Nkandla report: Thuli Madonsela must stand her ground


Public protector Thuli Madonsela used that word almost in passing in a statement on Monday, right alongside "unlawful", to describe the actions by Cabinet ministers tasked with security.

It is a strong word to use in a constitutional democracy, especially when used in reference to those who direct the guns and spies intended to safeguard the country, and its Constitution. That those men (and they are all men, creating the stark picture of a lone woman standing up to a group of men) could act in any way that is not constitutional is a chilling thought.

That she feels her independence is under threat was revealed in her statement: "The public protector will clarify in detail in court papers why she believes the security cluster's request is unlawful, unconstitutional and violates the independence of her office," her office said.

But Madonsela did not go quite far enough. The ministers of the security cluster are not simply acting contrary to the Constitution. They are directly attacking some of its most important tenets; actively undermining some of its most important protections.

And that is all the more worrying given the recent history of the National Prosecuting Authority, the Scorpions, and the police crime intelligence division, in cases not entirely dissimilar.

'Dirty laundry'
There was a time, not so long ago, when this newspaper referred to the office of the former public protector as the great laundromat of government: dirty laundry went in and came out, post-"investigation", white as snow.

This is not the office of Madonsela. Her investigations and reports have been a thorn in many a government departments' side, her findings direct and often deeply politically embarrassing, even in non-election years.

Now, as a result of trying to push to finalise a report that has been too long in the making, Madonsela finds herself – and her office – under fire. She is standing her ground, but whether she can continue to do so may depend on the support she finds from the public and Parliament.

That she is a darling of the public is indisputable; many see her has a tireless crusader against corruption and for the rights of ordinary people, and rightly so. Parliament is another matter entirely. It is an institution that has shown very little sign of a backbone for many years now.

The public protector's office, by its very nature, often investigates the actions of the executive government. That is not the process of some kind of evolution, but was clearly anticipated when it was created, hence the no-nonsense protections built into the office.

The Constitution is clear: Madonsela is "subject only to the Constitution and the law", other branches of government must "assist and protect" chapter nine institutions such as her office not only its duties, but to ensure their "independence, impartiality, dignity and effectiveness".

There are no exceptions, no loopholes, no caveats. There is no mention of security-sensitive information, or an over-reaching application of apartheid-era laws such as the National Key Points Act. Ministers in the security cluster may have a duty to protect the physical safety of the president, or to encourage Madonsela not to inadvertently break the law, but their higher duty is not in question. First and foremost they must ensure that, in the words of the Constitution again, nothing "may interfere with the functioning" of the public protector.

By no stretch of the imagination is that what the security cluster ministers have done in the past several days. They have, instead, threatened Madonsela with criminal sanction. They accused her of unlawfulness, told a court she was acting unreasonably, and said she was threatening state security.

They have demanded the right to vet a provisional report into the hundreds of millions of rands spent on the president's private homestead in Nkandla – and want the right to redact the final report too. They have, in short, tried to create a whole series of extremely dangerous precedents.

As it stands, according to the ministers, the report contains "a plethora of breaches of state security", which the ministers should be allowed to bring to the public protector's attention so that she can delete the offending bits.

And the cluster is clear that it will not let Madonsela have the final say should she disagree with the ministers on what constitutes such security breaches. Madonsela's interpretation of the cluster's court challenge is this:

" … the security cluster says it has a right to a provisional report and the other being that the court papers are in effect asking for an extension that goes beyond the 10 working days requested in the two letters to her.

"The security cluster requests that they be given further opportunity to peruse the 'revised' provisional report to determine whether all the security concerns would have been addressed and if not be granted further opportunity to make written comments within seven days. In the event the public protector does [not] integrate all of the concerns raised, the security cluster requests leave to approach the court."

In opposing those efforts, thoughtfully but implacably, Madonsela is truly living up to the name of her office. In this, she is protecting not only the public but standing as bulwark against an assault on the Constitution.

Subscribe to the M&G

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

Phillip De Wet
Guest Author
Sarah Evans
Sarah Evans

Sarah Evans interned at the Diamond Fields Advertiser in Kimberley for three years before completing an internship at the Mail & Guardian Centre for Investigative Journalism (amaBhungane). She went on to work as a Mail & Guardian news reporter with areas of interest including crime, law, governance and the nexus between business and politics. 

Related stories

How graft arrests came together

Learning from its failure to turn the Schabir Shaik conviction into one for Jacob Zuma, the state is now building an effective system for catching thieves. Khaya Koko, Sabelo Skiti and Paddy Harper take a look behind the scenes at how law enforcement agencies have started creating consequences for the corrupt

Richard Calland: South Africa needs a Roosevelt style of leadership

President Cyril Ramaphosa needs to hold ‘fireside chats’ and have more power and institutional muscle around him, writes Richard Calland

This beef smells like manure

What’s that animal sound? Is it a Hawk swooping? A chicken roosting? No, it’s Zuma remembering a beef

Editorial: Arrests expose the rot in the ANC

The ANC has used its power to create networks of patronage. And this means going after corruption will cost the party financially

eThekwini’s everlasting security contract

An invalid contract worth R85-million a month is still being paid — three years after a court order to stop

Public protector clears Magashule, Joemat-Pettersson

Current ANC secretary-general Ace Magashule has been cleared of allegations that he misled the...

Subscribers only

SAA bailout raises more questions

As the government continues to grapple with the troubles facing the airline, it would do well to keep on eye on the impending Denel implosion

ANC’s rogue deployees revealed

Despite 6 300 ANC cadres working in government, the party’s integrity committee has done little to deal with its accused members

More top stories

Fake trafficking news targets migrants

Exaggerated reports on social media of human trafficking syndicates snatching people in broad daylight legitimate xenophobia while deflecting from the real problems in society

It’s not a ‘second wave’: Covid resurges because safety measures...

A simple model shows how complacency in South Africa will cause the number of infections to go on an upward trend again

Trouble brewing for Kenya’s coffee growers

Kenyan farmers say theft of their crop is endemic – and they suspect collusion

Unisa shortlists two candidates for the vice-chancellor job

The outgoing vice-chancellor’s term has been extended to April to allow for a smooth hand-over

press releases

Loading latest Press Releases…

The best local and international journalism

handpicked and in your inbox every weekday