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Heated words erupted between Public Protector Thuli Madonsela and MPs over her powers and mandate, while her findings of maladministration and conflict of interests against elections boss Pansy Tlakula remained the elephant in the room.
The justice committee on Tuesday said they would not raise the public protector’s report against the Independent Electoral Commission (IEC) chairwoman as it was subject to the work of another committee.
Instead, Madonsela, who had requested a behind-closed-doors meeting with MPs to discuss her powers, was grilled about how her office viewed her powers – including investigating “any conduct in state affairs” as set out in the constitution and of fellow chapter 9 institutions, which include the auditor-general, the South African Human Rights Commission – and the IEC.
As far as MPs from across the party political spectrum were concerned, the public protector was accountable to the National Assembly through its justice committee on all aspects of her job, including “if Parliament did not agree”, according to DA MP Dene Smuts.
This came in the wake of the ad hoc committee on the public protector report against Tlakula this week receiving a submission from the IEC chairwoman in which she argued Madonsela had “misdirected” herself and failed to apply the law correctly.
The 55-page submission was leaked, but is expected to come up for discussion next week when the ad hoc committee meets again.
Speaking on the sidelines of Tuesday’s committee meeting, Madonsela told Independent Newspapers she would welcome it if Tlakula took the report on review to court.
A court review is the only legally permissible way to air disagreement with public protector findings.
The MPs’ questions appeared to put Madonsela on the back foot, but she argued that while there was no doubt she reported to Parliament, her constitutional powers could never be limited by legislation. “Points can be raised, but not on findings,” she said, adding it was unknown anywhere in the world for a parliament to discuss an ombudsman’s findings.
“It is wrong for government to come to me and say it doesn’t want me to investigate, it wants the SIU (Special Investigating Unit) to investigate,” she said. “It is wrong for a minister to ask another minister or the NPA (National Prosecuting Authority) to stop our investigation.”
Madonsela argued her powers did not exclude chapter 9 institutions. The public protector was in the same position as the auditor-general. “If the auditor-general red cards us, we accept that this is the authority (under the constitution).”
Smuts said as the public protector accounted to Parliament, it was “bizarre” Madonsela had written to the executive over a parliamentary committee, which wasn’t named.
ANC MP Mathole Motshekga, the former chief whip, raised queries about Madonsela’s understanding of state affairs: “If we are not clear about that, then we are going to have a problem on money.”
Madonsela argued she did nothing her predecessors Selby Baqwa, the first public protector in 1995, and Lawrence Mushwana, did not do. “As the years go by, I’m finding this question around my mandate being raised (again and again). There’s nothing new… ” she said.