Candidates call for clarity on deputy public protector's role to avoid clashes

12 November 2019 - 21:01 By Andisiwe Makinana
Deputy public protector Kevin Malunga takes a selfie with his former boss, Thuli Madonsela. Parliament is currently interviewing candidates for his replacement.
Deputy public protector Kevin Malunga takes a selfie with his former boss, Thuli Madonsela. Parliament is currently interviewing candidates for his replacement.
Image: Simphiwe Nkwali

Clearly defined responsibilities for a deputy public protector would go a long way in ensuring that the institution of the public protector functions optimally.

This was the view of candidates interviewed by parliament for the soon-to-be-vacant position on Wednesday. MPs asked the potential deputy public protectors to state how they would handle differences with the head of the institution, should relations sour.

Buang Jones, the acting head of legal at the South African Human Rights Commission (SAHRC), said there had to be clear protocols on the delegation of powers and functions of the deputy public protector in order to ensure that the institution is effective.

“I don't know whether that is in place at the moment, but the [Public Protector Act] is very silent: it does not outline and spell out what are those functions and powers,” he said.

Jones said it is important for a deputy public protector to understand his or her role so that the position could be aligned with the strategic goals of the institution. He added that he understood from the act that the role is a supportive one.

He also believed that any conflict that may arise between the office's top two officials should be dealt with internally and managed accordingly, adding that “courtesy and decency should permeate our work”.

Advocate Shadrack Nkuna, the deputy director of public administration investigations at the Public Service Commission (PSC), said he would emphasise what he called the fundamentals of teamwork to the public protector.

He warned that if the two most senior officials don't work together, it would create fertile ground for opposing camps to develop within the office.

Nkuna said he would expect the public protector to assign him with meaningful roles.

“It cannot be the intention of this portfolio committee to go through the process of looking for a deputy public protector, only [for him or her] to go there and do some menial tasks. I would expect to be given serious responsibility in that office,” he said.

A former police officer, Nkuna said his work at the specialised commercial crimes unit and his current job at the PSC had given him the necessary experience that would be useful in the public protector's office.

Moshoeshoe Moshoeshoe, a senior lawyer for Sars, also emphasised the need for clarity concerning the role of the deputy public protector. “It limits or mitigates the source of conflict that might come up,” he said.

Moshoeshoe said if selected, he would take leadership and engage the public protector to talk about identifying clear goals and how they are going to be measured.

The Public Protector Act provides that “the deputy public protector shall have such powers as the public protector may delegate to him or her”.

Deputy public protectors have a history of clashing with their principals – from Mamiki Shai's fights with Lawrence Mushwana and later with Thuli Madonsela, to outgoing deputy public protector Kevin Malunga clashing with both Madonsela and later with Mkhwebane.

As far back as August 2006, parliament was called to intervene in a conflict after Shai made a slew of allegations against Mushwana. One of her complaints related to the definition of her duties and functions as the then deputy public protector.

Twelve years later, in October 2018, Malunga told MPs about how Mkhwebane had sidelined him because he did not have the top security clearance.

Mkhwebane confirmed that she had stopped Malunga's involvement in the office's investigative work because of his lack of security clearance. She said it was against the law for Malunga “to do the work” and instead made him responsible for staff training.

She later delegated to Malunga the responsibilities of overseeing the backlog of old complaints and of chairing a task team monitoring the speed with which investigations were processed and closed. Malunga also checked the quality of all draft reports and notices sent to implicated parties for response, on top of training investigators in procurement law.

The interviews for deputy public protector continue on Wednesday.