FW De Klerk Foundation doubts whether advocate Kholeka Gcaleka is fit to be next public protector

Acting Public Protector advocate Kholeka Gcaleka. Picture: Public Protector/Facebook

Acting Public Protector advocate Kholeka Gcaleka. Picture: Public Protector/Facebook

Published Sep 8, 2023


The FW De Klerk Foundation says it has doubts that Advocate Kholeka Gcaleka is fit enough to be the next Public Protector after her Phala Phala report findings and her past controversies.

The foundation says despite that, it appears that Gcaleka is poised to take the reigns after the Inkatha Freedom Party (IFP) joined the African National Congress (ANC) in endorsing her to succeed advocate Busisiwe Mkhwebane, the outgoing public protector who is currently on suspension.

The foundation questioned Gcaleka's capabilities in its weekly bulletin, where it weighed in on several current political issues like the expropriation bill and the national democratic revolution, which was published on Friday.

It then touched on Gcaleka's nomination and said, "Like Caesar's wife, the public protector should be above suspicion".

The foundation said the office requires a strong-willed person like former public protector advocate Thuli Madonsela, who was able to take on former president Jacob Zuma and contributed to his resignation.

"Mkhwebane’s predecessor, Advocate Thuli Madonsela, demonstrated how the office of Public Protector could play a crucial role in holding to account state institutions that were suspected of improper conduct.

"Indeed, her fearless exposure of State capture under President Jacob Zuma played a pivotal role in forcing his resignation. Sadly, Mkhwebane did not continue this proud tradition and instead mired the office in unseemly controversy after controversy, racking up an unprecedented number of judicial rebukes in the process," the foundation said.

It added that after the Mkhwebane years, the office needs a very strong candidate to take it forward and restore its credibility.

"What is needed now is a visionary leader with an irreproachable record who will be able to regain public trust by investigating, without fear or favour, allegations of improper conduct at all levels of government.

"Unfortunately, there are doubts whether Adv Gcaleka fits the bill," it added.

According to the foundation, Gcaleka's report on Phala Phala was a major blow to her credibility.

"Section 181 of the Constitution requires the PP to be independent and subject only to the Constitution and the law".

"It goes on to require that he or she "must be impartial" and must exercise his or her powers and perform his or her functions "without fear, favour, or prejudice."

"On 30 June, Adv Gcaleka, as APP, cleared President Ramaphosa of allegations that he had violated the executive ethics code in connection with the theft at his Phala Phala farm in February 2020," it said.

It said her report on Phala Phala went against the panel that was led by retired Chief Justice Sandile Ngcobo, which found that Ramaphosa may have committed serious violations of the Prevention and Combating of Corrupt Activities Act and the Constitution "by exposing himself to a situation involving a conflict between his official responsibilities and his private business".

"Accordingly, questions were inevitably raised regarding the credibility of Adv Gcaleka’s investigation.

"A central concern regarding Gcaleka’s nomination is the degree to which she will be able—or willing—to carry out her duties impartially and without fear or favour," it said.

It also cited her past, saying it adds to the doubt that she is not fit for the job.

"Doubts have been raised—not only by her Phala Phala finding but also by her previous role as a legal adviser to former Home Affairs minister Malusi Gigaba, who was found to have lied under oath; and by her reported support for Menzi Simelane, former Director of Public Prosecutions (DPP) – who was removed from office in 2012 after the Constitutional Court found that he was not a fit and proper person."

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