Before Thuli Madonsela, the Office of the Public Protector (PP) was largely seen as a toothless appointment if it was seen at all. As with other standard Chapter Nine institutions, it might take on an underdog’s case, occasionally a government department, perhaps even oversee a class action lawsuit but mostly it tended to keep a wide berth from the big political men. PPs came and went and one hardly remembered their names, nor any high-profile cases attached to them.
So when Jacob Zuma told the nation in 2009 that Advocate Madonsela was taking ‘on an important responsibility, having to protect South Africans against any abuse of power by state organs or officials’ and that ‘she will need to ensure that this office … undertakes its work without fear or favour’, he could not have known that this stylish, honey-tongued woman would preside over his downfall. Or, in fact, that she would take his words quite literally as she went on to As Thandeka Gqubule says in her biography of Madonsela, when Zuma appointed her, he was ‘unaware that he was inaugurating his nemesis’.
In their book Legends: People Who Changed South Africa for the Better, Matthew Blackman and Nick Dall write; ‘Madonsela’s predecessor, Lawrence Mushwana, had been largely toothless and the Scorpions, the only anti-corruption watchdog with any bite had beed disbanded by the forces behind Zuma’s ascent to power.’ The ANC had thus far never had reason to fear that Office, which would explain why Madonsela’s findings and recommendations often went overlooked, disregarded or challenged in court.
But when Madonsela released her Secure In Comfort report back in 2014, the ruling party were under no illusion: this woman meant business. Despite encountering some ‘unusual challenges’ in compiling this damning report on Zuma’s Nkandla homestead, the document would rattle government and her own life to the core. ‘All hell broke loose,’ Gqubule quotes Madonsela. ‘There was so much mudslinging and I was being insulted. I was called a spy.’
Amongst others, Madonsela found that against Zuma’s oath of office, ‘it is difficult to reconcile the unconscionable expenditure attached to the [Nkandla] project and the spirit of [section] 140 of the Constitution.’ She therefore found that Zuma had benefited unduly.
‘President Zuma,’ she announced, ‘told Parliament that his family had built its own houses and the state had not built any of it or benefited them. This was not true. It is common cause that in the name of security, government built for the President and his family at his private residence a Visitors’ center, cattle kraal and chicken run, swimming pool and amphitheatre, amongst others.’
When President Zuma opted to ignore her findings to pay back a portion of the R246 million that went into the upgrades of his home, Madonsela joined the EFF and DA in taking the matter to the highest court in the land. Writes Gqubule: ‘Madonsela went to [the Constitutional] court because, if she accepted the president and Parliament’s stance that her powers were merely suggestive, her legacy would be a toothless office, unable to execute its primary mandate as envisaged in the law.’
The much-publicised, precedent-setting case would be the first of its kind in democratic-era South Africa and Wim Trevonge SC, representing the EFF put forth a spectacular argument. With a series of examples, Trevonge argued ‘that the president did not regard the Public Protector’s recommendations as binding’ …. and that ‘there is a singular and heightened duty on the President to respect the rulings of the Public Protector.’ On the National Assembly, (who’d seemingly unilaterally decided that Madonsela’s report ‘was wrong and subcontracted the job to the Minister of Police’) Trevonge argued that that they ”did not act in error but in defiance” of the Public Protector and her rulings.’
The impetus for the case was ‘to establish once and for all that the Public Protector may make binding orders.’ Representing the DA, Adv Anton Katz SC ‘echoed Trengove’s points. ‘This case goes far deeper,’ he argued, ‘than the question of the Public Protector’s powers, […] it goes to a systemic failure of government to hold to account that which is ultimately excessive, a homestead for one family.’
Before an astounded nation, the president’s legal representative, Jeremy Gauntlett SC, caught everybody unawares. ‘He began his presentation by saying that the president had conceded, and no longer believed that Madonsela’s office could only make suggestions and recommendations. Zuma accepted that her findings were binding.’ It was a monumental victory, not just for Madonsela but all the other PPs who could come after her and the nation at large. In the greater court of public opinion, it showed that although the powerful often get away with murder, when you have the right people in critical institutions, nobody is above the law.
Before Madonsela’s stint was up, she would release the profound State of Capture report. When everybody thought that its predecessor, Secure in Comfort, was already a significant accomplishment in Madonsela’s stellar career, they would gasp at the revealing contents of State of Capture, dubbed her ‘gift to South Africa’. From the infamous Gupta family appointing Cabinet Ministers; boardroom corruption at the national carrier, SAA; the controversial nuclear deal amongst a slew of other controversies that clearly indicated that SA had fallen into the realm of being a ‘deep state.’
In the wake of this release, Madonsela would vacate the PP’s Office making way for the now embattled Busisiwe Mkhwebane, the first Chapter 9 head ever to be removed through impeachment in the country. Needless to say, Mkhwebane’s record as the PP leaves plenty to be desired. Amongst these is her investigation on incumbent president Cyril Ramaphosa receiving a R500 000 donation from the now liquated BOSASA. A judicial review would find Mkhwebane’s report to be ‘unlawful,’ ‘irrational’ and ‘reckless’.
Her other salvo was to draft changes to the Constitution so as to nationalize the SA Reserve BANK (SARB). The SARB would win the lawsuit against her, a decision she would appeal. A plethora of catastrophic judgements involving ABSA, the Vrede Dairy Project, Pravin Gordhan and others would follow, heightening the national sentiment that she was unfit to hold public office. On 11 September 2023 she was removed from office by the National Assembly only to walk into a parliamentary gig as an MP for the EFF.
Her replacement is Kholeka Gcaleka, officially sworn in on 1 November 2023 by President Ramaphosa. One of Gcaleka’ first moves whilst still acting PP was to clear Ramaphosa of any wrongdoing in the Phala Phala farm robbery. This despite that an independent panel established in 2022 had found prima facie evidence that there was a ‘deliberate intention not to investigate the commission of the crimes committed at Phala Phala openly’ according to The South African website.
Furthermore, they found that ‘Ramaphosa abused his position as Head of State to have the matter investigated and seeking the assistance of the Namibian President to apprehend a suspect’ as well as that; ‘There was more foreign currency concealed in the sofa than the amount reflected in the acknowledgement of receipt. This raises the source of additional currency.’
The EFF would say the PP’s report wasn’t worth the paper it’s written on and that her official appointment was nothing more than a reward for having cleared Ramaphosa on the controversial matter.
So why put my Dear Reader through this drab history lesson on the PP’s Office?
Well, not sure about you but one can’t ignore the glaring overtones of the status quo operating just as before in this government of national unity (GNU). Despite the ruling party’s ‘step-aside rule’ which is supposedly intended to rid the party of tainted individuals on its supposed quest towards ‘renewal,’ hasn’t stopped corruption-accused member, Zizi Kodwa, from being sworn-in as an MP.
One week Kodwa was facing corruption charges amounting to R1.7million, the next he had his right hand up in swearing an oath to uphold the Constitution. It’s not rocket science that this rule has less to do with weeding out corruption in the ANC than to nail those who might not be Ramaphosa-friendly. Those who toe the party line, no matter how tarnished, will seemingly enjoy party protection at the nation’s collective expense. Without Chief Justice Zondo’s state capture commission, it is doubtful whether Kodwa would’ve had to face the music in the first place. And why him and not the arm-long list of other high-profile people implicated in the reports?
As stated in a previous article, the members of the GNU appear to have had the fiery sting they showed as opposition members detoxified. And when elected representatives do not stand vociferously for the national interest, then does the onus not squarely fall on independent entities particularly the essential Chapter 9 institutions? Without Madonsela, the nation would likely have had to accept that indeed the swimming pool at Zuma’s homestead was a firepool, built solely for the President’s safety. Michael Komape, the 5-year-old boy who drowned in a pit latrine at a school in Limpopo back in 2014, would likely have just been an overnight headline were it not for the people at Section27 who challenged government, eventually winning a R1.4million damages claim for the deceased’s family.
Entities like the SA Human Rights Commission have stood to safeguard our democracy and ensure the necessary checks and balances when government sit on their laurels and fail to act in the national interest. With Madonsela having paved the way as to what is possible, now more than ever, these institutions as well as an engaged citizenry are paramount to holding the powerful to account. When Zuma was challenging the PP’s findings on Nkandla, there were widespread protests across the country. By the time the State of Capture came out ‘Zuma must go’ had become a national slogan. Now a corruption-accused was sworn-in to Parliament and except for some armchair critics on social media, people simply went about their business. And one must ask: What does that tell you about this democratic nation of 61 million?