The best of times and the worst of times

By Valencia Talane

As the saying goes, “what do you give someone who already has everything?”

If the person has pioneered the fight for the respect of the country’s Constitution and all that it represents, and holds government leadership accountable on all fronts, you reward them by recognising their efforts and sharing this on a global level.

Global anti-corruption body Transparency International (TI) has bestowed its highest accolade upon South Africa’s public protector Thuli Madonsela – this year’s Integrity Award.  Madonsela was invited by TI to Berlin, Germany, to receive the award, which she says should have rather been given to her whole team and not just her.

“The awards mean a lot and yet they’re not expected,” she told Corruption Watch in an exclusive interview ahead of her Berlin trip. “I feel that my team and I are just throwing pebbles – for lack of a better word – into the sea and that’s the best we can do, one small organisation in a big country and a big world.”

This year has been a year of recognition for Madonsela – the first international acknowledgement came when Time magazine named her as one of its 100 most influential people. The Public Relations Institute of Southern Africa (Prisa) honoured her in June with their 2014 Prisa President’s Award, while she was voted ANN7 South African of the Year in September. These are just a few of the accolades.

“Between last year and now I have received so much support from the public and so many accolades from out of the blue, including from quarters where there wasn’t much attention being paid to issues of our work,” Madonsela said.

“Women’s magazines had not paid much attention because we deal with hard issues. So it’s been good that there’s been so much attention – the fact that we don’t have a budget for advertising is not an issue.”

That Nkandla aftershock

Using the famous Charles Dickens novel A Tale of Two Cities as an analogy, Madonsela described the past year as “the best of times and the worst of times.” Before her public status was elevated to celebrity proportions, the advocate evoked a storm of controversy when she released her final Nkandla report, which would be the most damning issue of President Jacob Zuma’s term so far. Secure in Comfort, the release of which was delayed by a few months, revealed gross overspending by government on what was meant to be security upgrades for Zuma’s private home in Nkandla, KwaZulu-Natal.

“[Never] in my wildest dreams did I ever anticipate it going on the tangent that it went,” reflected Madonsela. “I honestly thought government was going to come back and say: ‘with benefit of hindsight – which always gives you 20/20 vision – we would have dealt with this thing differently.’ ”

As far back as 2009, when the matter first raised eyebrows, she expected government to acknowledge its part in it and take responsibility. They, according to her, could have said: “You know in 2009 when the alarm bells rang, we could have put in a committee, but when the officials said everything was under control we believed it”, and then could have said that “we thank you very much”.

When they realised that the limitations were exceeded, as revealed by a Special Investigating Unit report, the leaders of the relevant government departments could have taken the responsibility, albeit from a distance.

“They could have said ‘all we can do now is to ensure it never happens again.’ ”

Constructive and intelligent criticism is welcome

It is through the Nkandla report that Madonsela has come under attack from different sources, including deputy minister of defence Kebby Maphatsoe, who implied during a public address of ANC military veterans that she was an agent of a foreign government.

“My only concern [regarding attacks on her office] has been that the criticism has not been constructive, except one or two academics that have just differed with us but without insulting us,” Madonsela mused. “In that case, even if somebody has a different point of view, that’s good because it encourages dialogue around what the public protector really is, and what government should do when the people have complained and the public protector has spoken. That has been a good debate.

“But when criticism has degenerated into plain insults and the peddling of lies such as ‘you’re a spy’ and purported telephone conversations between ‘spies’ – that’s the only part that really has gone haywire.”

What she would like to see going forward, she said, is “more academics actually critiquing specific decisions.”

Earlier in the month, Corruption Watch board chairperson Archbishop Njongonkulu Ndungane sent separate letters to Madonsela and Zuma. In the one to Zuma, Ndungane urged the president to remove Maphatsoe from Cabinet, citing his lack of respect for a chapter nine institution and thus the Constitution, as the reason.

To Madonsela, the archbishop advised that she take legal action against the deputy minister for the ill-advised comment. Madonsela’s office had, subsequent to Maphatsoe’s comment, issued a statement where it threatened to bring contempt charges if he did not either prove his allegations or fully retract his comments.

“I mean we’re so grateful to Corruption Watch and I think Corruption Watch was right that if we don’t make an example with someone who keeps violating the law – those contempts and provisions mean nothing.”

Madonsela could not divulge what plans, in any, she has regarding the Maphatsoe matter, but did express that she was unsatisfied with his apology.

Vulnerable much?

“One thing that we never anticipated in five years of being in the public protector is the sudden taking us on review by government departments.”

Madonsela explained that a debate has been going on with Parliament on whether or not her office is taking the correct types of cases. “Because we were never taken on review we don’t even have a legal department. We are one institution and we don’t have a single lawyer that is employed to defend us.

“We have to take the investigation teams to serve as lawyers, so now they are both the sword and the shield.”

Her view is that her office is accountable to the public and to authority such as Parliament. “Everyone who exercises public power is accountable back to the people, formally through structures like Parliament and the courts, but also informally through the media, and directly.”

The toll on her team’s morale is unquestionable, but the will to fight for the credibility of the office and the legal direction it takes in defending itself are evident, as can be seen in the Maphatsoe matter. “When there are these fights against us, they feel personally affected because they know that perhaps they fought for some of those decisions, they had to convince me.”

She feels that if Nkandla had been dealt with differently, “the way the country has always dealt with our reports”, the TI award could be claimed by the whole country, because that would be a clear indicator of the strength of South Africa’s institutions.

Her office has grown by about 25% since she took over in 2009 from her predecessor, Lawrence Mushwana, but the staff complement is far from enough to handle the workload that has increased as a result of the office’s raised profile. “Mr Mushwana had complained to Parliament about not having enough staff and had submitted an organisational structure that was approved by Parliament, with a staff of about 540.” They are currently at 314 with a budget as limited as the human resources.

When Andries Nel, the current deputy minister of co-operative governance, was still deputy minister of justice, Madonsela received a lot of support from him. “I think by now we would have gotten the resources we needed. Unfortunately when he left, we did not have the full support that we need.”

This is a matter she hopes to address at her next meeting with Parliament next week. On the agenda are the needs of her office and whether or not they have the right types of cases.

“When we last met Parliament in August, there was a sympathetic voice around the resources, from all parties. So hopefully when we meet them again that voice will continue.”

Looking ahead

Resources and support. These are the two things that Madonsela wishes her successor will enjoy from Parliament when she leaves office in 2016. The National Development Plan, which is government’s flagship programme, supports the notion of a fully resourced public protector office.

At the very least, she feels that her successor would make a good start by getting funding for the organogram that was approved in 2009, although the workload has doubled in the years since. “More staff with more skills”, because the work the public protector’s office does calls not only for a bigger staff complement, but one that is highly skilled.

“The second request that I have made is for Parliament to join hands with us in remedying maladministration. I think we need to go back to the basics … normally when an ombudsman has reported, the debate in Parliament is not focusing on the ombudsman.”

On South Africa’s prospects regarding the corruption fight, Madonsela feels that it is not all doom and gloom. “We’re making headway. We’re still a beacon of hope in Africa, and for me it boils down to the fact that we don’t have monopoly of decision making, we don’t have too much discretion for the decision makers.

“Look at Nkandla, the very fact that we could make the decision that this was not a security related matter. I’m sure in other countries nobody decides what is security and what is not if the president has spoken.”