Johannesburg - South African of the Year one moment, CIA agent the next. It’s been a roller-coaster week for Public Protector Thuli Madonsela.
Deputy Defence Minister Kebby Maphatsoe had hardly retracted his accusation that she was a US spook than news broke of the resignations of her chief executive and chief financial officer. The next day it was the turn of her Western Cape provincial representative, advocate Ruthven Janse van Rensburg.
The pressure was beginning to take its toll, Madonsela admitted on the sidelines of a meeting in Cape Town, though she didn’t feel the resignations were directly linked to recent events.
Nevertheless, staff were beginning to wonder “what’s going to happen to us” in the face of apparent hostility towards the office from some in government.
Then, on Thursday evening, another bombshell: a letter from President Jacob Zuma informing Madonsela he disputed her powers to take remedial action that could not be “reviewed or second-guessed” by the executive and her insistence that only a court of law could review or set aside her findings.
All of this centres on what seems, on the face of it, a fairly simple proposition, contained in Madonsela’s report on the Nkandla debacle – that the president, having benefited improperly from the R216 million upgrades to his home, and having failed to intervene to prevent this extravagance, should repay a reasonable portion of the costs.
This was to be determined by the police minister, in consultation with the Treasury, and taking into account cost estimates prepared in the course of the work which mentioned a sum – ranging from R3m to R10m – for Zuma’s private account.
Zuma chose instead to ask the police minister, Nathi Nhleko, to decide whether or not there was anything for him to repay, setting off a storm that has raged from Parliament to radio shows and social media, with the common theme #paybackthemoney.
Attacks on Madonsela, insults and opinions from what she termed “pseudo experts”, had become a “deafening noise”, she said in Cape Town, fresh from a gathering in Lusaka of African ombuds.
The critical question, as raised in Zuma’s letter and the opinions of the “pseudo experts”, is whether Madonsela’s findings and remedial actions are binding, or amount to little more than friendly advice which the executive – Zuma – can choose to implement, adapt or ignore.
While the storm rages around her, the public protector in person is the picture of serenity, quietly going about the work of building trust between her office and the government officials she must help to stay on course – as she was doing in Cape Town this week.
Demands on her time are relentless, and we talk on the hoof as she is ushered from a media conference to her car in the basement of the Civic Centre. But she is instantly engaged when I ask whether it seems appropriate to her for the Public Protector Act to forbid anyone from insulting her, an issue raised in Parliament recently.
“Freedom of speech does not give you the right to insult people, does not give you the right to lie about people,” Madonsela says.
Though it is guaranteed in the constitution, freedom of speech had internal limitations, a prohibition on hate speech among them.
“If you look at what was done with me, it is hate speech, it clearly is hate speech.”
She has been advised by a staff member that this amounts to incitement to violence, as members of the public might believe the allegations against her and feel compelled to act against a perceived threat.
This is why, for the first time amid all the insults she has endured, she felt it necessary to raise the possibility of invoking the contempt provision in the act.
“The idea of contempt is the same with the judiciary. The idea is to protect the dignity of the institution so that you don’t have people treat it as they would treat their friends at the bar. If the dignity of the institution is eroded, the authority of the institution may be eroded, its legitimacy may be eroded and trust in that institution may be eroded,” Madonsela says.
Her response to the questions about the extent of her powers ranges from frustration to wry amusement.
Earlier, she told the meeting she had “never come across simple words that have sparked this much confusion and controversy”.
Some of the arguments were “beyond perplexing”, such as those suggesting she could make only “recommendations” on steps to correct the wrongs she finds.
“It would be interesting to say ‘I recommend to you that your actions were improper, as envisaged in section 182 of the Constitution and Section 6 of the Public Protector Act. Could you imagine somebody saying that, it’s difficult for me to contemplate that,” Madonsela says.
Preferring to refer to him as “a member of the executive”, Madonsela rejects a contention by Deputy Justice Minister John Jeffery that no ombudsman in the world makes enforceable findings.
“Before we talk about unnamed democracies in the world, let’s talk about our constitution. But I can also engage anyone about democracies in the world, because I’m a member of the African Ombudsman and Mediators Association, I’ve just come from Zambia on that… The ombudsman of Uganda can prosecute you if you fail to do what you’re supposed to do, the ombudsman of either Sweden or Holland, when you have failed to implement remedial action, may prosecute you. So it’s not even true that the powers of the ombudsman institutions across the globe are the same.”
In any event, the Supreme Court of Appeal has already found our public protector to be more than an ordinary ombudsman, she points out, and a legal opinion sought by Parliament indicated it could not review or amend her findings.
“Of course we could just agree, though, because we’re all learned friends, just read the English language – take appropriate remedial action,” she gives a delighted giggle at this prospect, seemingly quite remote in the circumstances. “Or we’ll get the Grade 11s to resolve the question,” she says, referring to an idea she has put to her communications team to hold a Twitterlogue asking them what they would understand if asked to find out what a problem was all about and “take appropriate remedial action”.
“But we won’t say it’s related to our job. We’ll just say, if you were asked to do this, how would you interpret your mandate?”
It seems a lonely path, enduring constant attacks from members of the movement she once served and whose idea it was to have a public protector, with wide-ranging powers, but Madonsela says she is comforted by people in the ANC she speaks to every day who support her work.
“The government of Gauteng is ANC, they supported everything we’re doing and they pledged to work with us and implement all findings. And we’ve worked with provinces, with government departments. The attacks mainly come from a minority. What’s disappointing is not that we disagree, what’s disappointing is that it’s degenerated into character assassination and just a street brawl, where you are insulted about how you look, how you dress and called all sorts of things,” Madonsela says.
She also gets “100 percent” support from ordinary people. “Everywhere we go, it doesn’t matter which party has a majority there, we get absolute majority in terms of support. So it never worries me about whose interests I serve, because the Gogo Dlaminis, the ordinary domestic workers, the ordinary farmworkers in this country, sincerely believe that we are on the right track.”
A tap on my shoulder tells me it’s time to release the public protector, late already for another engagement. Her silver Mercedes swoops out of the parking area, leaving a small huddle of staff gazing after it.
“I don’t even know if I’ll see her again,” Janse van Rensburg says.
Sunday Independent