Deputy public protector candidates grilled by justice committee

A candidate for the position of deputy public protector was grilled about her time at the National Prosecuting Authority (NPA) and working for former minister Malusi Gigaba, while another was taken to task for working for the apartheid-era Bantustan Bophuthatswana’s military and another for his involvement with Umkhonto we Sizwe.

On Wednesday, the portfolio committee on justice and correctional services interviewed the final three of seven candidates for the post, which becomes vacant next month as the term of the incumbent, Kevin Malunga, comes to an end.

The legal adviser for Minister of Public Service and Administration Senzo Mchunu, advocate Kholeka Gcaleka who was a former senior prosecutor at the NPA and legal adviser to Gigaba while he was the minister of home affairs and finance, was the subject of submissions by the organisation Corruption Watch to the committee.

Corruption Watch said Gcaleka, as chairperson of the Society of Advocates at 2010, supported the then-National Director of Public Prosecutions (NDPP) Menzi Simelane’s plan to close the specialised commercial crime and asset forfeiture units.

In 2017, a witness in the murder case against former crime intelligence head Richard Mdluli alleged that Gcaleka had tried to coerce a witness and tampered with the recording of the interview.

Also in 2017, senior Treasury officials alleged that Gcaleka, who was by then Gigaba’s legal adviser, saw a report about the Guptas-Tegeta deal before the director-general.

She was allowed to respond to the allegations, which she described as “highly unfair”, saying in the statement Corruption Watch referred to, she did not support Simelane’s disbandment of the units, but expressed support for his transformation agenda.

The press release, still to be found on the Politicsweb website, stated: “As guest of honour, the AGM [annual general meeting] was addressed by the National Director of Public Prosecutions [NDPP], advocate Menzi Simelane, who gave valuable and informative inputs on the current restructuring and transformation in the NPA. The society, under its new leadership, extends its gratitude and unequivocal support to the NDPP in his courageous transformation agenda.”

Simelane, whose appointment by former president Jacob Zuma was found to have been invalid by the Constitutional Court, removed experienced former prosecutor Gerrie Nel from the Glenn Agliotti case and appointed Gcaleka to the prosecuting team.

She told the committee it was the only high-profile case she prosecuted where there was an acquittal, adding she was not the lead prosecutor on the case.

Gcaleka said she was against the NPA’s decision to drop the murder charges against Mdluli, and it was “fortunate” that Freedom Under Law had won a court decision that the case be reinstated.

She denied she coerced the witness, saying the court had listened to the recording of the interview and found nothing untoward.

Gcaleka said she only saw the Tegeta report after the director-general signed it, and the report was referred to the Hawks.

“I can’t hear any indication that I have done wrong,” she added.

DA MP Glynnis Breytenbach, who was also in a senior position at the NPA at the time, described Simelane as a “wrecking ball in the NPA”.

“You supported him vociferously,” Breytenbach said. “Why did you not fight for the independence of prosecutors? Why did you not fight for the rule of law?”

Gcaleka said she never supported the dismantling of the units and she was not aware of interference with prosecutions. She added she supported his principle of transformation and required his support for the well-being of prosecutors.

DA MP Werner Horn asked if she was Gigaba’s legal adviser when he lost the Fireblade Aviation case in which the court found he had lied.

She said the case was initiated before she was appointed and she had no knowledge of the factual basis of the case.

EFF MP Mbuyiseni Ndlozi asked: “Why did you continue to work for him [Gigaba] after the court said he lied under oath?”

With a surprised expression, Gcaleka said: “I had no reason not to work for him.”

Ndlozi also asked why she had left the NPA if she was passionate about justice.

She said the NPA was volatile and there were threats on her life in 2010, adding she had reached a senior position at a young age and felt there was no room to grow there.

“A fight for justice doesn’t only mean standing in court,” she said, adding she wanted to serve justice by advising a minister on the law.

“I’m not sure of your ethical compass,” Ndlozi said.

“My ethics cannot be questioned,” she responded.

Also in answer to Ndlozi, Gcaleka said she had not been a member of any party for at least eight years but that she was previously a leader in the ANC Youth League.

Earlier, advocate Lwazi Kubukeli appeared before the committee.

He said one of the Office of the Public Protector’s key challenges was the perception that it was biased, which eroded public trust.

“I think that office needs to win back public trust because it is such an important institution in our democracy,” he said.

ACDP MP Steve Swart referred to his history as a member of Umkhonto we Sizwe, asking him if he would be impartial if he was to investigate a senior politician.

Kubukeli said when he returned home from exile he studied and started to work hard for his family.

“I never asked a favour from any politician. If somebody comes to me as deputy public protector and asks me to cut corners, I will call the Hawks on speed dial.”

He said he was “distressed” about the direction the country was taking, with corruption robbing the poor. “It is even worse when it’s done by former liberation so-called heroes.”

ANC MP Xola Nqola and Ndlozi took advocate Puleng Matshelo to task for working for the Bophuthatswana military at the start of her career.

Responding to Nqola, she said it was not a political decision, it was an economic one.

“I just wanted to get a good-paying job,” she said and pointed out that it was the same defence force which “silenced” the AWB.

Ndlozi said: “You go and work for a reactionary government because you want money?”

Matshelo answered in the affirmative.

Ndlozi said stewards of justice often chose higher values than money.

“How do we know you’re a fighter for justice?”

She said she had been conscientised since and was doing her work for the love of her people.

The committee is still awaiting a report on the candidates from the screening committee. Once it is received, it will deliberate on the candidates and make a recommendation to the National Assembly. This will be done before it adjourns on December 6.

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