ANC calls three-line whip for vote to appoint public protector

The ANC has ordered its MPs to ensure full attendance in the National Assembly on Thursday to muster a 60% majority to vote Kholeka Gcaleka in as the country’s new public protector.

“It’s a three-line whip,” an ANC member told Mail & Guardian on Monday.

Besides the ruling party, Gcaleka also has the support of Inkatha Freedom Party (IFP), but her appointment is firmly opposed by the Democratic Alliance, the Economic Freedom (EFF) Fighters, the Freedom Front Plus, the African Transformation Movement (ATM) and the African Christian Democratic Party.

That means securing 240 votes in favour is a fairly close call, hence the ANC’s injunction to its 230 members in the house to make sure they are all present, which is seldom the case. The IFP has 14 seats, and it is expected that smaller parties like the Good Party and Al Jama-ah could also support Gcaleka’s appointment for a non-renewable term of seven years.

Gcaleka has served as deputy public protector for nearly four years and as acting public protector since the suspension of Busisiwe Mkhwebane by President Cyril Ramaphosa in June last year.

That meant she assumed the responsibility for the investigation into allegations regarding Ramaphosa’s conduct in the Phala Phala controversy. 

That probe was launched by Mkhwebane, who sent a list of questions to the president two days before he suspended her.

Ramaphosa twice missed a deadline to reply, drawing a warning from Gcaleka last July that he would be subpoenaed if he failed to submit answers forthwith. He then responded within days.

In her final report released on 30 June, Gcaleka found that allegations that the president had acted in a manner inconsistent with his office in his response to the burglary at his game farm could not be sustained. 

She said the evidence before her did not support the allegation that the president had undertaken paid work outside his office and had thus breached provisions of the constitution and the Executive Ethics Code.

As for the allegation that he had breached section 34 of the Prevention and Combating of Corrupt Activities Act through failure to report the theft of foreign currency, she found that she lacked the competency to deal with it since that resided with the Directorate for Priority Crime Investigation (Hawks).

These findings are being taken on legal review by the ATM, which argues in papers filed to the Pretoria high court that it is evident from the report, the investigation was not incisive but rather done with the intention of absolving the president. She did not interview key witnesses and did not push to obtain the president’s tax records, when recent legal developments allowed her to do so.

“She failed to obtain relevant evidence necessary for her investigation. And she reached various conclusions in an irrational manner,” ATM president Vuyo Zungula said in his founding affidavit.

“The aggregated result of the acting PP’s cumulative errors demonstrate that the outcome of her investigation was a foregone conclusion. She did not conduct the investigation with an open and inquiring mind.”

Gcaleka has yet to file an answering affidavit.

The ATM’s charge of bias towards the president in her Phala Phala probe contrasts sharply with Mkhwebane’s findings against Ramaphosa in her report on donations to his 2017 campaign for the leadership of the ANC. 

There, the constitutional court said she seemed to have confused the wording of the code of ethics to place him in the wrong and, ultimately, it counted among the evidence of incompetence and misconduct that saw her impeached.

Mkhwebane had the unwavering support of minority parties to the left of the ANC and those are the parties are vehemently opposed to Gcaleka succeeding her. The EFF has called her a danger to democracy.

The DA on Monday said it found her responses to MPs interviewing candidates for the post lacking, notably when it came to her interpretation of the law and her past stint as an adviser to disgraced former finance and public enterprises minister Malusi Gigaba.

“We are of the view that her candidature does not satisfy the ‘fit and proper’ requirement set by the constitution,” said Werner Horn, a DA member of the portfolio committee on justice.

“We found her answers on her role in the National Prosecuting Authority and her support of [former national director of public prosecutions] Menzi Simelane, as well as her role as advisor to Malusi Gigaba during the state capture years, to be evasive and unsatisfactory.”

He said the official opposition also had cause to doubt her basic competency because when questioned about legal interpretations that were central to the Phala Phala investigation, she “could not explain the process to be followed to do a proper interpretation of statutes”.

If appointed on Thursday, Gcaleka will become the country’s fifth and, at just over 40, the youngest ever public protector. Her youth seemed a political selling point for some ANC MPs, who said it would be a nod to the need for fresh, young leadership in the country.

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