Madonsela vs the world

Public Protector Thuli Madonsela is facing a political “perfect storm”—her independence represents a common threat to all major factions of the ruling ANC.

She finds herself in a similar bind as former prosecutions chief Vusi Pikoli, who was backing investigations of both Jacob Zuma and former police chief Jackie Selebi (who was perceived to be a key ally of then president Thabo Mbeki) and so became a threat to both sides in the ANC leadership battle.

Similarly, there are indications that Madonsela may be a pawn in a battle between Police Minister Nathi Mthethwa and national police commissioner Bheki Cele, itself seemingly part of the proxy fight between Zuma and his rivals.

Into this volatile mix should be added the interests of provincial political barons who are the targets of police investigations overseen by Cele.

Madonsela was due to address a media conference on Wednesday to deliver an update on several investigations, including the key probe into the police headquarters leasing scandal.

Her report on the Pretoria lease and her leaked draft report on the Durban lease—both involving property mogul Roux Shabangu and inflated rates—came down hard on Cele.

Madonsela swept aside the police boss’s protestations that he was not in direct control of the procurement process and laid ultimate responsibility at his door.

But on Wednesday, the script changed when Independent Newspapers published a dramatic claim that the police were poised to arrest Madonsela on fraud and corruption charges.

The story was written by senior editor Jovial Rantao, who has previously reported on leaks from crime intelligence, notably concerning the Selebi investigation.

Citing unnamed sources and undisclosed documentation, Rantao claimed that, although Madonsela was a commissioner of the South African Legal Reform Commission, a company that she owned did work worth R1.8-million for the commission.

But Madonsela has vigorously denied this.

Rantao’s sources appeared to distance Cele from the investigation but they repeated his mantra about the public protector’s unfairness in holding him responsible for the actions of a separate department—public works.

Rantao’s most specific information was sourced not from the police but from the justice department. He noted that, in September 2009, the justice department sought the state law adviser’s opinion on Madonsela’s activities.

The opinion allegedly recommended approaching the public protector’s office or reporting the matter to law enforcement agencies for an investigation for possible contravention of the Prevention and Combating of Corrupt Activities Act (PCCAA).

Justice Minister Jeff Radebe’s spokesperson, Tlali Tlali, confirmed to Independent Newspapers that there was a departmental inquiry, although he was vague about the alleged transgression.

Madonsela spent most of her media conference dealing with the allegations reported by Rantao, while raising concerns that the alleged police investigation was part of a dirty-tricks campaign against her. The allegations—and suspicions of a police set-up—overshadowed her other announcements, including revisiting the Oilgate investigation.

Civil society organisations and, surprisingly, Mthethwa rushed to support her.

Although the police appeared to be poised to confirm there was an investigation, they seemed to have second thoughts following Mthethwa’s outspoken comments published on Thursday.

Mthethwa told the Times that if the police were investigating Madonsela, he and Cele would have known about it. “I know nothing. In fact, I can say there is no such [investigation]. If it were from the police, I would have known if it involved the Public Protector,” he was quoted as saying.

This provoked a carefully worded statement from Cele’s office, saying that the commissioner was “doing all in his power to establish the true facts” and that “recent reports have also made reference to an investigation of the national commissioner himself by a unit of the SAPS [South African Police Services] that he is not personally aware of.

“That said, the SAPS has decided to launch a full investigation into the circumstances that led to the publication of the media reports on Wednesday July 6 2011 that the Public Protector is about to be arrested. The SAPS will publicly announce the outcome of this investigation as soon as it is concluded.”

Mthethwa later issued another statement protesting about what he described as a campaign to discredit the police. “Some people are continuously peddling these negative campaigns which portray the Public Protector as a victim in the eyes of society and the department [SAPS] as the proponent of this victimisation. This must stop and stop now.”

Through this fog of spin, one thing is clear: the department of justice did investigate Madonsela.

She has confirmed that she asked to be paid as a commissioner via her company, the same firm that provided other services for the justice department.

The Act is very wide, making it an offence for a “public officer” to have an interest in any contract connected with the public body in which he or she is employed. But this does not apply to anyone whose “conditions of employment do not prohibit him or her from acquiring or holding such interest”.

The contradictory phrasing appears to have opened a tiny gap to go for Madonsela.

It is less clear who is gunning for her and who leaked the claims to Independent Newspapers.

Sources sympathetic to Cele suggested that the story was leaked to put pressure on him and make it more difficult for the investigation of Madonsela to proceed.

Mthethwa was said to be keen to replace Cele and happy to use the protector to this end.

A source said that Mthethwa had done nothing to allay suspicions that Zuma might harbour—that he could not entirely rely on Cele’s loyalty. Questions about his loyalty to Zuma were publicised in the secret “Mdluli dossier” prepared by suspended crime intelligence head Richard Mdluli and distributed before his arrest on murder charges. It suggested Cele was part of a clique aiming to replace Zuma in 2012.

Hostility between Mthethwa and Cele is an open secret. The most recent cause of irritation was apparently Mthethwa’s meeting last week with divisional police chiefs in Cele’s absence.

But the minister’s spokesperson, Zweli Mnisi, said that Cele “was fully aware of the meetings as they were organised through his office. He was not necessarily expected to attend the meetings and there is nothing amiss about this”.

It now appears that no one is backing the Madonsela probe. On Thursday, Radebe suddenly concluded his own investigation and found there was nothing unlawful in her employment relationship with the justice department.

He said that “at no point did the department during the inquiry report the matter externally to any law enforcement agency for criminal investigation. If at all there is any investigation against the Public Protector, the department is not a complainant.”

This left the police investigation—if it exists—hanging in the breeze, and Cele with it.

The police report is damaging for Cele, although he disputes it, claiming he has “nothing to fear from the Public Protector’s final report”. But anything that undermines Madonsela’s credibility helps him.

At the same time, much of the protector’s focus was on Public Works Minister Gwen Mahlangu-Nkabinde, who defied two legal opinions to press ahead with the Pretoria lease and tried to revive the Durban deal. There is no apparent logic for her actions, or for the sudden removal of her predecessor, Geoff Doidge, without the intervention of someone more senior.

Cele may emerge as the fall guy to avoid a real interrogation of the nature of Shabangu’s relationship—or lack of it—with Zuma or the ruling party.

Madonsela’s renewed investigation of Oilgate could also hurt Deputy President Kgalema Motlanthe and Tokyo Sexwale, who were both embroiled in the United Nations oil-for-food saga.

Justice minister ‘satisfied’ there was no violation

Madonsela joined the South African Law Reform Commission (SALRC) in May 2007.

It is a statutory body set up to research and recommend improvements to be made to the South African legal structures and laws.

The country’s president—Thabo Mbeki at the time of Madonsela’s appointment—appoints its commissioners, who report to the minister of justice.

At the time Madonsela was appointed she had run her company, Waweth Law and Policy Research Agency, for a little more than four years.

She continued to own it after her appointment as a commissioner, but appointed someone to manage it on her behalf. In a letter to the director general of the department of justice and constitutional development, Nonkululeko Sindane, on Wednesday, she detailed many times when her interests had been disclosed.

While she was a commissioner, she said Waweth was awarded at least three contracts by the department of justice, totaling R40 000.

In an article on Wednesday that claimed that Madonsela was about to be arrested, Independent Newspapers reported that R1.8-million had been deposited into her account, which she later said was “baseless”.

But in an interview with the Mail & Guardian, she said: “I have finally established that the R1.8-million refers to all the contracts from 2003 to 2009. It refers to the cumulative affairs over a period of six years. Most of the period is outside the contested period.”

Police sources claimed their investigation was going ahead and that in terms of Section 17 of the Prevention and Combating of Corrupt Activities Act, Madonsela was still guilty—public officers could not benefit from any contract “emanating from or connected with the public body in which he or she is employed”.

Madonsela argued that Section 17 would not apply because the law reform commission was a separate body from the department of justice: “It is linked only through administration. The SALRC is a state organ on its own.”

Late on Thursday Justice Minister Jeff Radebe announced his department’s inquiry into the matter was closed. Her business “was never a secret”, he said of her many disclosures.

“I am satisfied that the conduct of the Public Protector in relation to whether or not there was a duty to disclose, or that she was operating a profitable business entity, did not constitute a violation of any prescripts or laws,” Radebe said.

Speaking for the commission, Ronell Bronkhorst said: “Advocate Madonsela’s interaction with the department of justice and constitutional development is separate from her status as a commissioner at the SALRC.

“The SALRC is a statutory body appointed by the president.”

The M&G Centre for Investigative Journalism, a non-profit initiative to develop investigative journalism in the public interest, produced this story. All views are ours. See www.amabhungane.co.za for all our stories, activities and sources of funding.

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