Mkhwebane’s ‘conflict of interest’ derails deputy public protector search

The process of finding a replacement for former Deputy Public Protector Kholeka Gcaleka will need to be restarted entirely due to a conflict of interest involving two of the candidates.

The Portfolio Committee on Justice and Correctional Services met on Tuesday to deliberate and select their preferred candidate for the Deputy Public Protector position after the interview process held last month.

Conflict of interest claims

Seven shortlisted candidates were interviewed in the cloud of allegations of conflict of interest and perceived bias.

It was revealed that two of the candidates, Sekgame Shadrack Tebeile and Ponatshego Mogaladi, had some kind of connection with former Public Protector and Economic Freedom Fighters (EFF) MP Busisiwe Mkhwebane.

Mogaladi, who works for the Public Protector’s office, was embroiled in a legal battle with Mkhwebane after her former boss instituted disciplinary proceedings against her.

Her dismissal was later overturned by the Labour Court in 2021.

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Mogaladi previously appeared in Mkhwebane’s impeachment hearings, testifying that the former public protector intimidated and victimised staff during her tenure.

Tebeile on the other hand currently represents Mkhwebane on a pro bono basis in a court case relating to her impeachment.

Mkhwebane was asked to recuse herself from the interviews but refused, with the committee then deciding to request a comprehensive legal opinion on the matter.

Deputy Public Protector process

During Tuesday’s meeting, parliamentary legal adviser Zingisa Zenani highlighted that the rules of the National Assembly provided that an MP make a declaration when there was a conflict of interest in line with the code of ethical conduct or withdraw when the matter is considered.

Zenani said Mkhwebane should have recused herself from the interviews either entirely and be replaced by another EFF MP or not participate when Tebeile and Mogaladi are interviewed.

“With regard to whether or not the relationship between Mkhwebane and the two candidates creates a perception of bias or conflict of interest, our answer to this is in the affirmative. Based on the facts presented, we submit, there is a reasonable apprehension of bias,” she told the committee.

READ MORE: ‘She should’ve kept quiet’: Mkhwebane slams ’embarrassing’ Gcaleka

“With regard to whether this warrants her recusal from the interviews in so far as the two candidates are concerned, we submit that it does, based on the test for a reasonable apprehension of bias.

“Our conclusion stems from, in the first instance, the fact that Mkhwebane is deriving a financial and personal benefit from the Tebeile relationship, and in the second instance — with regard to Ms Mogaladi the findings of the Section 194 Inquiry, read with the [Labour Court] judgment, suggest strongly that any reasonable person will apprehend bias on the part of Mkhwebane given their history,” the legal opinion further reads.

Watch the meeting below:

Zenani pointed out that the National Assembly rules did not compel MPs to recuse themselves, however, failure to do so could potentially result in a breach of the code.

She also explained the former public protector not recusing herself would leave the door open for “any aggrieved party” to approach the court.

“In the event that Advocate Mkhwebane, persists with her position that she is not conflicted, there is a possibility of a legal challenge being mounted. To avoid such challenge, this scenario would place an onerous task on the committee chairperson to ensure fairness throughout the process.”

Mkhwebane objects

While the committee accepted the legal opinion, Mkhwebane disagreed.

“The conclusion which the legal advisor has decided on is very much not well researched and biased,” the EFF MP said.

The former public protector argued that none of the candidates raised objections about her participation in the interviews.

She also raised a question about why the Democratic Alliance (DA) brought up the issue of conflict of interest at the outset of the interviews, considering they had not raised it during the meeting where eight candidates were shortlisted.

“Deciding on who is the next deputy public protector is a committee decision, it is not my decision,” Mkhwebane added.

READ MORE: Best thing Gcaleka can do is restore the public trust

DA MP Glynnis Breytenbach responded to Mkhwebane’s comments.

“Ms Mkhwebane is the person who has the conflict. She is the person who knows that two people in question and the rest of us don’t so the only time we can raise it is when we are in possession of the CVs, having read them and seeing that she arrives on the morning to do the interviews,” Breytenbach said.

Meanwhile, the committee’s chairperson, Bulelani Magwanishe confirmed that the process would start from scratch and a report would be sent to the National Assembly.

“We need to account in detail why we could not finish the process because failure to do that might amount to fruitless expenditure,” he said.

Magwanishe said the committee wanted to avoid being taken to court.