Barring an irrational decision by President Cyril Ramaphosa, Kholeka Gcaleka, the acting public protector, looks set to be appointed as SA’s fifth public protector.
Having been recommended by the ANC with the help of smaller parties in the National Assembly, she awaits formal appointment by the president. She will become the third black woman to occupy the ombud office which is meant to protect citizens from maladministration and breach of ethics by cabinet members.
All told, Gcaleka, who has been acting for over a year since the suspension and ultimate impeachment of her predecessor, Busisiwe Mkhwebane, is a decent pick even though she came through a poor process.
Parliament’s ad hoc committee, set up to shortlist and interview candidates for the job, was not spoilt for choice. Faced with a pool of mostly weak candidates — who looked good on paper but failed to impress during the public interviews — the committee shortlisted from this pool. Armed with incumbency advantage, Gcaleka emerged ahead of the pack to be the sole recommendation.
The process leading her recommendation was not ideal for good candidates. Mkhwebane, who became the first head of a Chapter 9 institution to be impeached, made the job unattractive to suitable candidates.
Before her impeachment, Mkhwebane had a string of her rulings against high-profile politicians, including Ramaphosa, overturned by the courts with damning commentary on her understanding of the law. Her high court losses included depriving the public the right to know who contributed to Ramaphosa’s campaign to become ANC president in 2017. Worse, as well as scathing findings by courts, Mkhwebane holds the dubious record of being the first public official to have litigation costs to be funded from her own pocket. Only Jacob Zuma is the nearest rival.
Mkhwebane politicised this important office. As if not enough, she officially joined Julius Malema’s EFF a week ago. Against this tricky background, it was unsurprising that MPs opted for a safe pair of hands in naming Gcaleka as their choice.
It is a pity the DA decided to walk out instead of using parliament to record its reservations about Gcaleka. The party should call its MP, Glynnis Breytenbach, to order for her unbecoming remarks about Gcaleka.
Mkhwebane set the bar low for Gcaleka. Her medium to long-term challenge is to ensure professional ethics are restored in that office, and that the public’s confidence is regained. This is a big but not insurmountable task. She is lucky that Mkhwebane did most of the damage to the office’s standing — including a qualified audit — herself. Most of the staff have remained professional under a difficult environment. Most of Gcaleka’s reports during her short tenure have been sensible.
In the short term, however, she faces two main bugbears. First, for the months before next year’s elections, she will have to contend with insults from the EFF and its new MP, Mkhwebane. Second and most important, she will have to defend her report on Phala Phala which controversially cleared Ramaphosa for moonlighting in his game farm. Opposition parties have asked courts to set aside the Phala Phala report, which followed an investigation into a robbery at the president’s Limpopo farm in early 2020.
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