Analysis: Don't cry for Thuli Madonsela. She's untouchable, and she knows it.

It’s should really be no surprise that Public Protector Thuli Madonsela has made many enemies during her term in office. She has gone knocking on the doors of many high-ranking people in government and is not scared off easily. She placed President Jacob Zuma in the awkward position of having to institute a judicial inquiry into the conduct of his former friend, Bheki Cele, which resulted in the former national police commissioner being fired. Her investigations also claimed the heads of two Cabinet ministers: Gwen Mahlangu-Nkabinde and Sicelo Shiceka. 

Apart from her razor-sharp investigative reports, it is also her manner of operation that tends to rub people, particularly in the ANC, up the wrong way. Madonsela clearly enjoys the way she is projected in the media and therefore continues to feed the news monster. Her office has a cosy relationship with the National Press Club, which hosts media conferences on her behalf when she releases her reports. This guarantees her national media coverage.

Madonsela also knows how to hype up her reports. Her recent damning report on impropriety and corrupt practices relating to contracts awarded by the Limpopo Department of Roads and Transport was titled “On the Point of Tenders”, playing on the name of the company On Point Engineers, which is linked to expelled Youth League leader Julius Malema. A talented headline writer she definitely is. 

The report into allegations that Deputy President Kgalema Motlanthe and his partner Gugu Mtshali were involved in a sanctions-busting arms deal with Iran was called “Costly Letters”, playing on the intrigue around claims that government support was solicited to facilitate the deal. Motlanthe and Mtshali were cleared of any improper conduct by Madonsela. 

But it is her fierce independence and refusal to be a toady to political power that annoys some members of the ANC the most. It is obviously difficult for them to articulate this, so they instead accuse her of being “selective” in her investigations. 

Higher Education Minister Blade Nzimande earlier this year attacked Madonsela for acting selectively. Instead of going on the defensive, Madonsela simply asked for proof. Appearing before Parliament’s Justice and Constitutional Development Portfolio Committee last Friday to discuss her office’s annual report, Madonsela said she had written to Nzimande to request details of what he thought she had done to create the perception of bias, but he had not responded.

The ANC and SACP had also attacked Madonsela and called for her resignation after she attended a Democratic Alliance (DA) Women’s Day event. Quizzed about this by the Justice Committee, Madonsela explained to MPs last week that she had addressed the event as it was primarily about human rights, but acknowledged that it had drawn undue controversy. It is difficult for even her enemies to take the matter any further.

But it is Madonsela’s reaction to the sensation caused by a story in the Sunday Times entitled “Protector Under Attack” which shows how smart she really is. The story was prompted by two dossiers from within the office of the Public Protector, which have been submitted to Parliament, and states that political pressure is mounting against Madonsela. 

One of the dossiers is compiled by the deputy Public Protector, Mamiki Shai, and alleges among other things that Madonsela was lenient towards the DA. Shai claims Madonsela watered down a report on the Midvaal Municipality, which is led by the DA, and withheld its release until after the local government elections. 

The dossier goes further to claim that Madonsela sought to change damning recommendations against her by the Good Governance and Integrity Committee, and took up cases beyond her jurisdiction. Shai also says in the dossier that Madonsela has adopted a “Hollywood style” to investigations, which causes damage to people’s reputations. 

By Monday morning, a 2,173-word public statement was released by Madonsela, refuting all the allegations in detail. In it she also welcomes the justice portfolio committee’s investigation into a second dossier of complaints written anonymously and submitted to her office in July. Madonsela, in her usual unruffled manner, wrote to Parliament asking that the anonymous complaints be investigated. This investigation is yet to commence. 

On Shai’s allegations, Madonsela says in her statement: “To set the record straight and help the people of South Africa understand the full context, the Public Protector has decided on a full statement on the matter.” She denied that the Midvaal report, initially compiled by Shai, was changed to soften the findings or that it was deliberately delayed. 

“The truth is, the Public Protector entered the scene at a stage where a draft report dismissing all allegations had been prepared. It was under the Public Protector's supervision that a more thorough investigation was done and many allegations substantiated… The Public Protector was then within her powers to quality-assure the report before releasing it to the public.”

Madonsela also denied that she took up cases outside her remit, explaining a “thorough assessment process” informed by Constitutional and legal provisions. “Should anyone know of a case the public protector took that is outside her jurisdiction, the PP eagerly awaits such information. All incoming complaints are subjected to an internal assessment process, which ascertains jurisdiction and whether there is any merit to the allegations contained in the complaints. The public protector would welcome any evidence to the contrary.”

On her alleged “Hollywood style”, Madonsela says the law requires all Public Protector reports to be released to the public unless there are compelling circumstances for keeping the report secret. Again she makes a public challenge for anyone to substantiate which of her reports should have been kept secret. Investigations are conducted on the basis of confidentiality, Madonsela says.

“The public protector only confirms receipt and contents of allegations when complainants have informed the media about their lodging of a complaint and the media asks for such confirmation. Media dialogue on public protector investigations and reports is essential for the moral suasion critical for (the) public protector to make the necessary impact as a non-judicial enforcement mechanism.”

Madonsela was even more brazen in radio interviews on Monday reacting to Shai’s allegations. “I think those accusations are laughable," she told Talk Radio 702. 

Madonsela knows she is on the right side of the Constitution and the law, and that even if ANC parliamentarians rattle her cage in the justice portfolio committee meetings or through the pending investigation against her, a case suggesting political bias or improper conduct would not stand up against her. In any event, the ANC does not have the numbers in Parliament to impeach her, even if they wanted to (which does not appear to be the case).  

She therefore is going as far as requesting Parliament to increase her budget to hire additional investigators in order to take on more cases. She confirmed last week that she would be conducting an investigation on public spending on President Jacob Zuma’s homestead at Nkandla. While this has increased discomfort levels in the ANC that Madonsela’s findings could be potentially embarrassing of the president, particularly before the ruling party’s December elective conference, it is unlikely that this investigation will be complete by then.  

She said last week that the Nkandla investigation was still in its early days. “The investigation is going ahead, but what I cannot guarantee is when it will be completed,” Madonsela said. 

Many South Africans look to Madonsela as a guardian and chief corruption buster, even though she has no prosecutorial powers and can only make recommendations on corrective and punitive action. Her role is not threatened as long as she continues to act with integrity and without fear or favour. 

Daily Maverick named Thuli Madonsela South African Person of the Year in 2011. The motivation for that honour remains true now as it did a year ago. DM

Read more:

• Thuli Madonsela: The difference between unpopularity and misconduct on Daily Maverick

Photo of Thuli Madonsela by Greg Nicolson.