Gigaba adviser Kholeka Gcaleka set to become deputy public protector

27 November 2019 - 10:44 By Andisiwe Makinana
The EFF's Mbuyiseni Ndlozi said Kholeka Gcaleka had a tainted track record and should not be considered for the position of deputy public protector.
The EFF's Mbuyiseni Ndlozi said Kholeka Gcaleka had a tainted track record and should not be considered for the position of deputy public protector.
Image: Gallo Images / The Times / Esa Alexander

Advocate Kholeka Gcaleka is set to become SA's next deputy public protector.

Gcaleka's name was nominated by the majority ANC during a heated meeting of the National Assembly's portfolio committee on justice. Her name will be tabled at a sitting of the assembly next week for approval before it is sent to President Cyril Ramaphosa, who is the appointing authority.

Nominating Gcaleka, ANC MP Hishaam Mohamed began by saying many of the candidates that were interviewed by the committee were not able to answer due process questions, possibly due to nerves.

“Only one candidate came nearest to that, the candidate has a legal background, has been dealing with trial procedure through criminal trials, has been involved in investigative nature of work and has been exposed to the criminal justice system as a whole.

“I am obviously referring to advocate Kholeka Gcaleka, who very clearly was ahead of any other candidate.”

He said Gcaleka was confident and experienced for what was required as the deputy public protector. He said the only issues that came up during her interview was that she worked with previous finance minister Malusi Gigaba and that there were certain views about that which he dismissed as “not factual”.

“We can only objectively and rationally judge the candidate that is in front of us based on what is on the record and what we could find in terms of investigation this committee has done. And nothing disqualifies this particular candidate,” said Mohamed.

Each one of the ANC MPs in the committee voiced their support for Gcaleka and rejected claims by opposition MPs that she was not ethically fit for the job. They were at pains to say they were under no instruction on whom to appoint.

Gcaleka was a senior deputy director of public prosecutions at the NPA for five years between 2011 and 2016. She worked as Gigaba's legal adviser in the last two portfolios he held before resigning from cabinet last year.

The DA and the EFF objected to Gcaleka's nomination and instead nominated Moshoeshoe Moshoeshoe, an attorney at Sars, for the job. They argued that as Gigaba's legal adviser Gcaleka must have played a role in, or at least knew about, him lying under oath.

Both parties questioned why Gcaleka, as a legal professional, had continued to work with Gigaba after the minister was found to have lied under oath.

The EFF first voiced its opposition to Gcaleka's inclusion on the shortlist last month, citing “a tainted” track record as Gigaba's legal adviser, first when he was finance minister and later as home affairs minister.

DA MP Glynnis Breytenbach said she had found Gcaleka to be defensive and emotional during the interview, and claimed that she did not deal with the questions adequately.

“Why would any self-respecting lawyer continue to associate with a man who had lied under oath?” asked Breytenbach.

She also questioned how Gcaleka carried herself at the NPA and her alleged support for then national director of public prosecutions Menzi Simelane who allegedly said he was at the NPA to implement the decisions of the ruling party.

“She did nothing to fight for prosecutorial independence. She did nothing to ensure that prosecutions were done without fear, favour or prejudice," charged Breytenbach, herself a former senior prosecutor at the NPA.

EFF MP Mbuyiseni Ndlozi argued that institutions like the office of the public protector needed people with ethical credibility whose ethical script and ethical history was unquestionable, meaning “when we think about these people, there is no doubt in our heads about their ethical standing.”

“I see no ethical contradictions with working with a person who lied under oath. She said that more than once,” he said, trying to persuade ANC MPs to change their minds.

But they retorted that it was unfair to blame an adviser for actions of a minister, with Mohamed saying, “the fact that Gigaba lied under oath has got nothing to do with her”.

Another ANC MP, Xola Nqola, added: “Another thing I think we are doing is to persecute a person for crimes they did not commit. Advisers to ministers only advise, it's ministers who take decisions on what must happen.”

Corruption Watch said in its submission that in 2017 senior Treasury officials stated that the Treasury was “captured”. They cited, among other things, that during a forensic audit by director-general Dondo Mogajane into Eskom’s coal contracts with a company formerly owned by the Guptas and Duduzane Zuma, documents that should have been seen by  Mogajane first were sent to then minister Gigaba’s advisers, including Gcaleka.

They also raised 2010 media reports in which Gcaleka was quoted as saying 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 the asset forfeiture unit.

“This raised controversy as she was the chairperson of the Society of State Advocates at the time, and her comments caused two senior state attorneys to resign,” said Corruption Watch.

It continued: “In 2011, advocate Gcaleka was appointed as the state prosecutor in the high profile murder case against Richard Mdluli. This raised controversy, as she had been a prosecutor 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 advocate 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.”


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