APPOINTMENT OF DEPUTY PUBLIC PROTECTOR APPOINTMENT OF DEPUTY

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 1. INTRODUCTION/ BACKGROUND • The Committee has been tasked with initiating a process in terms of section 2 A of the Public Protector Act, 1994, to fill the upcoming vacancy when the term of office of the present Deputy Public Protector, Adv. Kevin Malunga, expires on 9 December 2019. • . See ATC 41 of 2019, 8 August 2019 where the matter was referred to the Committee for consideration and report. • The Public Protector is a “Chapter 9” institution, established in terms of the Constitution to act independently in supporting and strengthening constitutional democracy 2

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 1. INTRODUCTION/ BACKGROUND • The Public Protector is established to ensure government’s accountability and to provide remedies for maladministration and abuse of authority. To do this, the Public Protector is empowered to investigate, report on, and take remedial action for a wide range of wrongdoings in the public administration. (See section 182(1) of the Constitution, which provides that: ‘The Public Protector has the power, as regulated by national legislation – (a) To investigate conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in an impropriety or prejudice; (b) To report on any conduct (c) To take any appropriate remedial action. ” • Section 182(2) provides that the Public Protector also has the additional powers and functions prescribed by national legislation. 3

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 2. APPOINTMENT PROCESS • The process to appoint a Deputy Public Protector is set out in sections 2(1)(b) and 2 A of the Public Protector Act, 1994. • The President, on the recommendation of the National Assembly, shall appoint a Deputy Public Protector for a period as determined at the time of the appointment but not more than seven years. • A DPP is eligible to serve a further term. [section 2 A(2), PP Act, 1994]. • The National Assembly shall refer the nomination of a person in terms of section 2 A(3) to be appointed as Deputy Public Protector to a Committee of the National Assembly. [section 2 A(1)(b), PP Act, 1994]. • The National Assembly shall recommend a person a) nominated by the committee; and b) approved by the National Assembly by a resolution supported by a majority its members. [section 2 A(3), PP Act, 1994] 4

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 2. APPOINTMENT PROCESS CONT … Although the process to appoint the DPP is similar in many respects to that of the PP, there are some important differences: • The process to appoint a DPP is found solely in the Public Protector Act, whereas the appointment of the PP is provided for in section 193 of the Constitution and in section 2(1)(b) and 2 A of the PP Act, 1994. • Unlike the PP, a DPP is eligible to serve one additional term. . 5

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 3. PUBLIC PARTICIPATION • The involvement of the public/civil society in the recommendation process may be provided for as envisaged in section 59(1) of the Constitution. • Broadly, section 59(1) provides for public access to and involvement in the processes/business of the National Assembly. • The provision states that the Assembly must facilitate public involvement in its legislative and other processes and conduct its business in an open manner and hold its business/ meetings in public. • Although the position of the DPP is not created in the Constitution, in the case of the appointments to the Chapter 9 institutions, section 193(2) of the Constitution, 1996, encourages the involvement of civil society in the recommendation process - “may be provided for as envisaged in section 59(1) of the Constitution”. • . 6

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 4. SELECTION CRITERIA The criteria for appointment as the Deputy Public Protector are set out in section 2 A(4) of the Public Protector Act, 1994: “The Deputy Public Protector shall be a South African citizen who is a fit and proper person to hold such office, and who (a) is admitted as an advocate or an attorney and has, for a cumulative period of at least 10 years after having been so admitted, practised as an advocate or an attorney; or (b) is qualified to be admitted as an advocate or an attorney and has, for a cumulative period of at least 10 years after having so qualified, lectured in law at a university; or (c) has specialised knowledge of or experience, for a cumulative period of at least 10 years, in the administration of justice, public administration or public finance; or (d) has, for a cumulative period of at least 10 years, been a member of Parliament; or (e) has acquired any combination of experience mentioned in paragraphs (a) to (d), for a cumulative period of at least 10 years. ” 7

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 4. SELECTION CRITERIA CONT… Therefore, the minimum eligibility requirements to be appointed as a DPP require that the DPP must be: • A South African citizen; • Fit and proper person to hold the office. AND • A practicing advocate or attorney for at least 10 years (cumulative) OR • Qualified to be admitted and has lectured in law at a university for at least 10 years OR • Have specialised knowledge of or experience in the administration of justice, public administration or public finance for at least ten years (cumulative) OR • A MP for at least ten years (cumulative) OR • Has any combination of experience mentioned above (for at least 10 years (cumulative). 8

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 5. POWERS • The Act provides that the PP is responsible for delegating powers to the DPP [section 2 A(6), PP Act, 1994]. • However, the Act provides that the DPP acts as PP if the PP is unable to performs his or her functions or while the position is vacant [section 2 A(7), PP Act, 1994 ] • The Act also provides that the PP is assisted by the DPP. is tasked with assisting the PP [section 3(1)(a), PP Act, 1994] 9

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 6. REMUNERATION AND CONDITIONS OF EMPLOYMENT Section 2 A(5) of the Act addresses remuneration: “(5) The remuneration and other terms and conditions of employment of the Deputy Public Protector shall from time to time be determined by the National Assembly upon the advice of the committee”. 10

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 7. SUGGESTED PROCESS There are no formal guidelines and it is for the Committee to determine its own processes. However, the processes followed by the relevant committees to nominate the Public Protector; commissioners to the SAHRC and the CGE in the Fifth Parliament, may be of assistance. The process can be divided into the following stages: • Preparation, which includes the calling for nominations, public participation, requests for additional information, selection of candidates and screening. • Interviews and deliberations. • Reporting. 11

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 8. PREPARATION Referral • For committees, the appointments’ process is formally initiated when a committee is referred the task of recommending to the House a suitable candidate for appointment to the specified institution. • The terms of reference are contained in the referral that is published in the ATC. • Committees should also be alert to any other provisions of the enabling legislation that may be relevant to the process. • When determining the programme, the Committee should bear in mind the date on which the office will become vacant. 12

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 8. PREPARATION CONT… Calls for nominations/advertisements: • Typically, the Committee will initiate a call for nominations or applications and an advertisement is placed in print and electronic media. • The content of advert is subject to the prescripts as outlined in the Constitution (if applicable) or the relevant enabling legislation. 13

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 8. PREPARATION CONT … Management of public participation • In the Fifth Parliament, given the extent of public interest in appointments, a number of committees allowed public comment on the applications/nominations that were received. • The names of the candidates, and their curriculum vitae, were published on Parliament’s website. • The public were given 1 -2 weeks to comment. • The publication of the curriculum vitae, however, requires that personal information is redacted. • Further, when the position attracts a large number of applications and nominations, certain administrative and technical challenges can arise. 14

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 8. PREPARATION CONT … Request for additional information/ Questionnaire • It has been proven to be extremely helpful for the purposes of both shortlisting and the interview process, if the candidates complete a questionnaire in addition to their curriculum vitae. • The approved questionnaire is forwarded to the candidate on receipt of their nomination/application. • An example of a questionnaire is available. 15

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 8. PREPARATION CONT … Selection • Once the closing date has past and all the nominations/applications are received, it becomes necessary for the committee to select the candidates that it would like to interview. • Confirming acceptance of nomination: The committee secretary should confirm that those, who have been nominated, accept the nomination where it is unclear from the documents submitted. • The Committee must agree on the number of candidates to be shortlisted for interviewing. • To assist, all applications/nominations received are captured and summarised (The questionnaire is also an important tool that supplements and often clarifies the information contained in the curriculum vitae). 16

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 8. PREPARATION CONT … • Management of late CVs: The date on which all applications and nominations are received should be recorded as the committee will need to decide whether to include any late nominations or applications for selection. • Selection Criteria provided in the Constitution and/or enabling legislation provide the minimum criteria for eligibility. 17

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 8. PREPARATION CONT… Screening • The candidates should be made aware that they may be screened. • Screening is carried out by Parliament’s Human Resources section, SAPS and SSA. • The Committee should decide at the outset whether all candidates or only those who are short-listed are screened (long vs short list). This will determine the length of time required to report-back to the Committee. • Candidates should be given the opportunity to clarify, refute findings of the various screening report prior to the interview process. 18

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 9. INTERVIEWS, DELIBERATIONS AND REPORTING • The committee secretary will contact the selected candidates and invite them to the interview. • The committee should consider: Ø The date(s) of the interviews. Ø The length of the interviews. Ø If the interview questions will be discussed by the committee before the interview. Ø It is advisable that all the interviews are held in a day but if that is impossible the committee should consider how it will ensure that there is no disadvantage for those who appear later in the process. Ø Whether the interviews will be broadcasted (if so, the candidates should be 19 informed).

APPOINTMENT OF DEPUTY PUBLIC PROTECTOR 9. INTERVIEWS, DELIBERATIONS AND REPORTING • It is advisable that the deliberations take place shortly after the interviews are finalised, as Members will still have vivid memories of the performance of candidates. • Once adopted, the committee’s report containing its recommendations will be published in the ATC. • The debate in the House will take place once the report has been adopted and published in the ATC. 20