/ 21 November 2013

Madonsela’s Nkandla smackdown leaves govt whimpering

Thuli Madonsela says she will address concerns regarding her report on Nkandla
Thuli Madonsela says she will address concerns regarding her report on Nkandla

She didn't have to say much; a simple statement indicating that she would listen to the security cluster's concerns around her provisional Nkandla report – with one or two caveats in the interests of co-operative governance – would probably have done the trick.

But the public protector, Advocate Thuli Madonsela needed to reclaim the moral high ground on the matter following a spate of attacks on the integrity and impartiality of her office from government and Parliament.

And reclaim it she did. With the narrative firmly back in her grasp, and a room full of journalists eating out of her hand, Madonsela delivered blow after blow to the ministers, government and even Parliament, rebutting each of their criticisms with her version of events.

Madonsela appeared relaxed, even slightly amused at times, during her address on Wednesday. Having been accused, by the ministers in court papers, of not being an expert on security matters, Madonsela used the opportunity to hit back during a round of questions.

A journalist asked if Madonsela felt the security of her job was now at stake. Madonsela quipped: "Well, I can't really answer that question, as I'm not a security expert … "

In response to serious allegations levelled against her, Madonsela's tone became more abrupt.

"Call me naïve, as one presumably sophisticated member of Parliament did, but I didn't anticipate the events of November 8 [when the ministers filed court papers]. Those events were unprecedented," she said.

In court papers, Madonsela revealed that the security cluster had tried to stop her investigation, by imploring her to wait for the Special Investigating Unit and the auditor general's investigations to be completed so as not to duplicate, and therefore waste, state resources.

But Madonsela said on Wednesday that when she was first asked to investigate Nkandla in late 2011, she approached both agencies to ask if they were also investigating the matter. This was precisely to avoid the duplication she is now accused of. Both agencies said they were not investigating Nkandla at the time.

She cited various examples of investigations that her office had declined to tackle because one of the other state agencies was already investigating.

But the broader thrust of her address was this: she wants to co-operate with government. She really does. But things have changed recently, as she put it, and her usually amicable relationship with government is becoming ever more fraught.

"Co-operation is the hallmark of our work. Although we [chapter nine institutions] are watchdogs, we whisper more than we bark. The hallmark of an ombudsman is moral persuasion," Madonsela said.

And so when the state attorney asked her office to hold off on the Nkandla investigation until the Auditor General and Special Investigations Unit investigations were completed, "we resorted to whispering to the ministers and we broke through the barrier," she said.

'That fateful day'
Why then, Madonsela asked, did her office "not whisper" on November 8, "that fateful day" when the security cluster ministers served her office with court papers?

She explained this was because the ministers wanted to tinker with the independence of her office, and that was the moment when the rules of the game changed.

 "The ministers were asserting that they had a right to vet my report. In my view this is at odds with the Constitution … I'm saddened that it ended up in court. Inevitably it took an adversarial turn."

Madonsela said section 182 of the Constitution and various other statutory provisions gave her "unfettered power" to investigate government malfeasance. The law goes further, she said, compelling government to co-operate with her investigations.

But while that relationship was largely one of trust, it is changing. She relayed an anecdote, quoting a judge from Sudan, who once told her that "you can't go to court and come back as friends".

Later, in response to a question about whether the Nkandla investigation was her most difficult one yet, Madonsela revealed a worrying trend in government's attitude towards her.

"The politics have been unexpected. Things have turned in a strange way. MPs have spoken strongly and loudly … it was absurd.

"I haven't resorted to name-calling. My team and I sit there and go, 'Really? Did they just say that? Can't they read before they attack?'," she said.

In what could be seen as a pre-emptive strike in mitigation of possible future legal action by the security cluster ministers, Madonsela laid out the procedure she will follow regarding the Nkandla report.

Madonsela announced a five-point plan for dealing with the concerns that the ministers of defence, state security, public works and police pointed out in a 28-page submission delivered to Madonsela last Friday.

  • Her team will review the 28-page submission from the ministers, assess the report, and, if necessary, make the necessary alterations;
  • She will invite the ministers in the security cluster to nominate security experts from within government to meet at her office and discuss the relevant issues;
  • All unresolved issues will then be referred to "selected independent security experts";
  • The provisional report will be shared with respondents, complainants and implicated parties within 10 days of these consultations. "Those outside of the security cluster, except the president, will not get a copy of the report but will be invited to come and view relevant parts thereof at our offices," she said;
  • Then the report will then be released.

It was government who appeared to whisper – whimper, even – in its response to Madonsela's press conference.

Madonsela said she communicated her plan to the security cluster just hours before addressing the media on Wednesday. Government communications issued a statement shortly after Madonsela's press conference, which read:

"Government notes the public protector's outline on how her office will deal with the interim report and comments submitted by the justice, crime prevention and security [JCPS] cluster on the security upgrades at Nkandla.

"The JCPS cluster ministers reaffirm government's respect and recognition of the role and office of the public protector and commit to taking the process further in a constructive manner and in the interest of the public and national security."