Advocate Kholeka Gcaleka will become Public Protector in a politically fraught environment, as illustrated by a tempestuous debate that preceded a vote in which 244 members of the National Assembly supported her appointment.

Five votes less, and Gcaleka's nomination wouldn't have been passed, as a majority of 60% - or 240 votes – is required for the Public Protector's recommendation.

In contrast to the appointment of Gcaleka's predecessor, Busisiwe Mkhwebane, when only the Democratic Alliance (DA) objected, it was clear from the start of the process that the vote would be tight. When an ad hoc committee to nominate a new Public Protector deliberated on the matter, only the African National Congress (ANC) and Inkatha Freedom Party (IFP) indicated that they would support Gcaleka, while the DA, Economic Freedom Fighters (EFF), and Freedom Front (FF) Plus were staunchly opposed.

This division spilt over into the House on Thursday. The ANC, backed by the IFP, African Independent Congress (AIC), National Freedom Party (NFP), GOOD, and Al Jamah-ah, described Gcaleka as the best candidate during the interviews, arguing that she has demonstrated that she has the qualities required of a Public Protector. 

They turned the other parties'' questions about Gcaleka's independence around, saying that comes from her not making the finding these parties wanted on the Phala Phala issue, which shows she can withstand political pressure.

Parties like the DA, EFF, FF Plus, African Christian Democratic Party (ACDP) and African Transformation Movement (ATM) called into question her independence – a requirement for the Public Protector – given her previous ANC Youth League membership, the fact that she worked as an advisor for Malusi Gigaba – "one of the biggest crooks in the history of South Africa" FF Plus MP Wouter Wessels called him – and her report on Phala Phala which exonerated President Cyril Ramaphosa.

ANC MP Cyril Xaba, who chaired the ad hoc committee, opened the debate and said Gcaleka was "outstanding."

Pre-empting what was to follow, he said opposition parties may have "untested allegations" against Gcaleka.

"We must avoid subjecting a person to the court of public opinion," he said. "The intention is to intimidate her. She is decisive and will not succumb to pressure."

The next speaker was DA MP Glynnis Breytenbach, who was a prosecutor at the National Prosecuting Authority at the same time as Gcaleka.

During the interviews for the Deputy Public Protector in 2019 and during the interviews for the Public Protector post in August, Breytenbach questioned Gcaleka about how she, in 2010, while she was the chairperson of the Society of Advocates gave her "unequivocal support" to the then-National Director of Public Prosecutions Menzi Simelane.

Simelane, whose appointment by former president Jacob Zuma was found to have been invalid by the Constitutional Court, removed experienced former prosecutor Gerrie Nel from the Glenn Agliotti case and appointed Gcaleka to the prosecuting team.

During the interviews in August, Gcaleka said she was supportive of Simelane's transformation agenda.

Breytenbach said that wasn't his only agenda.

"And his agenda at the NPA was one of destruction, and we're both aware of that. So, his agenda wasn't only transformation, and my interest is more in your support of his other agenda."

Gcaleka responded: "I couldn't have been in support of any other agenda. At the time, I didn't serve on the exco of the National Prosecuting Authority, I wasn't part of any decision-making of the National Prosecuting Authority. I had no idea of any of his other agendas."

She added she did not know Simelane personally.

On Thursday, Breytenbach said while Gcaleka was at the NPA, she "did not conduct herself with distinction."

"A serious question mark must exist about her personal judgment and her independence," said Breytenbach.

"Her very cosy relationship and some say very intimate relationship, with her boss, the very odious Menzi Simelane, led to speedy promotions and her very vocal and active support of his role in the capture of the NPA," she continued, to groans from the ANC benches.

"You don't have to like it. You don't have to like it," Breytenbach said to the ANC.

ANC house whip Bheki Radebe raised on a point of order, citing National Assembly rule 84, which says a member may not use "offensive, abusive, insulting, disrespectful, unbecoming or unparliamentary words or language." He also said Gcaleka is currently the Acting Public Protector. "She cannot be denigrated the way she has been done here."

Human Settlements Minister Mmamoloko Kubayi also raised on a point of order.

"Honourable Speaker, the honourable member here gives an insinuation of a young woman rising through sexual favours in the job. In this country, in this day, with what we have gone through, we cannot allow," she said.

National Assembly Speaker Nosiviwe Mapisa-Nqakula agreed and referred to National Assembly Rule 88, "which states that a person who is dependent on a vote from you [as an MP] for appointment and removal cannot be attacked in that manner in this House."

She ordered Breytenbach to withdraw the remark. Breytenbach refused, and Mapisa-Nqakula ordered that she leave the House, which she did to jeers from the ANC benches and applause from the DA benches. 

DA leader John Steenhuisen then rose on a point of order and said Mapisa-Nqakula's ruling was incorrect. Mapisa-Nqakula asked him to take his seat. He refused and accused her of dishonesty.

"You are dishonest! You are a liar! You do not follow the rules of Parliament!" said a visibly furious Steenhuisen.

"You are a disgrace as Speaker, and you should not be sitting there! And we will remove you! We will remove you with a motion of no confidence!"

ANC and DA backbenchers shouted and pointed at each other. ANC deputy chief whip Doris Dlakude raised a point of order after Steenhuisen's outburst.

"He must deal with his anger or whatever he has, but he cannot, as an honourable member of this House, insult the Speaker of the House. Mapisa-Nqakula said she would deal with it later and added: "For now, the liar will say, let us proceed with the proceedings of this House."

DA chief whip Siviwe Gwarube then raised a point of order, saying that Rule 88 does not apply to Gcaleka. But Mapisa-Nqakula was not swayed.

After a brief break to sort out the sound issues, Mapisa-Nqakula read Rule 88, which reads as follows: "Reflections upon judges and certain other holders of public office No member may reflect upon the competence or integrity of a judge of a superior court, the holder of a public office in a state institution supporting constitutional democracy referred to in Section 194 of the Constitution, or any other holder of an office (other than a member of the government) whose removal from such office is dependent upon a decision of the House, except upon a separate substantive motion in the House presenting clearly formulated and properly substantiated charges which, if true, would in the opinion of the Speaker prima facie warrant such a decision."

Gwarube again stated that this does not apply to Gcaleka and that the House is meant to have a robust debate about her appointment. She said Mapisa-Nqakula is turning it into a "sham," and the DA will be walking out in "defiance."

The DA then walked out.

The Public Protector Act states that the appointment and removal of the Deputy Public Protector is to be recommended by the National Assembly. It is thus "dependent upon a decision of the House," as Rule 88 puts it.

In a statement released after the sitting, Gwarube said: "As a candidate and not a sitting office bearer of the Office of the Public Protector, Adv. Gcaleka is not protected by Rule 88 for the purposes of [Thursday's] debate, and the Speaker's incorrect application of the rule marred this crucial vote and collapsed the sitting".

Several MPs remarked on Breytenbach's comments about Gcaleka and Simelane. GOOD MP Brett Herron described it as "disgraceful, racist, and sexist". 

National Freedom Party MP Munzoor Shaik Emam said Gcaleka was "insulted in the House in such a disgraceful manner" because she didn't make the finding against Ramaphosa that some political parties wanted. ANC MP Qubudile Dyantyi said during the interviews that Breytenbach, "who ran away," couldn't hide her bias against Gcaleka following their shared time at the NPA.

Breytenbach wasn't the only MP shown the door.  

One of the two EFF MPs visible from the press gallery in the Cape Town City Hall, Mzwanele Manyi, concluded his address by describing the ANC as "thugs."

Without a point of order being called, Mapisa-Nqakula ordered him to withdraw that.

"My conscience does not allow me. These people are thugs," he said to howls from the ANC.

He and the other EFF MP left the chamber.

When it was time to vote, the DA, EFF, ATM, United Democratic Movement, Congress of the People, and Pan African Congress were not present in the House.

The 60% threshold having been reached, Ramaphosa now has to appoint Gcaleka.

Having been appointed Deputy Public Protector in 2019, she acted as Public Protector after Ramaphosa suspended Mkhwebane in June last year.

In September, Mkhwebane became the first head of a Chapter 9 institution to be removed following Parliamentary impeachment proceedings, which found her incompetent and guilty of misconduct.

Breytenbach, before she was kicked out, warned MPs not to repeat the same mistake, as did Wessels. 

ACDP MP Steve Swart said his party regrets having supported Mkhwebane in 2016.