Whether she’s listing five influential books or detailing maladministration and corruption, Thuli Madonsela communicates with evenly measured sentences, carefully chosen words. But the Public Protector has shown she is not afraid to speak her mind, despite political pressure to quieten her, standing up to authority in her own monotoned way.

Recently, she took on ANC MP Mathole Motshekga in Parliament. He repeatedly interrupted her briefing to the portfolio committee, dissected her office’s administration challenges and claimed she is friends with Democratic Alliance members. Madonsela suggested the ANC members were ignoring the facts and continuing the harsh treatment she’s received over the last year, since her report Secure in Comfort, better known as the Nkandla report, was released.

She also put herself on the line on the weekend. Police Minister Nkosinathi Nhleko’s own Nkandla report featured misstatements, inaccuracies, incomplete information, innuendos and false accusations, she said, most likely because he serves in the president’s Cabinet. Speaking to City Press, she went further, regretting her choice to report that Zuma benefited “unduly” rather than “improperly and unlawfully” from the Nkandla upgrades.

Her problem is Zuma’s private residence. The Public Protector is adamant the president must pay a proportion of the benefits he and his family “unduly” received. But instead of figuring out how much he has to pay, Zuma’s ministers and MPs have delayed the matter and exonerated their boss, turning a swimming pool into a fire pool, an amphitheatre into a soil retention wall, and a cattle kraal and chicken run into alarm-system-supporting infrastructure. Madonsela’s problem, her highest profile report going ignored, is the same that dominates headlines and talk radio.

The impact of Nkandla, however, goes further: Madonsela is facing ANC’s challenge to her office. She presides while we ask: What are the powers of the Public Protector? What must happen when its office makes a recommendation? And the unlikeliest of saviours, the SABC’s Hlaudi Motsoeneng, whose Teflon is starting to scratch, has come to the rescue. While trying to save his own skin, Motsoeneng might risk his president’s. Or he could prove the case that upholds Zuma and the ANC’s defence.

Almost everyone claimed victory after Western Cape High Court Judge Ashton Schippers last year ruled in Democratic Alliance vs SABC and Others. The DA said the Public Protector’s recommendations must be implemented unless there are rational grounds that stand up in court to refute them. The ANC said Madonsela’s reports must be considered, but are not binding. The Communist Party said the Public Protector had been misleading the country, perhaps manipulating the role of her office.

Madonsela was politely scathing in her response to Schippers’ limit on the impact of her decisions. Looking at the comparison the court made between the Public Protector and other ombudsman offices the judge used to make his finding, she said it’s like “someone saying there’s no difference between a Mercedes Benz and a VW Beetle because as long as something is a car, it has the same power as any other car”.

Perhaps it was Schippers who offered the most clarity. He said the Supreme Court of Appeal (SCA) must rule on the Public Protector’s powers. On Wednesday, with Motsoeneng due back in court with the DA, an agreement was reached. The SABC boss can keep going to the office, for now, but the case will be expedited to the SCA, likely to be heard by September.

Public Protector acting spokesperson Oupa Segalwe said on Wednesday, “We actually agreed with Judge Schippers’ last judgment that the issue of the powers of the Public Protector should be determined by the Supreme Court of Appeal. We consider it an urgent matter because there is almost a paralysis in the public mind regarding the value of using this office as an avenue for public accountability and access to justice on matters involving alleged improper conduct in state affairs.”

It’s possible Motsoeneng will be suspended while a disciplinary hearing looks into the multiple allegations against him, regardless of what happens to the understanding of Public Protector’s powers. Even though Schippers found Madonsela’s recommendations are not binding, he said they must be considered, which did not happened in Hlaudi’s case.

The bigger question is whether Madonsela’s office can be delinked, as she puts it, from aspects of the Constitution subjecting Chapter 9 institutions only to the law and the Constitution, which avoids political interference. Looking at the ANC’s oft-stated position, that the Public Protector is not a court of law, that her findings are not binding, Madonsela last week used the Independent Electoral Commission (IEC) as a hypothetical example to explain the impact of what’s going happening.

“If you were to stretch this argument further, you could say that if the IEC makes a decision that a party did something wrong and it must be excluded from the electoral process, the review institution will not be a court of law but Parliament, which will say, ‘IEC, you are wrong, the party stays and it will contest the elections because you are not a court of law’,” she said.

If the SCA upholds Schippers’ ruling, Zuma will likely be exonerated for the Nkandla upgrades, given the lengthy considerations Parliament can claim to have conducted on Madonsela’s findings. If the proxy case between the DA and SABC supports the Public Protector’s position, opposition parties will have the necessary leverage to take the state to court to implement the recommendations or force Zuma to challenge the findings in court.

The Public Protector, however, is clear the battle goes beyond Nkandla. It’s about the country’s system of accountability, the role between Parliament, the executive and Chapter 9 institutions. DM

Read more:

• Analysis: Nkandla, Madonsela and the Schippers ruling in Daily Maverick

• Why is Nkandla Thuli Madonsela’s battle in Daily Maverick

Photo: Thuli Madonsela, Hlaudi Motsoaneng (Sapa)