates with their accompanying CVs on Parliament’s website after redacting certain personal details.

Public participation

“Members of the public were given an opportunity to make submissions on the candidates,” the committee said in a statement.

He said the committee welcomes the considerable public interest that its work has attracted.

“The committee agreed to facilitate public participation in order for the process to be open and transparent. We are therefore indebted to members of the public for their contribution to this process in order for us to be able to make this nomination to the National Assembly,” he said.

Our involvement

Corruption Watch made a submission to Parliament on 16 October 2019 with the aim of contributing to the appointment of the next deputy public protector. We ran the Bua Mzansi – Deputy Public Protector Campaign to ensure that his replacement is appointed in a transparent way that allows for public participation and public influence.

There was an opportunity for members of the public to review the CVs of candidates – an important step in the process of influencing the calibre of leaders appointed to key institutions.

Since 2016, Corruption Watch has been campaigning around the appointment processes of leaders to key crime and corruption fighting institutions in South Africa.

The objectives of our work are largely to ensure that candidates are appointed in a transparent manner, assessed against clear merit-based and objective criteria and that avenues for public participation in appointment processes are made available.

Our submission

Corruption Watch’s submission noted several controversies surrounding Gcaleka. In 2010 Gcaleka, who was the chairperson of the Society of Advocates at the time, was quoted as saying there should be no concern around Simelane’s plan for restructuring the criminal justice system, which included proposals to close the specialised commercial crime unit and asset forfeiture unit.

In 2017, allegations emerged that Gcaleka had tried to coerce a witness, during the Richard Mdluli murder trial in 2011, into implicating the accused, as well as that the prosecution team tampered with evidence.

Also in 2017, senior treasury officials alleged that Gcaleka, who was an advisor to the finance minister at the time, was part of a network attempting to ‘capture’ National Treasury.