I’m watching the interviews currently being held. Compelling viewing!
I actually want to beat some writers on a very specific issue (that is before they put it to print, I’ll do it on this unfolding matter!)
Firstly all the candidates are highly qualified academically and otherwise. There are also many aspects to the interviews. I’m focusing on just one.
The ‘fit and proper test.’
In terms of section 1A(3) of the Public Protector Act 23 of 1994, the public protector must be a ‘fit and proper,’ person. The question of being ‘fit and proper,’ as at 20:00 11/08/16, has been put to all candidates thus far.
The honourable members and the highly qualified candidates don’t seem to understand the fit and proper test (from the questions posed and the answers received so far).
Firstly it’s noteworthy that the ‘fit and proper test,’ is not defined in any legislation whatsoever. It’s the same test for admission as an attorney or advocate.
It’s clear that the honourable members need to make a value judgment in this regard.
If it’s not defined in legislation, then where does one look? The answer is Case law. The 'fit and proper,' test has been indelibly burnt into me.
To fully understand the ‘fit and proper test,’ one needs to have an understanding of the following cases:
Incorporated Law Society, Transvaal v Mandela 1954 (3) SA 102 (T), Law society of Transvaal v Machaka 1998 (4) SA 413 (T), Prince v President, Cape Law Society and Others 2002 (2) SA 794 (CC) , Malan and another v The Law Society, Northern Provinces 2009 (1) All SA 133 (SCA), Swartzberg v Law Society, Northern Provinces 2008 All SA 438 (SCA), Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T) and Vassen v Law Society of the Cape 1998 (4) SA 532 (SCA), to name a few
I would really be impressed if any candidate mentions at least one of these cases to explain the fit and proper test and states that this test is not defined in legislation.
This is my submission(I derived this knowledge from the module 'Professional Ethics').