ANTHONY BUTLER: Kholeka Gcaleka owes us all a more detailed explanation

Addressing the Cape Town Press Club on Tuesday in her first major event since being formally appointed public protector, Kholeka Gcaleka made a generally favourable initial impression on the assembled media and diplomatic contingents.

She came with positive recommendations. Thuli Madonsela described her appointment as “well-deserved”. Gcaleka’s predecessor-but-one observed that “your professionalism, level-headedness and sagacity will help you navigate whatever life brings your way”.

Positive sentiment was further bolstered by the freshly minted public protector’s proactive approach. She set out a raft of proposed amendments to the Public Protector Act, suggesting that the institution needed the “financial independence” that only direct parliamentary funding could ensure — the office is currently dependent on the department of justice.

She argued that authority to investigate “protected disclosures” by whistle-blowers needed to be supplemented by resources for legal assistance and personal protection. Her COO, Nelisiwe Nkabinde, also set out a defence of the “robust” investigations behind the public protector’s Phala Phala findings.

Most importantly, Gcaleka called for criminalisation of the non-implementation of remedial actions proposed by the public protector. She revealed that only 2% of such actions proposed since March 2016 have been implemented, despite the Constitutional Court’s ruling that they are binding.

Notwithstanding the broadly favourable welcome for these initiatives, three broad concerns were raised by Gcaleka’s approach. First, the proposals for direct criminalisation of noncompliant offenders sit awkwardly with the recent history of weaponisation of the office for the pursuit of factional politics.

Is the rational lesson of Busisiwe Mkhwebane’s term in office really a determination that the public protector should have greater and immediately enforceable powers that can be wielded for who knows what ends? Gcaleka mentioned a brainstorming process that “we” engaged in to generate these ideas, but it is not clear who was engaged in this process and what their deliberations involved.

Secondly, the public protector tidily dismissed as “unfortunate” the remarks of DA MP and spokesperson on justice Glynnis Breytenbach, that Gcaleka lacked experience, had controversial involvement at the National Prosecuting Authority (NPA) in the case of the late Glenn Agliotti, and enjoyed an excessively “intimate” relationship with then-NPA boss Menzi Simelane. A more substantial rebuttal of these superficially plausible allegations would no doubt help entrench the legitimacy of the new office-holder.

Finally, there is still some mystery about Gcaleka’s career path, and the motivations that led her to this high office. She was an NPA official, doubtless addressing corruption and nailing the dastardly criminals who plague this country, when her career took an unexpected turn. Her public protector profile notes that “Adv Gcaleka has served as a special adviser to the ministers for the department of public service & administration; department of home affairs; and department of finance respectively — with a specific focus in the areas of administration, legal, legislation and policy development, strategy, compliance and governance”.

This columnist asked Gcaleka who these ministers were, why she had taken this fresh career path, and what she had learnt from her experiences inside the private offices of senior government ministers. She explained that her career at the NPA had reached an impasse, and that she had been asked to join a minister’s team.

But she neglected to name the minister. When pressed, she explained that she had first become a special adviser to Malusi Gigaba at the ministry of home affairs. It was no doubt useful for Gigaba to be able to draw on her experiences at NPA to address the scourge of malfeasance that so evidently troubled him. Gcaleka was a sufficiently regarded asset to move with Gigaba to the National Treasury.

That was a difficult period for the nation. Then-president Jacob Zuma was obliged to replace finance minister Pravin Gordhan — probably because of the ageing pharmacist’s intellectual limitations and his consequent inability to understand the technical nuances of Russian nuclear power procurement.

Zuma tried to appoint finance guru and Saxonwold Shebeen chief economist Brian Molefe to the position, but internal party pressure forced the president to find an alternative. In the words of the Zondo state capture commission report, “the Guptas gave President Zuma another one of their friends to be appointed, namely, Mr Malusi Gigaba and he [Zuma] appointed him”.

The commission found Gigaba had received multiple benefits, including cash payments, from the Gupta family, and recommended investigation of Gigaba for corruption and/or racketeering on several counts. It remains a pertinent question what our new public protector learnt about corruption and state capture from her position as a legal adviser in the office of Gigaba.

After a brief period working for another minister, Gcaleka moved to the office of the public protector in 2020 as its deputy. That  left her curiously well placed to move up to be promoted when Mkhwebane was finally and predictably removed in 2022.

The public’s understanding of this career trajectory would benefit from some further explication on Gcaleka’s part. It is an unfortunate consequence of the recent history of ANC governance that the word “deployment” will spring to mind among many ordinary citizens.

A fuller description of her past experiences, her motivations for new career choices, and her experiences in positions as legal adviser to controversial politicians, would all help clear the air and re-establish the legitimacy of her important but troubled office.

• Butler teaches public policy at the University of Cape Town.