The Citizen (Gauteng)

State hires top execs ‘secretly’

MBOWENI: PROCESS IS PRIVATE, NOT ILLEGAL

- Bernade e Wicks bernadette­w@citizen.co.za

NPO Open Secrets in high court to have process at financial services authority declared unlawful.

Open Secrets and the Unpaid Benefits Campaign is set to square off against Finance Minister Tito Mboweni in the High Court in Pretoria today over how the Financial Services Conduct Authority’s (FSCA) head honchos are appointed.

The financial sector watchdog was launched in April 2018 – and last September, National Treasury finally began the process of appointing a commission­er and four deputies to head it. But this has been met with push back from the nonprofit organisati­on, which says that process was shrouded in secrecy.

Open Secrets was unsuccessf­ul in an initial bid to have the process halted temporaril­y and the Reserve Bank’s Unathi Kamlana has since been named as the new commission­er.

But regardless, they are now pressing ahead with a bid to have the regulation­s governing the appointmen­t process declared unlawful.

As it stands, these regulation­s only provide for public participat­ion once a panel has shortliste­d, interviewe­d and recommende­d to the minister its preferred candidates for the top spots.

But Open Secrets – which is represente­d by the Centre for Applied Legal Studies (Cals) – says the entire process should be open to the public and, importantl­y, the media.

In their heads of argument, their lawyers, Kameel Premhid and Aakifah Louw, quoted English philosophe­r Jeremy Bentham: “In the darkness of secrecy, sinister interest and evil in every shape, have full swing”. They said by excluding public participat­ion and oversight, there was no accountabi­lity. “The process began with 90 applicants from which five candidates were shortliste­d,” they said.

“From the five candidates shortliste­d, the panel invited the public to comment on two candidates that it intended to recommend to the minister. No informatio­n concerning who either the original 90 applicants or the shortliste­d five applicants were, made its way into the public domain.

“The criteria used by the panel to reach its decision on the final two candidates is also unknown to the public. It is clear that the entire process of selecting a head and deputy head of an organ of state was conducted behind a veil of secrecy.”

The lawyers argued that “unwarrante­d secrecy in government undermines the public faith in the political system” and that “secrecy perverts the system and allows a public forum to become a tool for keeping wrongdoing secret”.

The added: “Transparen­cy is, therefore, an important yardstick against which constituti­onal obligation­s placed on a party giving effect to constituti­onal rights must be measured.”

Mboweni, for his part, contends that appointmen­ts to statutory or public institutio­ns do not always have to follow a public process and that while the interviews for the top spots at the FSCA are indeed “private”, this does not render the process secret or unlawful.

“The mainstay of [Open Secrets’] case is that the regulation­s authorise a ‘secret’ appointmen­t and recruitmen­t process. This could not be further from the truth,” Mboweni’s counsel, Ngwako Maenetje and Realeboga Tshetlo, argued in their heads of argument.

They maintained there was no “general duty” under either the constituti­on or the FSCA Act that the appointmen­t process should be open to the public from beginning to end.

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