19/03/2014. Public Protector Advocate Thuli Madonsela at a press briefing were she tabled her report about the upgrade in the private home of President Jacob Zuma. Picture: Masi Losi

Once again those in power simply disregard the inconvenient truth in Thuli Madonsela’s damning findings, says Judith February.

Pretoria - Whichever way one looks at it, last week was not a good one for the rule of law.

In Parliament, the head of the Special Investigating Unit (SIU), Vas Soni, was battling to deal with questions regarding the Nkandla investigation and precisely who the two people are who are delaying his investigation.

But the chairman of the justice committee, Mathole Motshegka, made sure the matter wasn’t pursued too hotly and Parliament seems in full “shot down” mode on Nkandla.

It was also ANC members on this committee who last week asked if the public protector’s powers should be “reviewed” – instead of ensuring that the public protector received the necessary support for her findings.

Separately, Pansy Tlakula, who is on special leave from the Independent Electoral Commission, has gone to court to have the findings of a conflict of interests against her reviewed. Tlakula has been found wanting not only by the public protector but also by a National Treasury report, a PwC forensic report and the High Court.

But if there seems to be a creeping disregard for the public protector’s office by those in power, it was Minister of Communications Faith Muthambi’s decision to endorse the SABC board’s decision to appoint Hlaudi Motsoeneng as permanent chief operation officer of the SABC that raised eyebrows.

The public protector found that Motsoeneng had misrepresented his qualifications and that he had acted without authority in increasing his salary from R1.5 million to R2.4m in a single year.

The public protector gave the SABC until August 17 to respond to her report and recommended that a permanent chief operation officer be appointed within 90 days. Muthambi quite bizarrely and irrationally decided to pre-empt all of that.

Muthambi seems to be caught up in a litany of contradictions. While she awaits the board’s decision regarding Madonsela’s report, she has already said that it acted with “due diligence” in confirming Motsoeneng’s appointment.

She has ratified a premature board decision and instead preferred the opinion of a law firm.

Again, the same dangerous theme raises its head.

It was precisely what President Jacob Zuma and the Presidency did when faced with the public protector’s report on Nkandla. Wait for the SIU report, they said. And so we wait as the matter is dragged out.

The problem is that both the president and Muthambi appear to be creating equivalence between the public protector’s report and the legal opinion provided by a law firm or indeed the report of the SIU into Nkandla.

By doing so both parties undermine the constitution. The public protector’s office is constitutionally mandated and, as such, her findings have primacy.

Of course her power lies as much in the constitution as it does in the political class and citizens’ acceptance of the legitimacy of her office. Muthambi might well be taking her lead from the president and simply disregarding the inconvenient truth about Motsoeneng and Madonsela’s damning findings.

But the board itself seems racked with division. According to reports, the chairwoman herself has been less than honest about her own qualifications.

In all of this our president stands aloof, distancing himself from the conduct of Muthambi and her decision-making. Yet it’s hard to believe that Zuma would sit idly by while Muthambi protects Motsoeneng and makes such a controversial decision.

Parliament has called Muthambi to account, yet it would seem that Motsoeneng himself has pretty high levels of political cover. Or does he? What was curious about the entire saga was the SACP raising its concerns about the appointment and the ANC itself saying it had not been aware of the permanent appointment. Quite clearly there is a struggle between Zuma and Muthambi on the one hand and Luthuli House on the other.

It is perfectly obvious that Motsoeneng is not qualified for the position. The public protector has found that he does not possess even a bare matric qualification.

But, like the “shoot from the hip” Chief Justice Mogoeng, the blustering and vacuous Motsoeneng is yet another appointment in Zuma’s image and clearly quite capable of providing the “sunshine journalism” that Zuma and his acolytes would need.

The Nkandla and SABC matters provide some insight into the way in which Zuma will conduct his second term; he will clearly not be giving an inch and will take the fight to Luthuli House in an effort to protect his interests and those he believes may do the same.

He should take care not to over-play his hand, however.

* Judith February is a senior associate at the Institute for Security Studies.

** The views expressed here are not necessarily those of Independent Newspapers.

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