Appointment of Public Protector: Selection Process and Powers

1. APPOINTMENT OF PUBLIC PROTECTOR Date: 8 June 2023.

2. 1. INTRODUCTION  This Committee is established to nominate a candidate for appointment as the Public Protector when the Adv Mkhwebane’s term of office expires on 14 October 2023.  The Committee must report to the National Assembly by 31 August 2023. 2

3. 2. CONSTITUTIONAL MANDATE  The Public Protector is a “Chapter 9” institution, established in terms of the Constitution to act independently in supporting and strengthening constitutional democracy.  The Public Protector is established to ensure government’s accountability and to provide remedies for maladministration and abuse of authority.  The Public Protector is empowered to investigate, report on, and take appropriate remedial action for a wide range of wrongdoings in the public administration. (See section 182(1) of the Constitution, 1996).  Section 182(2) provides that the Public Protector also has the additional powers and functions prescribed by national legislation. (For example, the Public Protector Act 23 of 1994 and the Executive Members’ Ethics Act, 1998.) 3

4. 3. POWERS: PUBLIC PROTECTOR ACT, 1994  The Public Protector is empowered to investigate –  maladministration in connection with the affairs of government;  abuse or unjustifiable exercise of power; or  unfair, discourteous or other improper conduct or undue delay; or  improper or unlawful enrichment or receipt of any improper advantage, or promise of such enrichment or advantage, by a person as a result of an act or omission; which results in improper prejudice.  Appoint their own staff. 4

5. 3. POWERS: PUBLIC PROTECTOR ACT, 1994  Direct (through a subpoena) any person during an investigation to submit an affidavit or declaration or produce any document in their possession.  Resolve any dispute or rectify an act or omission by mediation, negotiation, conciliation or any other means.  At any time prior or during or after an investigation, if the facts disclose some form of criminal activity, bring the matter to the attention of the NPA.  Refer any matter to an appropriate public body or authority. 5

6. 3. POWERS: PUBLIC PROTECTOR ACT, 1994  Request assistance from any person at any level of government; performing a public function or otherwise subject to the jurisdiction of the PP  Enter any premises (through a warrant issued by a magistrate/judge) and seize anything which has a bearing on the investigation.  Report in writing on the PP’s activities to Parliament at least once a year.  At any time, submit a report to the National Assembly in respect of any investigation. 6

7. 4. POWERS: EXECUTIVE MEMBERS’ ETHICS ACT, 1998  The Executive Members’ Ethics Act, 1998 empowers the PP to investigate any complaint received from the President, a MP, Premier or MPL of an alleged breach of the code of ethics governing the conduct of Members of the Cabinet, Deputy Ministers and Members of Executive Councils of the provinces. 7

8. 5. FURTHER MANDATE AND POWERS Investigate Corruption as mandated by section 6(4)(a)(iv) of the Public Protector Act read with the Prevention and Combating of Corrupt Activities Act 12 of 2004.  Receive and address protected disclosures from whistle blowers as mandated by the Protected Disclosures Act 26 of 2000.  Review decisions of the National Home Builders Registration Council (NHBRC) as mandated by the Housing Protection Measures Act 95 of 1998.  8

9. 6. APPOINTMENT PROCESS  The process to appoint a Public Protector is set out in section 193 of the Constitution:  The President appoints the Public Protector, whenever it becomes necessary, for a non-renewable term of seven years, following the recommendation of the National Assembly.  The National Assembly initiates, referring the matter to a Committee of the Assembly.  This multiparty Committee must nominate a candidate to the Assembly. . 9

10. 6. APPOINTMENT PROCESS  The National Assembly must approve the nomination by way of a resolution supported by at least 60 per cent of its members.  The involvement of 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 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. • . 10

11. 7. SELECTION CRITERIA  The criteria for appointment as the Public Protector are set out in section 193 of the Constitution and section 1A of the Public Protector Act, 1994.  Section 193 of the Constitution provides that the Public Protector must be:  A South African citizen;  Fit and proper person to hold the particular office; and  Comply with any other requirements prescribed by national legislation. 11

12. 7. SELECTION CRITERIA The Public Protector Act provides, in addition, that the PP must be a person who – for a cumulative period of at least 10 years –  is a Judge (10 years doesn’t apply in case of a Judge); or,  has practiced as an advocate/ attorney; or  is qualified to be admitted as an advocate/ attorney and has lectured in law at a university; or 12

13. 7. SELECTION CRITERIA  has specialised knowledge/ experience in the administration of justice, public administration or public finance; or  Has been a MP; or  has any combination of the above experience (not for a Judge). 13

14. 8. SUGGESTIONS REGARDING A PROCESS  There are no formal guidelines but the experience of previous committees to nominate the Public Protector and commissioners of Chapter 9 institutions can provide guidance.  Advertisement. The first step is to advertise the position (as widely as possible and in all official languages). Issue to consider: Closing date.  Compilation of all CV’s received. Issue to consider: Late nominations/applications  Publication of CVs on Parliament’s website for public comment (certain personal information is redacted. Issue to consider: Time allocated for comment; how to address negative comments received. 14

15. 8. SUGGESTIONS REGARDING A PROCESS  Questionnaire. Issue to consider: Distribution before or after shortlisting?  Shortlisting. Issues to consider: How many candidates to be shortlisted? Process?  Screening. Issue to consider: timeframes?  Interviews. Issues to consider: When, length; questions, process during the interviews.  Decision and report. 15