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Will Madonsela press the Big Red Button after ANC remarks?

ANALYSIS

ANC secretary general Gwede Mantashe and his deputy Jessie Duarte were very clear on Tuesday. They were not, they said, attacking public protector Thuli Madonsela nor blaming her (or anyone, for that matter) for anything.

Both then proceeded to accuse Madonsela, in sometimes not particularly thinly veiled fashion, of:

  • Leaking a letter she had written to President Jacob Zuma, and then laying that leak at the door of an unnamed senior ANC politician;
  • Conspiring with the Economic Freedom Fighters, presumably with the intent of co-ordinating a public relations assault on Zuma; 
  • Having a personal vendetta of sorts against Zuma;
  • Undermining Parliament and the Constitution;
  • Smearing South Africa’s name abroad, or attempting to do so; and 
  • Needlessly spreading rumours, acting as a political entity, and in other ways doing her office grave disservice.

In a press conference nominally about the work of the party’s national working committee, the two leaders repeated the ANC’s demand that Madonsela name names on the leaked letter to Zuma, and said she must “do her work correctly and behave correctly”.

Mantashe reacted angrily to suggestions that the party was baiting Madonsela, and dismissed any suggestion that the ANC would seek to have her removed from her office before her (non-renewable) term ends in 2016.

Madonsela’s nuclear option
Even as the ANC officials were speaking, Madonsela took to Twitter via an account previously verified as hers and retweeted by the official account of her office. “We are in trouble when politicians meddle in the investigation processes and leak documents then cry foul,” Madonsela wrote. Adding: “Let’s face [the] truth. What’s embarrassing the country is attempts to subvert the rule of law [and] not administrative scrutiny.”

Although clearly upset at the accusations and insinuations, there was an important word Madonsela did not use; a word that would amount to her nuclear option: “contempt”.

Despite the efforts of Higher Education Minister Blade Nzimande, Zuma does not enjoy the protection of a lèse majesté or insult law. Madonsela, though, in terms of her investigations, does.

In many respects, the public protector is treated as a judge in the high court, and in law it is clearly spelled out: insult to the public protector (or her deputy) is punishable by a fine or jail time, as is doing anything around an investigation that “if the said investigation had been proceedings in a court of law, would have constituted contempt”.

The Constitutional Court has limited the scope of contempt of court, but has been clear that accusing a court of bias or ulterior motive should come with a conviction. In the state vs Russel Mamabolo in 2001, Justice Albie Sachs added a caution to a majority judgement that seems eerily applicable to the ANC’s statements on Madonsela.

Provoking “real prejudice”, Sachs said, should be the true test for contempt of a court.

“Thus, it could be part of a wider campaign to promote defiance of the law or to challenge the legitimacy of the constitutional state. Or, more specifically, it could be connected to attempts by persons such as warlords or drug lords to achieve de facto immunity for themselves … [To] call a judge a crook in circumstances where the public is likely to give credence to such allegation, is effectively to challenge and undermine the capacity of that judge to continue with the function of impartial adjudication.”

ANC crossing the line
If contempt of the public protector requires accusing her of bias in a finding, the ANC – and Mantashe in particular – may have crossed the line on Tuesday. Mantashe said Madonsela had made a “personal project” out of Zuma, and that her intention was to “discredit the ANC”. Duarte, on the other hand, said Madonsela was “populist”.

Alongside insinuations of politically-driven conspiracy that could arguably amount to an attempt to buy immunity for a president accused by Madonsela of ethical breaches and undue personal benefit, or of preventing her from doing her job in future when it comes to high-ranking ANC members.

Madonsela has recently raised the possibility of using contempt proceedings, but in relation to a subpoena to Communications Minister Faith Muthambi on the appointment of SABC chief operating officer Hlaudi Motsoeneng, not Nkandla.

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Phillip De Wet
Guest Author

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