Thuli Madonsela - game changer, giant slayer
In 2011, Daily Maverick named Public Protector Thuli Madonsela as Person of the Year based on her outstanding work in exposing maladministration, abuse of power and improper conduct in government. Two years later, Madonsela remains a shining light in a society which is consistently disappointed by the conduct and failings of public figures. But as much as she tackles her work with fervour, Madonsela says it causes her great pain to expose the failings of others. She spoke to Ranjeni Munusamy about investigating Nkandla, her clashes with MPs and life after the Office of the Public Protector.
There are three things Thuli Madonsela says which illustrate her outlook to life. Her counsel to her team at the public protector's office is that should never find themselves in the position of the people they investigate. Her advice to her children is that they should strive to be good human beings and try not to look for trouble. Her prayer for herself is "God help me that I won't be the one to bring this office into disrepute. I don't want to be the weakest link".
Even her harshest critics admit that Madonsela has her heart in the right place as she goes about her work of investigating and redressing maladministration, improper conduct and abuse of power in state affairs. Madonsela's fierce independence and refusal to look away from controversial cases involving powerful figures in government has earned her widespread respect but disdain from some political quarters.
While Madonsela's office processes thousands of complaints from across the country every year - last year the public protector's office finalised 16,763 complaints - there has never been as much eager anticipation of her investigations as two matters her office is currently dealing with: the upgrade of President Jacob Zuma's Nkandla home and the government task team which probed the Gupta plane landing at Waterkloof Air Force Base.
While previous investigations involved members of Cabinet, the former National Police Commissioner Bheki Cele and Deputy President Kgalema Motlanthe's romantic partner Gugu Mtshali, Madonsela is now in the purview of the super high rollers: Number One and his mates, the Gupta family.
Madonsela only agreed last month to investigate a complaint from an air force official, Lt-Col Christine Anderson, against the task team which probed the landing of a jet carrying Gupta wedding guests at Waterkloof Air Force Base earlier this year. While Madonsela's probe will not involve the highly connected Gupta family directly, it will assess whether there was any improper conduct on the part of the state officials who dealt with the matter with unprecedented speed.
The blame for the breach of protocol and security procedures were pinned on officials, including Anderson. The Guptas and their friends in government have been eager for the Waterkloof incident to be buried away but Madonsela's probe now keeps the issue alive.
But the most high-stakes investigation undertaken by the public protector's office is the one into allegations of improper conduct regarding the R206 million security upgrade at Zuma rural home at Nkandla. This investigation has been delayed for several months as the public protector awaits information she requested to complete her report. She has still not received it.
An investigation into the upgrade of the private home of the president of the country must carry a certain amount of angst. After all, Zuma was the person who appointed Madonsela. It would be highly embarrassing for the state and the president if she were to find that there was indeed irregular and improper conduct involved. It would be even worse if Madonsela confirms that there were attempts by the state to stymie her investigation through the withholding of information.
But Madonsela says there is nothing extraordinary in the way her office is dealing with the Nkandla investigation. "Every investigation has to be thorough. We try not to get caught up in the media drama. We give our best to every investigation."
However, to make sure she knew exactly what she was dealing with, Madonsela conducted an inspection-in-loco at Zuma's Nkandla estate in August. It is likely to give dimension to her report, rather than simply assessing the paperwork dealing with the upgrade.
It is rare that someone who goes above and beyond the scope of her work faces criticism for doing so. This is precisely what has led to the fractious relationship Madonsela has with some members of the parliamentary portfolio committee on justice, which exercises oversight over the work of her office. Madonsela has been accused of overstepping her mandate and taking on investigations that are not within her jurisdiction. She has also been faulted for diving into big cases, which cause a media sensation, and not paying sufficient attention to addressing systemic problems in government.
But Madonsela seems to understand her role differently from the way members of Parliament see it. She wants her office to be the place for people to go when they are given a "raw deal" in their interaction with government or made to "suffer when dealing with officialdom".
"We want to make sure that person on the street who faces a David versus Goliath battle has a place to go when they feel wronged by the state," Madonsela said. But MPs have questioned her caseload, saying some of the cases Madonsela undertakes should rather be dealt with by the courts or other institutions.
"We were created to be there for the average person. Going to court requires huge capital outlay," Madonsela says. "Members of the justice portfolio committee have expressed that some matters should ideally go to court first. This is a misunderstanding. Both the Constitution and the Public Protector Act state that once a court has spoken, the public protector cannot get involved."
She explains that the Ombudsman is the easier remedy as the processes involved in seeking intervention from the public protector is simplified as opposed to the complexities of the courts. Cases before the civil justice system can also be long-drawn, involving large amounts of money for legal fees and do not necessarily give the complainant the remedy they seek. But unlike a court of law, Madonsela has no powers to enforce decisions and can only make recommendations on corrective action.
Madonsela says when people are desperate, on the verge of losing their homes or businesses, the courts are not the ideal resort. The office of the public protector aims to be "quick and inquisitorial", Madonsela says, and make speedy interventions to help people save their possessions, get life-saving treatment from a state hospital or access documents stuck in the home affairs system that is preventing a young person from getting a scholarship to study overseas.
But the size of the public protector's operation and resources allocated by the state is prohibitive to the role Madonsela wants to play. She has a staff of about 300 people working across the country, 100 of whom are trainees who come and go. The public protector's office covers the work of about 1,200 state entities, including in the three layers of government and state agencies. An investigator can sometimes carry over 400 case files, which causes delays in the time it takes to resolve them.
This is why the justice portfolio committee has cautioned Madonsela against operating as the quintessential agony aunt, running to the rescue of every aggrieved person out there. Still, while the National Treasury has increased the budget of the public protector from R86.5 million in 2008/09 to R199 million in this financial year, she wants an additional R97 million.
While Madonsela comes across as being methodical and even dispassionate in how she deals with investigations, she confesses that it saddens her when she has to blow the lid off to expose someone's failings. She tells how in one case, the person affected by her report broke down in tears due to the findings.
"I also had to go to the bathroom and cry for the person. No normal person can celebrate the pain of other people. I'd like to believe I am not bitter and twisted."
Madonsela says she is particularly affected when her investigations involve women as she has been a gender activist all her life. "It saddens me to be the one who will come with the bad news that someone has not done things right."
Despite her office being one of the few bright lights in the public system, Madonsela has been accused of pursuing an agenda against the ANC government and also being publicity hungry. There have also been whispers about her harbouring political ambitions after her term of office as the public protector expires.
She answers straight out when asked if she would consider political office. "Politics is important but it would not be my best contribution as a human being. Doing the technical work, advising and making decisions around fairness is something I believe I do better."
Madonsela says she was on the original list to go to Parliament as an ANC MP in 1994 but she declined to do so. "My answer then was no and it would still be no."
Madonsela says her aspirations are for a time when gender, race, disability and nationality "just mean difference and not disadvantage".
"I don't have any specific ambitions. I know for sure I will use some lessons to build some jurisprudence around administrative justice, perhaps around training.
"Mostly I want to change how people treat fellow human beings. I have had humbling experiences seeing how people suffer in dealing with officialdom. They hit a brick wall with no ears and no eyes. When we unlock one of those walls, there is no better feeling."
But like with any job, there is always one case which will define you more than all else. The big, defining test of Madonsela's career is coming soon; but it will also likely be a defining test for our democracy - whether the system upholding good governance can withstand the pressure of the most powerful. One gets the feeling Madonsela has the clear understanding of the burden that a society in distress has placed upon her shoulders.
This column appeared in Daily Maverick.