Madonsela has defined the role, but new public protector will still face obstacles

NEWS ANALYSIS
Today, 14 candidates in line for the job of the next public protector are scheduled to be interviewed by members of a parliamentary ad hoc committee. They include the deputy public protector, advocate Kevin Malunga, Cape high court Judge Siraj Desai and corruption buster Willie Hofmeyr.

In 2001, South Africa’s first public protector, Selby Baqwa, went to Parliament to complain that he was not being given enough money to do his job. The R29-million he had been allocated was simply not going to cut it, he said. At least R50-million would be needed to make a dent in the backlog of cases sitting with his office, and to open offices in the more distant parts of the country.

In April this year, outgoing public protector Thuli Madonsela went to Parliament to say, although she would work within the R263-million budget allocated to her, she really needed another R115-million or so. That would allow her to do things such as deal with a backlog of cases and open offices in more distant parts of the country.

There are several other ways in which the office of the public protector — and its travails and challenges — have hardly changed in the past 15 years.

Big and controversial investigations remain trouble: the arms deal then, Nkandla now. The power the institution wields remains an issue for some in Parliament: that the protector could not be compelled to testify in court then, the enforceability of her findings now.

The three primary evils it had to grapple with in 2001 also ring familiar, though the context may be a little different.

“Rooting out the legacy in government of the apartheid years of arrogance, secrecy and corruption is a task still to be completed,” Baqwa told Parliament at the time.

In one sense, though, there is no resemblance between then and now. When Baqwa met Parliament in 2001, he handed out a brochure titled Meet the Public Protector. It was important, he said, to alert the public to his existence as an ombud and watchdog, because too many South Africans had no idea that such this institution was available to them.

This is not a problem the fourth public protector, who must be appointed shortly, is likely to face. Last week, political party agents stationed at voting stations around the country reported as among the most common jokes by voters their search for “Thuli Madonsela” on their ballot for ward councillor, or variations of that involving their wish to elect her president.

Where Baqwa, the first protector, struggled with anonymity, his successor Lawrence Mushwana was widely seen as troublingly keen to protect the ANC rather than the public during his seven-year term. In 2004, Mushwana found that Jacob Zuma, then deputy president, had been treated unfairly during a corruption investigation. In 2006, he praised Phumzile Mlambo-Ngcuka, then deputy president, for spending government money on an overseas holiday, saying she had security obligations. In 2009, his report into the Oilgate saga, which had links to ANC funding, was overturned by the high court for reaching conclusions without proper investigation.


Madonsela, as public protector number three, quickly built both a reputation as a fearless watchdog and as a celebrity after her appointment in 2009. With that came her defining trouble: harassment bordering on persecution.

In March 2011, police raided Madonsela’s office, apparently searching for documents relating to her investigation into a police building lease matter involving Bheki Cele, then the national police commissioner. “I’m more sad than angry,” she said later, “because I think I’m a servant of the people.”

In November 2013, as Julius Malema was starting up his Economic Freedom Fighters, he explained how Madonsela was a weapon used against black people. “I thought she was fearless, but only to realise she is a tool used by Afrikaner minorities,” Malema told a large crowd of cheering followers. Madonsela did not deign to respond.

When, in September 2014, Deputy Defence Minister Kebby Maphatsoe implied Madonsela was a CIA spy and accused her of playing God, she maintained that she would not invoke provisions in the law that seemed tailor-made for the situation.

“I have never considered the need to use powers of contempt with ministers or members of the executive because, whenever there are misunderstandings, we find each other,” she said.

But the investigation into Zuma’s Nkandla home took its toll. Top ANC officials accused Madonsela of playing politics and conspiring with the opposition. State bodies insisted she must drop her investigation. Ministers went to court to interdict her work.

By August last year, six years into her nonrenewable term, she was showing signs of strain. In its 20 years of existence, Madonsela told the Mail & Guardian at the time, the public protector had “never received such vitriolic attacks from politicians”, and she had gone so far as to consider the exact mechanics of launching a contempt action.

Her deepest worry was what such ongoing attacks would mean to her successors, she said. “It is my hope and wish that I do not leave this office constitutionally weaker than I found it.”

But, she added, the public protector belongs to the people, and the people would protect the office in turn, through the courts if necessary.

Six months later, the Constitutional Court delivered an unequivocal ruling on the binding nature of her findings, and ordered Zuma to repay the state for some of the improvements made to his Nkandla compound.

If those waiting to fill her shoes thought the war was won with Nkandla, though, they were in for a rude awakening. In July, the fringe group Black First Land First stormed into the protector’s Pretoria offices and took over an office. They were not holding anyone hostage, they told employees caught up in the drama, but anyone who tried to leave could be injured.

They demanded that Madonsela investigate “state capture by white capital”, because allegations of state capture by the Gupta family are baseless and an attempt at diversion.

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Phillip De Wet
Guest Author
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