Opinionista Moloto Mothapo 15 April 2015

The flaws in Saint Madonsela

In a climate where all it takes to be a media darling is a barrage of Zuma criticism, it is never advisable, under any circumstances, to speak ill of the Public Protector, Adv. Thuli Madonsela. In fact, you can rubbish the dead all you like, tearing into them for the most obscure misdemeanours committed while still breathing. You can trash the Pope, the Dalai Lama or Mother Teresa and live to tell the tale. But don’t think of speaking ill of the Public Protector.

We live in interesting times, where all it takes to be exalted as the height of courage, speaking truth to power, is to indulge in the pastime of the masses – in media, anyway – namely criticising President Jacob Zuma.

I have previously written on these pages that even within our punditocracy, the common rule among analysts is that for their services to be sought widely by the media, the have to project themselves as hostile and ruthless toward the governing party. Therein lies the key to a successful career as a public commentator with a badge of bravery.

This is strange, considering that we live in a constitutional democracy, where the possibility of arrest, torture or death for speaking out against the government is hardly a possibility.

Take Julius Malema as a shining example. Just a while ago, when he was leader of the ANCYL, he was a magnet for brutal headlines, torment and jokes by the media. For his role in the ANC and its youth league, he was constantly ridiculed, ruthlessly assailed and maligned at every turn. Today, he is a media darling who hogs headlines daily with laudatory coverage largely due to his anti-Zuma insults, gimmicks and delinquency both inside and outside of Parliament. All it took to achieve this new level of affection was for Malema to reinvent himself politically through making regular anti-Zuma rhetoric the basis of his career. As long as he keeps it anti-Zuma, the media is comfortable turning a blind eye to, or even justifying, his flaws. As Blade Nzimande lamented recently, television viewers would witness live footage of EFF MPs disrupting Parliament, but would gladly accept it when the next day the media told them it was President Zuma’s fault.

In the case of the Public Protector, she has been given the honour of sainthood by the press for the several adverse findings she made against the government, which are normally accompanied by her colourful public utterances. There is no denying that Adv. Madonsela has done a great job since her appointment by Parliament in 2009. As the ANC in Parliament often articulates in its statements, she has given new energy to this critical constitutional institution, ensuring that acts of malfeasance, corruption and other unethical conduct is exposed and dealt with. The government has generally been, and continues to be, supportive of her office, including implementing the overwhelming majority of her recommendations without contestation, and drastically increasing her budget three times more than those of other Chapter 9 institutions over the last six years.

She has been given a string of accolades both locally and internationally for her accomplishments as Public Protector in democratic South Africa.

However, despite the media’s best efforts to portray her as an infallible saint, never susceptible to any misstep, the fact remains that Adv. Madonsela does have her blemishes. However, the unwritten rule of our country’s media is that such imperfections, convenient to the general media narrative that jealously guards those it purports as useful weapons against the establishment, must either be under-reported, ignored or swept under the proverbial carpet. It has become commonplace for anyone who dares to point out her flaws or disagree in principle with her office to be subjected to public ridicule by the media and execution by its firing squad, the pundits and opposition.

In terms of the unwritten Madonsela Clause in the press code, what is regarded newsworthy by the media is not the substance or legitimacy of the criticism of her office, but the mere act of criticising. How dare you criticise Saint Madonsela? Essentially the media – which worships the ground she walks on – has effectively criminalised any legitimate criticism of a head of a public institution and ensured that any would-be critical voice against her office is bulldozed into silence.

Consistent with the St. Madonsela Clause, the media reported as nothing out of the ordinary that last week the Public Protector, during her address to the Klein Karoo National Arts Festival in Oudtshoorn, launched a scathing attack against a sitting judge of the Western Cape High Court, Judge Ashton Schippers. Judge Schippers ruled recently in the SABC vs. Public Protector case that the Public Protector’s recommendations were not binding. Adv. Madonsela, who, according to the media reports, “lambasted those who tried to reduce her findings to mere recommendations”, also took Judge Schippers to task for comparing the powers of the UK ombudsman to those of South Africa’s Public Protector. Insinuating that Judge Schippers might be deliberately frustrating her application for leave to appeal the judgement, Adv. Madonsela said: “We have been waiting six months for the judge to apply his mind but have received no answer to our request for leave to appeal.” Madonsela went further, reducing Judge Schippers’s judgement on her powers to “a cut and paste judgement from the UK”. If that’s not a personal attack on a serving jurist, then we do not know one. Such malicious attack on the integrity of a judge is unprecedented, especially from a head of a Chapter 9 institution. Even the loudest opposition parties do their best to adopt a measured tone when it comes to criticising the judiciary.

Judge Schippers is not the first judge to hold that the outcomes produced by the Public Protector are recommendations and thus not enforceable. Judge Robert Nugent of the Supreme Court of Appeal ruled in the Public Protector vs. Mail & Guardian that Public Protector’s findings did not carry the same weight as Court judgments, or else the Constitution would have so indicated. Curiously, Adv. Madonsela herself recently argued before the Pretoria High Court in a case against the department of Home Affairs that her findings were indeed not binding. She said: “The Public Protector therefore does not… make legally binding pronouncements… It is simply a watchdog,” adding: “If the applicants find it appropriate, they may ignore the recommendations that I propose.” It would appear that, insofar as the Public Protector is concerned, the enforceability of the Public Protector’s reports varies from case to case.

Under normal circumstances, a head of a body supporting our democracy established in terms of the Constitution publicly lambasting a judge of court for merely making an unfavourable judgment would have caused some degree of consternation. But ours is not a normal media environment. It is common practice that litigants are expected to refrain from publicly discussing or influencing pending cases in which they are directly involved. Conduct by litigants that might be seen as trial by the media or any platform other than a court of law is generally discouraged. Besides, there ought to exist a modicum of mutual respect amongst state institutions established by the Constitution in order to protect their integrity and preserve the confidence of the people in them.

Undoubtedly, the Public Protector enjoys her right under the law to appeal judgments with which she disagrees. However, it is strange that she would opt to publicly disparage the integrity of a sitting judge instead of simply allowing her legal arguments to do the talking, should the appeal be heard. Also, the Public Protector has on numerous occasions stated that the outcome of her investigations may only be overturned by the courts. It is therefore ironic that she would take such offence when the court overturns her ‘findings’ as to launch a scathing personal attack on the responsible judge.

The reality is that not only has the media created a climate in which any criticism of Adv. Madonsela is considered an abomination, it has also created a head of a public institution who is so accustomed to praise that she is herself beginning to show signs of intolerance to criticism. On Twitter, where she enjoys huge presence with thousands of followers, this writer recently discovered that he had been blocked after tweeting extracts from the ANC caucus press release disagreeing with some of her views. Like any Twitter user, the Public Protector has the right to block anyone whose posts she dislikes. However, such a petty decision, coupled with her public criticism of Judge Schippers, illustrates a leader that is easily irritated by criticism. While she cannot stand dissent, she is ever ready to blast others from her media-protected bubble. The media might one day live to regret its own creation, the same way it did recently with Helen Zille. After years of decorated and sweetheart coverage by the media as a pin-up girl of anti-ANC crusade, she turned on the media (The Cape Times) when it started showing signs of neutral reporting.

Attacks of the kind directed at Judge Schippers, made in a media environment in which disagreeing with a particular head of a Chapter 9 institution is considered an unforgivable crime, should have drawn the ire of the media and legal analysts alike. But it was easily missed, buried under the heap of her latest ‘newsworthy’ quotes admonishing the president.

Thanks to the prevailing climate created by the media, to dare point out such things is tantamount to venturing where angels fear to tread, which is punishable by humiliation and public execution by the media lynch mob.

So here I am, lynch mobsters. I have committed the unforgivable sin against Saint Madonsela. Hang me. DM

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