“My team, which is disturbed by all the commotion, continues to go beyond the call of duty to serve the people. The team is doing this under unbelievable capacity constraints and people’s expectations,” said public protector Thuli Madonsela in her keynote address at the Western Cape Consultative Stakeholder Dialogue at the City of Cape Town’s Chambers today.
This is part of a national dialogue, which was launched in Gauteng last month, under the theme, “Joining Hands in a Partnership Against Maladministration and Corruption”. The initiative, according to deputy public protector Advocate Kevin Malunga, was intended as a three-way dialogue between the public protector, government and the “public for whom we were created and render service”.
“The noise is taking its toll on the morale of the team,” she said. Madonsela did not shy away from facing the “noise” her office has recently received, in terms of its powers. She criticised a recent analysis piece which described her as “a protector with limited powers”.
Madonsela asserted that the powers of the public protector’s office come directly from the Constitution. She read out the constitutional provisions, section 182:
The Public Protector has the power, as regulated by national legislation- (a) to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; (b) to report on that conduct; and (c) to take appropriate remedial action.
Yesterday the Law Society of South Africa said it was “unacceptable” for Madonsela to be the “target of undeserved attacks” and that her “integrity and that of her Office and staff is questioned at every turn.”
According to the Law Society, only a court of law can review the public protector’s reports. Madonsela said this was in line with her understanding. She said that chapter nine institutions, of which the public protector’s office is one, are independent and “subject only to the constitution and the law”.
Addressing the notion that “the Public Protector may only make recommendations”, Madonsela argued that this is not aligned with the Constitution. “Under the supremacy of constitution, no law can reduce the powers granted by constitution,” she said.
The public protector is more than an ombudsman
Madonsela asserted that in her understanding, her office had the power to “fix problems by taking appropriate remedial action”. She cited the ruling by Justice Nugent, in his Supreme Court of Appeal ruling (PP vs. M&G) of 2013.
Her deputy, Advocate Kevin Malunga, agreed. He said that remedial action did not stop at merely recommending. “As long as the maladministration persists, there is a problem and we retain jurisdiction over the matter. We follow up, until the mischief is corrected,” he said.
Some of the challenges faced by the public protector’s office included investigating numerous complaints, with limited resources and capacity. In Gauteng, the public protector’s office is currently investigating 3 000 cases, with 11 investigators.
Advocate Ruthven van Rensburg, Western Cape representative of the public protector, said his office received on average 2 400 complaints a year, with 9 investigators. By August 31, the province received 1 412 complaints.
Madonsela urged departments to first exhaust internal mechanisms of dealing with complaints, before referring them to the Office of the Public Protector.
De Lille supports public protector
“You’ve taken the office of the Public Protector to new heights,” City of Cape Town Meyer, Patricia de Lille commended Madonsela at the meeting. “If there’s one thing we’ve done right in South Africa, it’s the appointment of the Public Protector.”
De Lille said the City always implemented the remedial action proposed to it in the public protector’s reports. that “You don’t try to fight with the Public Protector, you’re going to lose.”
Evaluating ‘CIA spy’ apology
Madonsela also said she was evaluating an apology by Deputy Defence and Military Veterans Minister Kebby Maphatsoe.
“Regarding the spy allegations, we have noted the media release by the deputy minister and my team has been helping me [with] evaluating the response,” she said.
“I have that draft evaluation… Once we have done that evaluation process, we will determine what my next move is going to be.”
The Star reported on Monday that Maphatsoe, also the Umkhonto weSizwe Military Veterans’ Association (MKMVA) chairman, had accused Madonsela of being a spy, insinuating she worked for the United States’s Central Intelligence Agency (CIA).
Madonsela’s office on Monday gave Maphatsoe three days to back his allegations, or issue an apology and retraction. Maphatsoe apologised on Tuesday.
“On Saturday and Monday, I made statements in my capacity as the national chairperson on behalf of MKMVA about the public protector,” Maphatsoe said in a statement.
“After consultation with my organisation, the ANC, it would seem as though my statements have been misunderstood and misinterpreted.
“I therefore withdraw those statements and apologise for any offences and hurt that would have been caused.”
Madonsela was asked whether she feared for her life or that of her family after increasing attacks on her character and actions.
“No, not really. Nobody has seriously, directly threatened me. My family has raised concerns though over being called a traitor, being called a foreign agent,” she said.
A member of her team had raised the question that being called a spy was hate speech and incitement to harm.
“When you call somebody a foreign agent, you are inviting others to consider this person an enemy of the people of South Africa.
“And some of them might then assume that that call extends to them defending the country against this foreign agent. And it was the reason we then requested that this should be withdrawn.” – Additional reporting by Sapa