When “unprecedented” court papers were served on the Public Protector on the morning of 8 November, Madonsela was at a small church near Mmabatho. The community of Dihatshwane, like many others, has experienced protests over land, education, electricity, water and roads, said Madonsela. She was there to discourage street protests and encourage engagement between the state and the community. Madonsela only found out her office was being taken to court when she eventually returned to her workplace.
The court action was officially an attempt by the JCPS cluster to get more time to comment on the security concerns contained in the Public Protector’s provisional report into the upgrades on Zuma’s private Nkandla home. But, more likely, it was an effort to stall Madonsela’s investigation. In her Wednesday press conference in Pretoria, she said she wanted to mend the rift that had developed as a result of the ugly spat.
But her commitment to getting the Nkandla report out is as strong as ever. By mentioning Dihatshwane, Madonsela made a number of points. Firstly, she had no idea that the ministers would take her to court or she would have been in the office. Secondly, she reminded us that this issue isn’t just about politics. Many South Africans do not enjoy the rights afforded to them by the Constitution and are yet to see the life improvements they expected.
Madonsela’s role is to help government deliver those rights and a large part of an effective government is the effective use of resources. She seemed to be saying: Nkandla isn’t just about whether Zuma is a competent president or not, or about the 2014 elections; it’s about the public’s faith in the state and how state resources are used.
The Constitution, Public Protector’s Act, and Executive Members’ Ethics Act give Madonsela the power to investigate the upgrades to Zuma’s house and she is determined to finish her work. Most of the problems surrounding the report arose when the ministers were allowed access to the provisional copy to check for breaches of security. She now plans to follow a “de-politicised way forward.”
Essentially that means cutting the ministers out of the process. The Public Protector had an agreement to show the document to a general in the Department of Defence to check if her provisional report compromised Zuma’s safety. She was not obliged to consult the JCPS ministers on security issues but did so in good faith after a request. “I now regret acceding to that,” she said on Wednesday.
Madonsela’s “depoliticised” plan has five steps.
First, her team will consider the 28-page response from the JCPS cluster on security concerns contained in the report.
Second, Madonsela recognised the point that neither she nor the ministers are security experts. So she will invite the ministers to nominate state security experts to discuss the concerns. In the interest of publishing the report, Madonsela said that even if she does not think a concern is valid, she might remove certain points from the report as long as the removal doesn’t compromise the whole story.
Third, any concerns that cannot be resolved will be sent to independent security experts.
Fourth, the provincial report will be shared with the affected parties who will get ten days to respond. Security ministers will receive copies of the provisional report but others will have to view it in the Public Protector’s offices.
Finally, those responses will be considered and the report published.
Madonsela thinks the provisional report can be sent out this year and the final report released in early 2014. She is confident in the timeline, which means it is likely her report will come out before the 2014 elections and serve as a rallying point for opposition parties to discredit Zuma.
In a statement issued shortly after Madonsela’s press conference, the JCPS cluster revealed little. “Government notes the Public Protector’s outline on how her office will deal with the interim report and comments submitted,” said GCIS. “The JCPS Cluster Ministers reaffirms government’s respect and recognition of the role and Office of the Public Protector and commit to taking the process further in a constructive manner and in the interest of the public and national security.”
The key point in Madonsela’s plan is that JCPS ministers will have a limited role. It will be their staff that the Public Protector consults, not them. The government experts will be required to offer legitimate opinions on security concerns or lie and risk their reputation, the possibility that their comments will be disputed by independent experts, or found to be invalid and not factored into the final report anyway.
What will Zuma’s loyal ministers do now? The JCPS cluster has suggested it may return to court to argue, as Police Minister Nathi Mthethwa did last week, that the ministers have the final say on what is classified as a threat to the president and the state. Madonsela is trying to circumvent that argument by allowing the state’s own security experts to have their say on the report (from here on in only see points of the report will be released rather than the whole thing until the provisional is sent out).
It’s likely we’ll see the matter in court again, but Zuma’s ministers will have to stick to the security issues. On Wednesday, Madonsela continued to repeat the laws that allow her to work independently and without influence. Public opinion has already turned on the ANC for apparently trying to intimidate her and ministers will have to weigh the pros and cons as any further court action against the Public Protector will harm the ANC’s public image.
Its members and proxies might continue to harp on a number points. They have argued that Madonsela sacrificed the president’s security by sharing her report with lawyers. They say she is wasting taxpayers’ money by duplicating investigations underway by the Auditor General and Special Investigations Unit (SIU). She’s accused of being confused about whom to submit the report to. Parliament has also been a constant critic.
She addressed each point on Wednesday. She said that while the ministers criticised her for sharing the information with lawyers, they broke the law by sharing the report with staff. It was specifically meant for the ministers only.
On the claims she should allow other organisations to investigate the issue because her work meant parallel investigations were taking place, Madonsela said, “It is a fact that both the Auditor General and the SIU had not commenced any investigations when we started this investigation and neither had the Minister of [the Department of Public Works] task team.” She added: “In fact if there was to be duplication, it would have been created by either the AG or the SIU commencing an investigation parallel to ours.”
On the criticism that she obviously should submit the report to parliament, she said the law only mandates her to submit reports to the president and premiers and years ago her office had requested the law to be reviewed yet nothing has been done.
On parliament’s criticism, she laughed, “Members of parliament have spoken very loudly saying I did this [….] I haven’t resorted to name-calling, I just sit there with my team and say, ‘Really? Did they just say that? Why don’t they read first?’”
Throughout Wednesday, she maintained that she wanted to mend the relations damaged by the court action. “It did not sit well with me to read in newspapers that my office was fighting with the security cluster,” said Madonsela. “I believe in our common commitment to the constitutional values that include transparency, public accountability and the rule of law will help us put aside the unfortunate court drama behind us.”
Despite her comments, the drama is likely to continue. Madonsela has shown she is committed to the rule of law and the job holding of government to account on its mandate to deliver a better life for all South Africans. When it comes to Nkandlagate, Zuma’s ministers have shown they are not committed to transparency or accountability. DM
High noon over Nkandla: Thuli Madonsela and the president’s gunslingers, in Daily Maverick
Nkandla report: Thuli Madonsela strikes back with force, in Daily Maverick
Photo: Public Protector Thuli Madonsela is seen at a news conference in Pretoria, Wednesday, 20 November 2013 where she spoke about the provisional report on security upgrades to President Jacob Zuma’s Nkandla homestead. Picture: Werner Beukes/SAPA
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