New Public Protector must uphold the law and not have any political biases, say legal experts

16 Jul 2023

Acting Public Protector Kholeka Gcaleka heads the list of 38 candidates vying for the chance to head the Chapter 9 institution.

The search for a new Public Protector is in full swing as the names of 38 legal practitioners who have either applied for the position or have been nominated were revealed in Parliament last week on 12 July.

Legal experts have told Daily Maverick that the suitable candidate for the position should understand the rule of law and prioritise the public.

Black Lawyers’ Association president Bayethe Maswazi says that the next Public Protector must have a commitment to and understanding of the rule of law.

“Parliament should choose the best possible candidate; they have the prerogative to do so as the majority will determine who is appointed,” he said.

The Law Association of South Africa said that before a candidate is even considered they should have a certificate of good standing from the Legal Practice Council (LPC), as the statutory regulator of legal practitioners.

“All applicants should be treated fairly without fear, favour or prejudice, and the person appointed should be the candidate that is believed and evidenced to have the best potential to fill this important post as a competent upholder of the Constitution and the rule of law, putting the constitutional mandate first above all other tasks or pressures,” according to the association.

Constitutional Law expert Prof Pierre de Vos said that in addition to having all the required qualifications and good moral standing, the Public Protector appointee should also have an understanding of South Africa’s social, political and economic context, and be familiar with the struggles and difficulties faced by especially marginalised and poor people.

“Learning from previous experience, it is imperative that the new PP is honest, incorruptible, competent, knowledgeable about the law, fair but fearless and scrupulously independent and impartial. This means most or perhaps all candidates who are closely associated with any political party should ideally not be considered. A commitment to human rights and the achievement of social justice and respect for the rule of law are also important” De Vos said.

Familiar faces in the running

The names of Acting Public Protector Kholeka Gcaleka, former SA Human Rights Commission Gauteng head Buang Jones, former CEO of the SA Human Rights Commission advocate Tseliso Thipanyane and Nombulelo Beauchamp are among those who are vying for the position.

Gcaleka received the most nominations out of the list of 38 possible contenders.

Other well-known legal figures who declined nomination include advocate Tembeka Ngcukaitobi, advocate Dali Mpofu, DA MP Glynnis Breytenbach and former Public Protector Thuli Madonsela.

According to Section 183 of the Constitution, the Public Protector is appointed for a non-renewable period of seven years. Suspended Public Protector Busisiwe Mkhwebane’s term will end in October, which has led to a Parliamentary ad-hoc committee beginning the process of appointing her successor.

The ad-hoc committee is proportionally composed of members of all parties in Parliament. Once it has made its recommendation, the nomination must be approved by Parliament by a resolution adopted with a supporting vote of at least 60% of the members.

The appointment of a new Public Protector comes amid a row over Mkhwebane’s suspension. On Thursday, 13 July, the Constitutional Court handed down a ruling which found that President Cyril Ramaphosa’s decision to suspend Mkhwebane was sound.

Mkhwebane had argued that Ramaphosa had a bias against her because of the impeachment investigation, but the Constitutional Court ruled that the evidence does not show that he acted in a biased manner.

Read more in Daily Maverick: ConCourt says no bias in Ramaphosa’s suspension of Mkhwebane

In June 2022, Ramaphosa suspended Mkhwebane in accordance with Section 194(3) (a) of the Constitution, which provides that the President may suspend the Public Protector (or any member of a Chapter 9 institution) “at any time after the start of proceedings by a committee of the National Assembly for [their] removal”.

This was a month before Mkhwebane was due to face the Section 194 impeachment inquiry process in the National Assembly. When she was suspended, Mkhwebane was about to investigate allegations against Ramaphosa relating to the theft of money from his Phala Phala farm.

Since then, Gcaleka has been at the helm of the Chapter 9 institution. She has already faced a backlash for her report into the Phala Phala matter with many accusing her of being pro-Ramaphosa.

The report, released by the Acting Public Protector on Friday, 30 June 2023, regarded allegations that there was a risk of a conflict of interest between the constitutional duties of the President and his obligations and his private interests arising from or affected by his alleged paid work at Phala Phala farm. It found that the allegations were unsubstantiated.

The report stated that the evidence brought forward by DA leader John Steenhuisen that Ramaphosa abused his position of power in relation to using state resources to investigate the crime of housebreaking at the farm was not substantiated by the evidence.

In her recommendations, Gcaleka said Minister of Police Bheki Cele must take note of findings of maladministration and improper conduct against the SAPS in connection with the allegation that members of the SAPS attached to the Presidential Protection Service acted improperly by investigating the crime of housebreaking, the intent to steal and theft which took place at the farm, “in line with the authority vested on the Minister of Police, in terms of section 206 of the Constitution”. DM

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Familiar faces in the running