Speech by Hon Vusumuzi Xaba during the Appointment of the Public Protector 

19 October 2023

Hon Speaker, His Excellency Deputy President, and Honorable Members thank you for the opportunity to move the debate.

On 25 May 2023, having noted that the term of office of the Public Protector would expire on 14 October 2023, the National Assembly resolved, in accordance with section 193(5) of the Constitution of the Republic of South Africa, 1996, to establish an ad hoc committee to nominate a person for appointment as Public Protector. The person so nominated by the ad hoc must receive the supporting vote of at least 60 per cent of the members of this Assembly before he or she could be recommended to the President.  We are assembled today to process the recommendation.

In section 193(4) of the Constitution, 1996, the President must appoint a Public Protector on the recommendation of the National Assembly.  It is my honor to submit the name of Adv Kholeka Gcaleka for consideration by this august house. 

You have a constitutional duty to reflect honestly on the nomination and forget for once that we also have ambitions for power as different political parties. We disagree when we should be agreeing and the loser is the voter, a law-abiding citizen, who deserves nothing from this House but decisions that gives her comfort that tomorrow will be better.

Honorable Members, the Public Protector of South Africa is an institution established by the constitution to enhance accountability and improve the quality-of-service delivery.  It deepens the conversation and strengthens the social contract. 

The philosopher Jean-Jacques Rousseau explains what a social contract means. He opines that for a state to be legitimate, individuals have to renounce certain freedoms to the authority of the sovereign, in exchange for protection of the remaining liberties of the individual and the maintenance of order.  Nelson Mandela says “a nation should not be judged by how it treats its highest citizens, but its lowest ones. 

Twenty-nine years into our democracy, the PPSA has played a significant role in protecting the rights of the vulnerable and addressing issues related to the abuse of public authority.

The Ad hoc was tasked to search for “a South African citizen who is a fit and proper person to hold such office and who met the prescribed selection criteria. The process drew 53 nominations and 17 applications. Of the 53 nominations, 32 did not meet the requirements set out in the advertisement and two withdrew. 

Each candidate was tested for ‘character’, ‘experience’, ‘knowledge’, and ‘skills’.  I must add that all 38 candidates presented varying strengths and capabilities.   I thank them for availing themselves. 

The position can only be filled by one person.  Adv Kholeka Gcaleka was outstanding. You may have your issues with her, but don’t take away that she demonstrated a clear vision for the job and is a capable and competent woman.  We must avoid subjecting a person to a court of public opinion, parading innuendos, and sustaining false allegations. 

Those who repeat untested allegations lack courage and resolve to have them tested in a court of law.  They want her to operate under a cloud.  The intention is to intimidate her.  She is decisive and does not succumb to pressure. 

Honourable Speaker, Adv Gcaleka came face to face with Hon Breytenbach.  She questioned her about her role when both were in the NPA, that Gcaleka was the chairperson of the Association of State’s advocates that according, to Hon. Breytenbach, appeared to be supporting Menzi Simelane, who was later declared not fit and proper to hold office.  The question appeared to me to be more about Simelane whom she had running battles with, than Gcaleka.  In answering the question, Gcaleka said she supported the transformation agenda that Simelane was driving, because there was racism in the division in which she was serving, and she that had no part in his executive decision, because she was not in EXCO.

Hon. Maotwe (EFF) sponsored a view that she must step aside because her Report on Phala Phala generated “a cloud that hangs over your head”.  I ready don’t know where that comes from.  It is unfair to the candidate.  The Judicial Service Commission appoints or promotes judges whose judgements are appeal or taken on review. That your judgement is appealed or taken on review is not a bar. Why applying different standards in this case.  Who said that the review is going to succeed.  That aggrieved parties take the PP rulings on review, to me, suggests that our democracy has matured. 

I wish to thank the media, members of the public and civil society for the role they played in the process of selecting the nominee.  United we stand, divided we fall.  I thank you.