Public Protector Thuli Madonsela makes a presentation to members of the NCOP Ad Hoc Committee on the Protection of State Information Bill in Parliament.
NEWS ANALYSIS
As she stood valiantly alone against a Cabinet and Parliament determined to enrich the president illegitimately by way of upgrades to his Nkandla home, it was easy to forget that public protector Thuli Madonsela is an advocate. And a good advocate is – strictly in the interests of justice, you understand – crafty and, when it serves a worthy goal, borderline duplicitous.
Madonsela can be plenty sly, and it is has served her well before.
In August last year, she called a press conference to release an investigative report on the Passenger Rail Agency of South Africa.
In an unexpected turn of events it seemed the report could not yet be made public. But seeing that the media was going to gather, Madonsela took the serendipitous opportunity to release a letter she had written to Parliament on Nkandla, and answer questions on the matter.
Many of the questions followed the same theme. Parliament clearly had no interest in holding President Jacob Zuma to her finding that he should repay some of the taxpayer money spent to build him such luxuries as a “firepool”. Just what was she going to do about that?
Perpetually short of money (especially to spend on legal frolics that some experts considered unlikely to succeed) and accused of all manner of unsavoury anti-ANC political motives, Madonsela provided what gave every appearance of being an off-the-cuff answer.
“If the people of South Africa feel, as lawyers and as ordinary people, that the Constitution is being trampled on, that personal feelings about people are determining how people conduct themselves, let the people do something,” she said.
Within weeks the Economic Freedom Fighters (EFF) had approached the Constitutional Court on Nkandla and the Democratic Alliance was working to fold a high court application of its own into that ultimately successful and historic case.
Zuma ended up arguing that Madonsela – who can approach the treasury directly for emergency money if she can show she desperately needs it – should be made a party to the case.
The ANC made one attempt to criticise Madonsela for getting involved in a “political” court case. It went poorly for the party.
Madonsela, on the other hand, emerged with her remedial powers confirmed by the highest authority.
This Tuesday, Madonsela called another press conference to release reports but then couldn’t because they had not been finalised. Instead she spent nearly equal amounts of time releasing one minor report and talking about other matters – such as those loudly accusing her of being, variously, in the pockets of white capital, Israel, opposition parties, and anti-ANC forces in general.
Her remarks were off the cuff but two things seemed of particular importance to her: virtuous people, and future fightback against those accusing her of personal failings and professional malfeasance.
“Good people, can we stop playing these games?” Madonsela implored, on allegations that she was “fundraising for Israel”.
“We all have the right to a view of the world,” she said a few minutes later, still on the subject of Israel. “But please, good people, don’t impose it on me.”
Her plea to those proclaiming their innocence in her ongoing investigations and simultaneously seemingly keen to distract her from that work was: “Please, good people, just calm down” and “Let’s stop with the childish games.”
The time of the public protector – Madonsela said in several different formulations – is way too valuable to get into the gutter with those accusing her of malfeasance. But her term is coming to an end.
“After the 15th of October I may just play the game,” she said in one instance, before later developing the theme a little more.
“Should such childish games be played after the 15th of October, or from the 15th of October, who knows, I might just have a lot of time on my hands and might decide to join them in those childish games,” she said.
She did not specify how rough she may play.
Until the EFF and the DA simultaneously and spontaneously decided to litigate in the Nkandla issue, the binding nature of the public protector’s office had not been explored and put beyond doubt.
Similarly, legal provisions for contempt of the public protector have never been used, and so challenged. But they exist, with provision for jail time for the kind of behaviour that would be considered contempt of court in the context of a public protector investigation.
And jurisprudence suggests that saying nasty things about the public protector in circumstances that could undermine the institution to buy impunity could mean trouble.
A test for contempt, said then Constitutional Court Justice Albie Sachs in a comment on a 2001 ruling, should include looking at motives and consequences, because what seems like insults “could be part of a wider campaign to promote defiance of the law or to challenge the legitimacy of the constitutional state. Or, more specifically, it could be connected to attempts by persons such as warlords or drug lords to achieve de facto immunity for themselves … ”
Is anyone implicated in, say, the public protector’s state capture investigation, campaigning against the office? Madonsela scrupulously stopped short of calling causality, but did point to correlation.
“It happens a lot when there is an investigation that people are not happy about – that people start lighting a fire behind my back,” she said.
Yet pushed on whether she is considering contempt proceedings, she passed the buck in an eerily familiar fashion.
“I will not do anything on contempt. The public, on the other hand, may institute contempt proceedings. Because the public protector protects the public and the public can protect the public protector, as an institution, not as a person.”