OPINION: Madonsela unleashed: The outlaw fires back on Nkandla
If a retweet by public protector Thuli Madonsela angered ANC members of the parliamentary ad hoc committee on Nkandla, one can only imagine the effect her media briefing on Monday had on them. Madonsela read out a 5,555-word document on Nkandla to the media that would have been the statement she presented to Parliament, had she been given the opportunity to do so. It was a political stunt, yes - one akin to Clint Eastwood addressing an empty chair at the 2012 Republican convention. But Madonsela says this was her only option to clarify issues, respond to attacks and reveal how her office is being prejudiced as a result of the Nkandla fallout.
It was little unorthodox for journalists to be addressed as 'honourable speaker' at a media briefing. Then again, in South Africa there are all sorts of surprises for journalists on the job - from signal jamming, to pictures being deleted by police officers, to the ANC secretary general tutoring what questions should and shouldn't be asked at press conferences.
Public protector Thuli Madonsela read out a lengthy statement at Monday's media briefing addressed to the "Honourable speaker of the National Assembly, honourable members of the National Assembly, people of South Africa". Had she been invited to appear before the ad hoc committee on Nkandla, Madonsela would obviously not have been addressing speaker Baleka Mbete. But Madonsela was making a point. She was demonstrating her frustration at being repeatedly attacked, and her report misrepresented in the committee, without being able to respond.
So Madonsela responded, playing both the messiah and the victim superbly. In the public eye, she is, of course, both. Madonsela addressing Parliament via the media could only have taken the ANC's contempt for her to the extreme. She said afterwards that she had not sent the document to Parliament before addressing the media, and intended doing so later in the day. That too would, no doubt, infuriate the recipients.
"I'm deeply saddened by the fact that I have to use the media as a platform to address you," Madonsela said in the statement. "This is not my preferred mechanism to engage you but the only one I have after the ad hoc committee deliberating on the findings I made following an investigation into alleged unduly excessive upgrades at President (Jacob) Zuma's private home decided not to invite me to address Parliament on the report."
What she sought to clarify in particular was that she never asked in her report for the minister of police to determine whether the president should pay a reasonable portion of the cost of the upgrades at Nkandla and what are non-security upgrades. "There is no legal basis for setting up an internal executive structure to review the findings of or reinvestigate a matter investigated or dealt with by a Chapter 9 institution. It cannot be done with the Auditor-General and it cannot be done for the Electoral Commission and the others," Madonsela said.
"In the case in point, the minister who exercises delegated authority, at the pleasure of the president who is the sole repository for executive authority, cannot under the Executive Members' Ethics Act account to Parliament on behalf of the president," she said.
In other words, Zuma should not have lobbed the problem onto police minister Nkosinathi Nhleko, who in turn should not have stitched together his report revising the public protector's report, and the ad hoc committee should not have been deliberating the cleanliness of Zuma's swimming pool and whether there should be aloe planted in the amphitheatre, among other things. Her report's recommendation was that the president needed to pay back a reasonable portion of the costs - consulting with National Treasury and the South African Police Service about what was 'reasonable'.
That remains the fundamental point of dispute between the presidency and Madonsela in a recent exchange of letters, with the ANC in Parliament clearly backing Zuma's understanding that Nhleko could revise her findings and recommendations.
Asked about ANC MPs' comments that her report was unsound and misleading due to the state of disrepair discovered during the ad hoc committee's site visit, Madonsela said her investigation was about what was constructed, not about what was maintained or not maintained. She said the state of neglect and disrepair needed to be urgently investigated by the ministers of public works and police.
Regarding Nhleko's recommendation that more money should be spent to improve security at Nkandla, Madonsela said it was not her place to say whether this was appropriate. Her report did point out, however, that the upgrades that were done needed maintenance for life and therefore would continue to incur state costs.
It is clear that Madonsela was taken aback and hurt by the attacks against her during the ad hoc committee deliberations. She said in its 20 years of existence, the public protector's office has never received "such vitriolic attacks from politicians" as it has done following the release of the Nkandla report.
"As the attacks are unleashed by all and sundry including, spokespersons of the governing party in and outside Parliament, without reference to specific offensive extracts from the report in question or the laws and related prescripts it seeks to enforce, I have wondered what would have President Mandela made of this bizarre turn of events," she said, quoting the former president on the role and respect due to her office.
"I've also wondered if the political conduct we've witnessed as an office, nation and the world, can be viewed as consistent with the national development plan's (NDP) assertion that 'overcoming corruption and lack of accountability in society requires political will, sound institutions, a solid legal foundation and an active citizenry that holds public officials accountable'," Madonsela said.
Madonsela did something else that will no doubt irritate the ANC. She said the animosity towards her has led to her office being negatively affected in terms of its budget. "The bickering, which has included withholding support for this office's request for a much-needed budget increase, is undermining this constitutional institution's optimal contribution to the strengthening of constitutional democracy through administrative scrutiny," she said.
She also said that the disrespect shown to her over the Nkandla report had set a bad precedent. "Since the bickering started, we are witnessing worrying defiant trends. The emerging attitudes, though few, are a worrying trend," Madonsela said. The responses to her reports now range from two-paragraph replies to people completely disregarding her findings and recommendations.
The ANC in Parliament hit back immediately against the accusation that they were punishing the public protector's office as a result of the dispute with Madonsela. "We are taken aback by Adv. Madonsela's allegation that Parliament is deliberately withholding funds to increase her budget to punish her for her investigation into Nkandla security upgrades. Such allegation is baseless and sounds like political posturing," the office of ANC chief whip Stone Sizani said in a statement.
"As the ANC, we have consistently supported the drastic increases of the public protector budget over and above those of other Chapter 9 institutions in the last six years. The public protector's budget, for instance, is currently standing at R246m (ironically the same amount she estimated as the cost of the Nkandla upgrades), more than double that of the sister Chapter 9 institutions."
"However, we agree that our national fiscus does not have a bottomless purse and therefore avoiding duplications or overlap of functions will go a long way in ensuring these state institutions share the burden, which would lift financial drain on others," the ANC statement said.
It is clear that Madonsela's media briefing only exacerbated tensions between her and the ANC, and would lead to an escalation of the attacks against her. The South African Communist Party (SACP) climbed in immediately, saying her behaviour was "arrogantly undermining Parliament and its processes". "Her behaviour leaves the impression that there possibly may be ulterior political motives that she is pushing," the SACP said. The party said Madonsela's report had painted a picture of Zuma and his family living in "opulence" and "luxury", and these have been "exposed to be wild exaggerations on her part".
Madonsela said her office was considering and getting advice on whether she should pursue contempt charges against those who attack her and those who do not implement her findings. But she is clearly reluctant to take the matters to court. She said she would only do so "under extreme circumstances".
"If the people of South Africa feel that the Constitution is being trampled on… let the people do something about it," she said. "The people of South Africa have to protect this office."
Madonsela's parting shot in her statement was an appeal to Mbete and members of Parliament. "I accordingly appeal that we stop personalising matters and comply with the Constitution as we partner in helping the people of South Africa exact accountability in the exercise of public power and control over public resources." She said her office was available to assist the National Assembly or any of its committees or members by answering any questions on the Nkandla report.
"I am hopeful that this statement will be received and considered in the spirit of putting our Constitution and our people first," Madonsela said.
When it comes to the ANC, it most certainly will not be received the way she hoped. The vitriol was already oozing out against her in interviews ANC leaders conducted after Madonsela's briefing, as well as on Twitter.
Madonsela took a gamble to address the media briefing, and like much else she does, it won her public favour. Her detractors, on the other hand, still look like lemmings running off a cliff. And they will continue to do so for as long as they keep the Nkandla issue alive.