A closer look at the candidates for public protector

The shortlist of public protector candidates has been announced by parliament. One of the candidates for the position of public protector does not appear to meet the minimum requirements for the position, and another is the director of several companies and might face conflicts of interest, a study by Corruption Watch has shown.

The eight shortlisted candidates are advocate Kholeka Gcaleka, advocate Oliver Josie, magistrate Johannah Ledwaba, Muvhango Lukhaimane, advocate Lynn Marais, Prof Boitumelo Mmusinyane, advocate Tommy Ntsewa and advocate Tseliso Thipanyane.

The longlist had 38 candidates on it. Here are Corruption Watch’s findings relating to the eight candidates who made the shortlist.

Kholeka Gcaleka

Gcaleka is currently the acting public protector after serving as the deputy public protector. She holds a bachelor of laws (LLB) degree from University of KwaZulu-Natal, a Masters in cybersecurity governance degree, and a Masters in laws (LLM) degree from the University of Johannesburg. She has previously worked as a state advocate and senior deputy director for the National Prosecuting Authority. Additionally, she has served as a special adviser to several ministers in both the Zuma and Ramaphosa administrations. In accordance with section 1A of the Public Protector Act 23 of 1994, Gcaleka meets the basic requirements for the position of public protector.

In 2010, Gcaleka was quoted as saying that there should be no concern around the then National Director of Public Prosecutions, Menzi Simelane’s plan to close the Specialised Commercial Crime Unit and Asset Forfeiture Unit, among others. This raised controversy as she was the chair of the Society of State Advocates at the time, and her comments caused two senior state attorneys to resign.

In 2011, Gcaleka was appointed as the state prosecutor in the high-profile murder case against Richard Mdluli. This also raised controversy, as she had been a prosecutor in the case against Glenn Agliotti, which was thrown out because the state had not brought a prima facie case of murder against the accused. In 2017, a witness in the Richard Mdluli case alleged that Gcaleka had tried to coerce him into implicating Mdluli as a guilty party. It was also alleged that the recording of the meeting between the witness and the advocate was tampered with by the prosecution team.

In 2017, when Malusi Gigaba was appointed by then president Jacob Zuma to the position of minister of finance, Gcaleka was appointed as his legal adviser. This was a controversial appointment due to her 2010 comments of support for the restructuring of the criminal justice system. Also in 2017, senior Treasury officials stated that the Treasury had been “captured”, citing among other things, that during a forensic audit by then director-general Dondo Mogajane, into Eskom’s coal contracts with a company that used to be owned by the Gupta family and Duduzane Zuma, documents that should have been seen by Mogajane first were sent to then Gigaba’s advisers first, including Gcaleka.

Oliver Josie

Josie recently resigned from his position as COO of the Competition Tribunal and currently serves as a chair on the department of water and sanitation’s audit and risk committee. Josie has previously worked in executive-level legal positions within the NPA, SAPS, Standard Bank Group, City of Cape Town, and the department of economic development. He holds a Bachelor of politics, an LLB and B.Proc degrees from the University of SA. Additionally, Josie has Masters degrees in law and business leadership from University of SA. Josie meets the basic requirements for the position of Public Protector.

Johannah Ledwaba

Ledwaba is currently a magistrate and has a Bachelor of laws and B.Iuris degrees from Vista University. She received additional legal training at the Pretoria Law School. Before becoming a magistrate, Ledwaba worked primarily as a prosecutor and state advocate for the NPA, most recently with the Asset Forfeiture Unit. Ledwaba meets the basic requirements for the position of public protector.

Muvhango Lukhaimane

Lukhaimane currently serves as an acting judge at the Gauteng High Court and has occupied the position of Pension Funds Adjudicator since 2013. Her qualifications include a B.Iuris, LLM in constitutional (labour law), postgraduate diploma in management studies, postgraduate diploma in financial planning, and an MBA. In accordance with section 1A of the Public Protector Act 23 of 1994, Lukhaimane meets the basic requirements for the position of public protector, when considering her experience in public administration.

Lukhaimane was also a front-runner in the 2016 public protector process. She interviewed very well in 2016. However, the one concern which was raised in 2016 was her time in intelligence services.

Lynn Marais

Marais has an extensive career in the legal field, including experience as an advocate, acting magistrate, and various roles in Legal Aid SA and other legal practices. Marais meets the basic requirements for the position of public protector, when her cumulative experience in the administration of justice and practising as an advocate is taken into consideration.

Boitumelo Mmusinyane

Mmusinyane holds an LLD (Comparative Right to Adequate Housing), a diploma in human rights, an LLM with specialisation in human rights, and an LLB. He has held various roles, including deputy director in the faculty of law undergraduate studies, senior lecturer in private law, and as an investigator at the office of the Public Protector. Based on an assessment of his CV, it can be concluded that Mmusinyane does not hold the necessary experience as required in Section 1A of the Public Protector Act 23 of 1994, to be considered for the position of public protector. This may be due to an omission on his CV.

Tommy Ntsewa

Ntsewa is a self-employed advocate specialising in the legal areas of corporate governance, personal injury, contract, labour, corporate, mining, criminal, family, constitutional, and administrative law. He previously served as legal adviser to the minister of co-operative governance and traditional development and the Limpopo premier’s office. He holds LLB. and B.Iuris degrees from University of Lausanne. In accordance with section 1A of the Public Protector Act 23 of 1994, Ntsewa meets the basic requirements for the position of public protector.

In 2009, the Chairpersons Association demanded that Ntsewa step down from his position as chair of the SA Geographical Names Council regarding a dispute on the renaming of an area.

Ntsewa is an active director of Mohlodi Holdings, Etlang Media and Ventramax Trading. If appointed, he may face a conflict of interest. During the vetting and interview process it is therefore important to determine what business activities these companies are involved in. Do these businesses do any business with the state? Does he have an active role in running them and if appointed as the public protector, would he resign from these companies?

Tseliso Thipanyane

Thipanyane holds an LLM in international human rights, constitutional law, criminal justice and administrative law from the University of the Western Cape, and another LLM in Corporate Law from the University of Johannesburg. He has occupied various senior positions in Chapter 9 bodies, such as the SA Human Rights Commission, and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. In 2017, Thipanyane was appointed as the CEO of the SAHRC and served a five-year term. He is currently the chairperson of the Southern African Institute for Responsive and Accountable Governance, as well as the chief director for co-ordination in the Office of the Chief Justice. Thipanyane meets the basic requirements for the position of public protector.

According to the chair of the ad hoc committee to nominate a person for appointment as public protector, Cyril Xaba, the next stage in the appointment process is a two-week screening from August 1-18. During this selection phase, all shortlisted candidates will undergo suitability screening, reference checks, and qualifications verification. Following this, interviews will be conducted, and the committee will discuss the candidates. The committee aims to present its findings to the National Assembly by August 31.

•Pillay is the head of stakeholder relations and campaigns at Corruption Watch and Pearson is project specialist at Corruption Watch.