Former public protector Thuli Madonsela’s “Secure in Comfort” report on the security upgrades at former president Jacob Zuma’s Nkandla residence was a watershed moment in holding the executive to account, and has a lot to do with events playing out now.
At the time of its release in March 2014, not everyone immediately comprehended the import of Madonsela’s findings.
Journalists were allowed to study the 447-page report in a three-hour lock-up prior to Madonsela announcing the outcome of her investigation at a media briefing. When the embargo was lifted, one former editor tweeted that Zuma had got off lightly as there were no serious findings against him.
This section in the report probably sounded rather innocuous to her: “His failure to act in protection of state resources constitutes a violation of paragraph 2 of the Executive Ethics Code and, accordingly, amounts to conduct that is inconsistent with his office as a member of cabinet, as contemplated by section 96 of the constitution.”
But it was by no means an insubstantial finding.
The president’s violation of the constitution and the public protector’s determination that Zuma should pay back “a reasonable percentage” of the cost of the non-security upgrades would rage for the next two years. The ANC sprang to the former president’s defence while opposition parties and civil society ramped up pressure against Zuma by seeking to affirm the powers of the public protector.
On March 31 2016 the Constitutional Court delivered a defining judgment that declared that the public protector’s remedial action is “binding”.
Chief justice Mogoeng Mogoeng ordered Zuma to “personally pay” the state for a portion of the benefits he derived from the upgrades at Nkandla.
In his unanimous judgment, Mogoeng said the following: “Within the context of breathing life into the remedial powers of the public protector, she must have the resources and capacities necessary to effectively execute her mandate so that she can indeed strengthen our constitutional democracy.”
He went on to say: “If compliance with remedial action taken were optional, then very few culprits, if any at all, would allow it to have any effect. And if it were, by design, never to have a binding effect, then it is incomprehensible just how the public protector could ever be effective….”
Immediate compliance
It is that judgment that strengthened the office of the public protector, and the reason the incumbent, Busisiwe Mkhwebane, is able to flex her muscles.
In the latest of many showdowns with members of the executive, Mkhwebane is demanding immediate compliance from President Cyril Ramaphosa regarding her remedial action against public enterprises minister Pravin Gordhan.
In late May, Mkhwebane found that Gordhan had violated the constitution by irregularly approving an early pension payout for former Sars deputy commissioner Ivan Pillay in 2010, and ordered that Ramaphosa take disciplinary action against the minister.
Ramaphosa says since Gordhan has taken Mkhwebane’s report on review, he will await the outcome of the high court proceedings before taking disciplinary action, if any.
Now it is the president who is seen as a credible and upstanding figure while the public protector is widely viewed as a tool of a political faction in the ANC and incompetent at her job
Over the past three years, there has been an interesting flip of the script regarding the public protector and executive accountability. This is mainly due to the change of occupancy in the presidency and the office of the public protector.
When the Nkandla report was released, the then president was disdainful of accountability and in the midst of surrendering the state to his friends to enable their pillaging project.
The public protector built a reputation as being fearless in pursuing her investigations and a bulwark against corruption.
Now it is the president who is seen as a credible and upstanding figure while the public protector is widely viewed as a tool of a political faction in the ANC and incompetent at her job.
Whereas society celebrated the strengthening of Madonsela’s hand in 2016 to ensure the enforceability of her remedial action, those same powers in Mkhwebane’s hands are now viewed as menacing.
Someone who foresaw this problem years ago was one of Madonsela’s fiercest critics at the time, deputy minister of justice John Jeffery.
Jeffery argued that the public protector would wield too much power if her findings were to be binding. Speaking at a colloquium of the Law Society of SA in 2015, Jeffery said the public protector is not a quasi-judicial body.
“The public protector is essentially an investigator, prosecutor and judge all rolled into one. That is quite unheard of in our law,” Jeffery said.
But nobody paid heed to this argument, as it was seen to be part of the ANC’s hit on Madonsela. Nobody considered at the time that Madonsela would not be in office forever and would be replaced by someone whose investigations and reports would be flawed, and whose agenda would be questionable.
Messy battle
The conundrum now, however, is not so much due to the public protector’s powers but rather because the politicians chose a person who does not meet the high standards required for that position.
Parliament is now in for a messy battle about how to contend with a public protector who has several damning judgments against her and whose competence has been called into question repeatedly.
As fate would have it, it is likely that the Constitutional Court will again deliver a judgment that will decide the fate of the public protector by making a parliamentary hearing into her fitness to hold office inevitable.
Mkhwebane applied to the court to appeal a high court judgment that ordered her to pay 15% of the legal fees in the Absa-Bankorp matter. The matter was heard in November and the judgment is being eagerly awaited.
Whatever the outcome, the saga serves as a cautionary tale that when it comes to presidents and public protectors, SA should stop dabbling with unworthy characters and then rely on the courts to save it from its bad choices.
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