The unshakeable public protector Thuli Madonsela

Madonsela has remained unfazed by the allegations made against her in anonymous letters sent to Parliament, saying the matter was now with the legislative authority. 

Madonsela said on Monday she had already submitted a comprehensive report on the matter to Parliament in July and requested that it investigate the allegations.

"Parliament told us the matter will be given to the justice portfolio committee and we'll wait until the justice portfolio committee tells us how the process moves forward," she said.  

Madonsela, who was speaking at a press briefing in Pretoria following the launch of National Good Governance Week, appeared confident the facts would speak for themselves. 

"The public protector is established to investigate proper conduct in state affairs. All I do is investigate improper conduct in state affairs. If I do find improper conduct in state affairs, I say so. I say so bearing in mind that I may be taken on review," she said.

"I have never made a decision that I cannot justify or that can't be justified by the report itself," she added.

Madonsela has in recent months been accused of being biased against the ANC following her release of a report on the billion-rand police leasing scams, which led to the axing of police commissioner Bheki Cele and public works minister Gwen Mahlangu-Nkabinde.

More recently, officials from the ruling party and the South African Communist Party took issue with Madonsela making a speech at a Women's Day event organised by the Democratic Alliance (DA), saying it would affect her impartiality.

Embarrassing government
The recent allegations against Madonsela did not call for a review of specific findings. Instead, they raised questions about Madonsela's conduct and were viewed as an attack made with the intention of getting her fired. 

The Sunday Times reported that one of the two dossiers before Parliament was submitted by deputy public protector Mamiki Shai, who complained Madonsela had:

  • Changed findings on a report concerning the DA-led Midvaal municipality;
  • Deliberately withheld the release of the report into Midvaal municipality until after local government elections were held;
  • Did not act against a senior executive in her office who was facing a fraud charge for allegedly forging Shai's signature;
  • Sought to change recommendations of the Good Governance and Integrity Committee, which were damning of her;
  • Took up cases that were beyond her jurisdiction and hired external consultants to handle cases; and
  • Adopted a "Hollywood style" approach to investigations and thus damaged people's reputations in public.

But in a cutting response released on Sunday, Madonsela systematically took apart the allegations made against her.

Channels for challenges
Speaking at the briefing, Madonsela said that as a lawyer, she understood a court of law could reject her findings if it reviewed her work and found that a reasonable public protector, faced with the same facts, would not arrive at the same conclusion. "If anyone thought I was wrong, the best thing to do was to take me on review so a court of review could say, 'A different public protector faced with the same circumstances would have made a different finding'," she said.

The public protector's office was taken to court over its rulings in the past. After the Mail & Guardian revealed in 2005 that politically connected businessperson Sandi Majali diverted R11-million belonging to state-owned PetroSA to the ANC, the matter was referred to the public protector's office. But then-public protector Lawrence Mushwana found no impropriety in the deal.

The M&G challenged the report and, following a court review, the North Gauteng High Court set aside the public protector's report and ordered that it be reinvestigated. 

Mushwana filed for leave to appeal the decision before his term of office expired in October 2009 but last year the Supreme Court of Appeal upheld the high court's ruling.

Protected by law
It's unlikely any negative findings resulting from an investigation into the allegations will have any impact on Madonsela's work. The head of a Chapter 9 institution may only be dismissed on the grounds of misconduct, incapacity or incompetence, or by a resolution by at least two thirds of the National Assembly. 

Constitutional law expert Pierre de Vos told the M&G these criteria – of misconduct, incapacity or incompetence – must not be conflated with instances where someone does not agree with a specific decision of the public protector or would have wanted her to act differently. 

"Misconduct is more serious. It's a more exacting standard," he said, and would only be applicable in cases where, for example, the head of the institution was guilty of corruption, had wilfully flouted the law, or did not adhere to the Public Finance Management Act. It would not apply where one does not agree with how she handles her staff or conducts an investigation. 

"It's clear that Parliament cannot remove her just because some people in her office are not happy with her," he said. 

De Vos said Madonsela was accountable to the National Assembly in the same way as the head of any other public body and could be called in to explain their actions if there was serious mismanagement.

"The National Assembly, in terms of section 181 of the Constitution, could call the public protector in and hold her accountable but that is not the same thing as firing her," he said.

De Vos added that in terms of the law, the National Assembly has a duty to assist and protect Chapter 9 institutions, such as the public protector's office, and to ensure their independence, impartiality, dignity and the effectiveness of the institution.

"They shouldn't get involved if someone with an axe to grind is trying to undermine the independence, impartiality, dignity and the effectiveness of the institution," he said. "If that is the motive, it wouldn't be appropriate for Parliament to get involved."

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