Is Thuli Madonsela the new Willem Heath? A curious question, you might well think. The feisty public protector is hardly a retreaded Afrikaner high court judge from pre-1994 who survived the transition from apartheid. But remember the rise and fall of Judge Heath and his “special investigating unit” (SIU) and hold the thought.
He made his name in the late 1990s as a swashbuckling knight in shining armour, who would fearlessly seek out malfeasance in the public service and pierce it with his rapier. For a while he was the main man of the media and the querulous middle class’s favourite son.
But then came the arms deal and the decision of the parliamentary standing committee on public accounts (Scopa) to include the unit in the multipronged investigation into the procurement malpractice that Scopa had uncovered. That was a bridge too far for the ANC leadership. Charging around the Eastern Cape, where the SIU had cut its teeth, was one thing; digging deep into the corrupt mire of the arms deal was an altogether different proposition.
By then Thabo Mbeki had decided that the ANC needed to control the investigation and so Scopa was informed — by a letter signed by Jacob Zuma, who was then the leader of government business in Parliament, but written by Mbeki and his chief henchman, Essop Pahad — that it, Scopa, had made a mistake and Heath should be taken off the joint investigating team.
Though he went on to exploit his fame with a lucrative career in the private forensics industry, Heath’s Andy Warhol 15 minutes of fame was up. Without any real political support or friends, he was isolated and hung out to dry.
As a matter of law the SIU was an administrative tribunal, dispensing rapid verdicts on the basis of evidence that it adduced from investigations carried out by its own small and apparently loyal, as well as efficient, investigators.
Ironically, Heath was, in the end, the victim of his body’s own legal constitution, rather than his own stomach for the fight — substantial though that was. For just as the ANC was trying to figure out how to rid itself of this pestilent, over-reaching, judge, the Constitutional Court came to its aid. The lawyers for some dodgy fraudster or other had conjured up a clever argument: an administrative tribunal that was actually part of the executive — as the SIU was — could not be headed by a judge in active service — which is what Heath was — since it would represent a breach of the principle of separation of powers.
Thanks, then, to the ingenuity of the criminal bar and the integrity of the Constitutional Court, the ANC was able to dress this part of its cover-up of the arms deal congenially in the warm blanket of respecting the separation of powers.
This was a soft landing for Heath. He was in for the chop in any case. His hubris had begun to wear on the nerves of the ANC leadership. He had developed far too much of a taste for his own independence — much, some might now think, like Madonsela — as well as for the media limelight.
There is a parable here that advocate Madonsela would be well advised to bear in mind. Not that she should necessarily take her foot off the pedal, but that she will need to watch not just her back, but just about every available surface.
She seems to be aware of this. Yet she seeks protection of the wrong sort. She needs political protection, not bodyguards. And the only entity that can secure her political independence is the body that stands to lose the most from her fearlessness: the ruling party.
As Madonsela remarked last week, since her mandate is to investigate public service maladministration, inevitably this will have a negative impact on whichever party happens to be in power. It’s fundamentally unavoidable, just as it is unavoidable that some of the most challenging complaints will come from the opposition.
What Madonsela was telling the ANC in her rambunctious press conference last Wednesday was “grow up and accept it and stop bleating about it”. On the occasions I have seen her, she has impressed me with her apparent forcefulness of character. The woman has something about her.
In the top echelon of professional sport you look for temperament and character as much as talent and technique. And the same applies to the people charged with leading the so-called chapter nine bodies — those established under chapter nine of the Constitution to protect the Constitution.
In spite of its apparent disarray and ideological fault lines, the ANC’s base instinct is to be in control, or, at the very least, maintain the illusion that it can manufacture consent — usually through what it likes to call euphemistically “engagement”.
In this context my antennae were alerted when the minister of justice announced that the Cabinet wanted to “engage” Madonsela over her first South African Police Service lease report. Whatever attempts were made to co-opt or persuade her to modify her approach, they do not seem to have quelled her hunger for the fight.
Otherwise, those rapscallions within the new security establishment would not have had to resort to the scoundrel-like smear campaign that surfaced last week.
In response Madonsela not only stood her ground, but advanced on a new front: the blurred line of state and party. This is admirable, if not a little foolhardy. In the context of the abuse of state power for personal and party advantage, well illustrated by her report on the conduct of Christopher Taute, the mayor who sought to extract election campaign donations from those companies awarded tenders by the Hessequa local municipality, it is much needed.
Neither of her predecessors would have gone near it. The first public protector, the astute Selby Baqwa, would deftly walk the tightrope of political acceptability: probing here and there, making sharp recommendations on occasion, but leaving much to be read between the lines.
Lawrence Mushwana, who succeeded Baqwa, sheepishly allowed himself to be used by his establishment-minded advisers and senior officials and spent his term of office either avoiding controversy or, disgracefully, ignoring the facts and the law, however clearly they showed wrongdoing. Mushwana’s commitment to mediocrity and executive-toadying was unyielding. He was rewarded with the position of chairperson at the Human Rights Commission. In contrast Madonsela deserves support — and not just from the media and the perennially cynical middle class.
Cosatu and the South African Communist Party should invest some of their recently acquired zest for combating corruption in Madonsela’s office. In turn she needs to position herself shrewdly. And sensible democrats and progressives within the ANC should resist the temptation to control the public protector, however much and however quickly her manner and her taste for the great responsibility of her office may come to irk.
We really don’t need another Willem Heath.
- Government has now shown how well it can listen and how sensibly it can respond when faced with a potential constitutional crisis — namely, the challenge to the constitutionality of the president’s decision to extend Chief Justice Sandile Ngcobo’s term of office — the topic of my last column (on June 17).
Since Serjeant at the Bar would surely not have subsequently called my support for Ngcobo’s predicament “praise-singing” without good reason, I recognise that I should have found space in my column to disclose the fact that the research unit at the University of Cape Town that I head has this year been contracted by the office of the chief justice — twice — to carry out paid research assignments, looking at comparative models from around the world.
Though the research has given me deeper insight into the scale and import of the institution-building project the chief justice is leading, I trust that it has not created a conflict of interest such as would disturb the independence of my outlook on the difficult constitutional question at stake.
For the record, let me repeat what I believe I argued in my last column: that I think that a presidential discretion to extend the chief justice’s term is inappropriate and probably unconstitutional, but that it would be thoroughly desirable to find a constitutionally principled way of changing the law to permit this chief justice to remain in office to complete the work that he has begun. It seems that government, for once, agrees with me.