Opinionista John Clarke 1 April 2014

Civil courage and official cowardice

When officials are “cowardly”, they open the space for civilians to rise to the occasion and take more courageous action. It’s not a solution, but there are moments when we see the benefits of the courage of citizens.

At a recent post-Nkandla Report public meeting at Wits University, Public Protector Advocate Thuli Madonsela was asked in question time what advice she had for her successor. “Be a coward.. like me,” she said disarmingly.

“Cowardly” is not how anyone, even her enemies, would have assessed her character. She explained that all she had done was to perform the job mandated by the Constitution, to remain within her legislated powers, and take care to only make findings that could reasonably be substantiated from available evidence on a balance of probabilities.

Having lodged five complaints since 2007 with Chapter Nine institutions (one to the Human Rights Commission and four to the Public Protector) her response left me deeply pensive as I went about drafting the sixth – against the Sanral board for its alleged abuse of power and maladministration in its handling of e-tolls. It is now in the works at the Office of the Public Protector. In the public interest, it has been put up on the OUTA website. Some background will help the public better grasp what is at stake.

The Human Rights Commission handled my first complaint in 2007, lodged on behalf of the Amadiba Crisis Committee from the Wild Coast and the Mpondo Royal Family. It threw a major spanner in the works to thwart the ambition by the Director General of the Department of Minerals and Energy (as it was then) Advocate Sandile Nogxina, (since retired) to award mining rights for the Xolobeni mineral sands to an Australian venture capital mining company, MRC Ltd, and their BEE partner, the Xolobeni Empowerment Company. The mining rights were suspended in September 2008 and finally revoked three years later in May 2011, prompted by a complaint we lodged with the Public Protector against Minister Shabangu for undue delay in adjudicated the dispute. Simultaneously a media release was released announcing the complaint. So swift was Minister Shabangu’s response to inform us of her decision that the Public Protector didn’t even have to formally register the complaint. We hoped that would be the end of it. It wasn’t.

In the aftermath, information came to light that necessitated another complaint to the Public Protector against Advocate Nogxina specifically for, inter alia, failing to declare his conflict of interests when he awarded the mining rights. He is from the area and had allegedly said had intended running the mine upon his retirement as DG. He had allegedly offered gratifications to the Amadiba community leaders to try to persuade them to withdraw their objections. The whistle-blower was then allegedly intimidated into withdrawing his statements before the media could publish them.

Because his alleged conduct was of a criminal nature, it was beyond the powers of the Office of the Public Protector, and she promptly referred it to the National Director of Public Prosecutions, at the time Advocate Menzi Similane (since dismissed). His reply has been framed and placed on my study wall. “We do not have an investigative capacity, but you are at liberty to report the matter to the South African Police within the area of jurisdiction, who will register a case docket and do the necessary investigations”.

It placed us in predicament, because two police officers from the local police station had been among the sixteen thugs who arrived at the informant’s house to convince the whistle-blower to sign a retraction. Nevertheless we did as he advised, and went up the chain of command in the police – but not so high as to land on the desk of the then-National Commissioner of Police Bheki Cele (since dismissed).

However, the lessons learned from that episode taught me the shocking truth that whatever corrupting influence foreign companies exert, they cannot get their way without politicians and senior officials within the South African State “accommodating” their interests. Invariably they have done so by NOT being cowards. In fact, they have been very courageous and bold. Courage and ethical integrity are not synonymous.

The same mining company is back with the same BEE partner to try all over again. Would this have occurred if the Public Protector had taken a risk and acted more courageously in championing my cause in 2011, instead of passing it over to Menzi Simelane?

The fifth complaint from my pen was lodged in May 2012 after OUTA had successfully won its application to interdict the e-toll switch on. It was against Sanral CEO Nazir Alli alleging his abuse of power. Someone with intimate internal knowledge of Sanral’s workings had read an article I had written, which the Sunday Times had published. The informant contacted me to add substance to my long-held suspicion that Sanral CEO Nazir Alli had exceeded his mandate as CEO of Sanral in his dealings with a consortium of construction industry companies. The complaint alleged that he had manipulated the Sanral Board of Directors to agree to set aside a significant slice of their Treasury budget to bring the ill-fated N2 Wild Coast Toll Road within commercial reach of the consortium. They had submitted an “unsolicited proposal” for a Public Private Partnership to “Build, Operate and Transfer” a shortcut and upgrade of the N2 between Durban and East London in return for a 30-year tolling concession. We alleged that Sanral had violated its mandate to “harness the efficiencies of the private sector” by improper use of State resources, not to simply “harness” but “lubricate” the efficiencies.

I was very disappointed when Advocate Madonsela informed me that unfortunately, since the alleged incident had occurred too far back in history, it was way beyond her delegated constitutional powers to investigate. Consoled by the fact that at that stage Mr Alli had resigned and that a court process was underway, I eventually came round to accepting that. Even when he withdrew his resignation, I reasoned that at least the OUTA court challenge underway would serve to bridle him.

That was not the scenario that unfolded. It has been quite the opposite.

Would the e-toll debacle have come to the present impasse if she had “pushed the envelope” in 2012 to investigate my complaint against Mr Alli for his alleged abuse of power?

The Amadiba community and Mpondo Royal family showed me what civil courage meant in their decade-long struggle against the “manipulated consent” strategy used by the advocates of the Xolobeni mining and the N2 Wild Coast Toll Road schemes. The mining company and their BEE partner are back to try all over again, pretending that the incident never happened. That’s bad. However, I would never have been able to spiritually and emotionally sustain my social working by fixating on the negatives. The unexpected positive was that we never imagined that the same themes and issues would play themselves out for millions of Gauteng residents in the struggle against the “manipulated consent” strategy by Sanral and e-toll protagonists.

Reading between the lines of my sixth complaint will reveal immense civil courage exercised by the informants, Wayne Duvenage, journalists and the sources who came forward two years ago.

So thank you, Advocate Madonsela, for being “cowardly”. Paradoxically, I now fully understand your “cowardice”. Moreover, I even find myself strangely grateful that you did not do what I wanted in the above two instances. You helped me grow up and take responsibility for the Bill of Rights, and especially to more deeply internalise a profound truth that Dr Mary Robinson, the former President of Ireland and UN High Commissioner for Human Rights, said when I met her in 2007. “Human rights do not belong to government. They belong to people.”

She added: “It is by concerted citizen action that we hold government accountable”. If only all state officials, presidents and Cabinet members were more “cowardly” and stuck religiously and conservatively to their constitutional mandates and oaths of office, we would not be in the trouble we now face. DM

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