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By Moepeng Talane
First published on Business Day
What reasonable measures must Parliament use to ensure meaningful public participation in its processes? This is a question that dominated the hearing of arguments on March 6 regarding an application brought by Corruption Watch to the Constitutional Court.
The matter follows the 2022 recommendation to President Cyril Ramaphosa for the appointment of the chair and four other commissioners to the Commission for Gender Equality by the portfolio committee on women, children and people with disabilities.
Corruption Watch wants the court to declare the appointments invalid — not because the five commissioners are unsuitable but because of the rushed and limited approach adopted by the committee in seeking public submissions on the process.
At the time Corruption Watch opted not to make submissions, but sought, through a letter to the committee, to get it to relax these measures as they were restrictive — only for the committee to reply that the organisation was welcome to expand on any submissions it wished to make by foregoing the method originally provided for.
This option was only offered to Corruption Watch, while more than 500 other members of the public made their submissions under the limited circumstances. A bit more on this later.
Flawed process
What it all comes down to is whether the means adopted by the committee were within reason, given the provisions of section 59 (1)(a) of the constitution on public participation. Members of the public were meant to make submissions on an online Google form with a 2 000 character limit, which had to be filled in and submitted within a period of 10 days from the time of the announcement of the shortlist.
All of this was to be done without the committee having published the CVs of the shortlisted candidates on whose eligibility the public was meant to make the submissions.
Parliament’s legal representative, Nikki Stein, argued that the legal provisions for the committee to refrain from publishing CVs could be found in the Protection of Personal Information Act (Popia), which prohibits the publishing of personal details of any individual without their consent.
It sought the assistance of the Information Regulator to corroborate this point, but Corruption Watch’s argument in its court papers was that the regulator contends there was a way around Popia, in that the CVs of the candidates could be published provided certain details were redacted from public records.
In its own affidavit, the Information Regulator makes the point that the committee could rely on section 11(1)(e) of Popia. Chairperson Pansy Tlakula states: “The Popia provides that “personal information may only be processed if processing is necessary for the proper performance of a public law duty by a public body”.
She goes on to say that the committee could rely on that section as justification for the lawful publication of the candidates’ CVs. However, it must redact personal information such as their ID numbers and contact details, before publishing such CVs.
Kathleen Hardy, appearing on behalf of Corruption Watch, argued that the provision for the public to participate is a core value that underpins public participation in Parliament’s framework. Parliament also recognises that the first level of public participation is to inform the public of the relevant process, she added, and to provide the public with balanced and objective information to assist them in participating in the process.
“It is our submission that meaningful participation in the recommendation of candidates for Chapter 9 institutions such as the commission can only be achieved if the public has access to adequate information about the candidates.”
Why it matters
Corruption Watch launched its leadership appointments campaign in 2016 towards the end of the term of former public protector Thuli Madonsela. The organisation advocated for meaningful public participation in the appointment process of her successor, not as a favour to Madonsela but on the realisation of a barrage of political and public attacks on her character owing to her damning discoveries of political corruption in SA.
It was during Madonsela’s term that the controversial Nkandla investigation was completed, where a sitting president was being probed over allegations of undue personal gain at a cost to the taxpayer for the first time in democratic South Africa.
It was for this reason — the awareness of how vital a regulatory institution the public protector’s office is for holding the powerful to account — that Corruption Watch sought a campaign that would empower the ordinary South African to have a fair and legitimate opportunity to participate in the process of recommending the next public protector.
During the state capture commission, we submitted that leadership appointments to Chapter 9 institutions are particularly important drivers of public participation in parliament’s work and should always be done in a public-facing way. Our recommendation was accepted by the commission, and recommended by former chief justice Raymond Zondo as a model Parliament should consider taking on permanently.
It is on this basis that Corruption Watch makes every effort to make submissions to processes involving the appointment of public servants to leadership roles in Chapter 9 institutions. In 2024 we participated in the process involving the recommendation process for the deputy public protector, with the position having been vacated when current public protector Kholeka Gcaleka was appointed on 1 November 2023.
The campaign is one the organisation prides itself on, as it advocates for public institutions such as Parliament to put the public interest obligation of its mandate ahead of the convenience of public office bearers or the executive.
Self-created urgency
To elaborate on this, one of the points that arose in the Commission for Gender Equality hearing was that of urgency on the part of the portfolio committee in having to fill the positions in 2022 because the commission faced a leadership deficit that needed to be addressed.
It was a welcome relief when acting deputy chief justice Mbuyiseli Madlanga asked Stein if Parliament was not expecting the public to indulge it in an urgency (regarding the process of filling the vacant posts of commissioners) that it had created for itself. The term for commissioners of the Commission for Gender Equality typically runs for five years, and had the sixth parliament — which was in place at the time when the previous term for commissioners would have ended — done its duty of launching a recruitment process to fill the positions, the portfolio committee would not have been pressed to invoke a rushed process of the recommendation phase.
For the public to have confidence in the leadership of Chapter 9 institutions that hold the executive and the rest of government to account on the fulfilment of policy directives, cost-effective, fair, and competitive procurement processes, and adherence to national policies that address challenges faced by South Africans daily, they must be able to meaningfully participate in the ascent to those positions of authority.
Unless this is adopted as a true measure of success for democratic processes, and not just a tick-box exercise owing to the urgency of circumstances not created by the public, MPs will never enjoy the full confidence of the constituencies to which they owe their positions.
Trust deficit
One of the arguments brought forward by Stein was that Corruption Watch, despite being given an opportunity to expand on its intended submission, failed to do so. Furthermore, the limitations it deems prejudiced against the public did not stop 556 other participants from making submissions.
The flawed reasoning in this argument is that Corruption Watch should have been relieved at the opportunity to give substantive submissions. Whether or not such an option was given defeats the purpose, as said submission would have been made without full view of the candidates’ CVs in any case.
However, the position the organisation took, in the interest of the public participation doctrine of a democratic institution such as Parliament, implied that it had to take a broader approach to bring the unfairness of this situation to the fore.
The Commission for Gender Equality case is an important one that will hopefully set the standard for how MPs — in their capacity as public representatives — should perceive the process of asking for, and managing, meaningful public participation.
• Talane is senior writer at Corruption Watch.
