A victim of her own success
Public protector’s independence has made her few friends in power
SOUTH Africa’s third public protector, advocate Thuli Madonsela, has done much to restore the reputation of an office that, under her predecessor, advocate Lawrence Mushwana, had been accused of looking the other way in favour of the governing ANC. Behind the scenes, however, the institution is suffering a series of serious administrative problems and its new-found independence has brought with it a range of controversies.
A great many high-profile public representatives and institutions have felt the sting of Madonsela’s tongue: the late minister of cooperative governance and traditional affairs, Sicelo Shiceka, was declared “dishonest”; the decision to award tenders in favour of companies aligned to former ANC Youth League leader Julius Malema was “mind-boggling”; and the cabinet demonstrated “a systematic pattern of noncompliance” with regard to its ethical obligations.
The state has sometimes responded with hostility. In 2011, just after Madonsela concluded her investigation into the lease of new police headquarters, the crime intelligence unit raided her offices. Despite assurances by then police commissioner Bheki Cele that the incident would be investigated, there were ultimately no consequences.
Cele was later fired by President Jacob Zuma, largely because of Madonsela’s adverse findings against him. But not every investigation is so cut and dried. She had to redraft a preliminary report into a Western Cape communications tender in 2012, after a legal opinion from the province challenged its core findings. She was accused of kowtowing to the DA government — despite eventually finding the tender to be “invalid” — and as a result has faced an increasingly hostile reception from the ANC-dominated parliamentary portfolio committee on justice and constitutional development, to which she is required to report.
For example, the committee has shown little sympathy for the various administrative challenges the Office of the Public Protector faces.
Those challenges are serious. Three in particular are fundamental to the institution’s success.
First is a 21% increase in the number of complaints received by the office, up from 16 252 in 2011 to 20 626 last year. The problem is compounded by a lack of staff.
In 2012 the public protector had to deal with 27 376 complaints, of which it managed to finalise 16 763, or 61%. This meant 10 183 cases were carried over to the 2013 financial year.
The office has 137 investigators, divided into 13 units, including an office in each province. Each investigator should have an average of 144 cases, but the number of complaints means the average at the moment is 200. The Gauteng office, home to just 11 investigators, carries the greatest burden. In 2012 it dealt with 4 648 cases, an average of 426 for each investigator.
The complaints vary in nature, but the top four areas of unhappiness in the past year were justice (1 254 complaints); municipalities (1 204); and the departments of cooperative governance and traditional affairs (1 143) and home affairs (1 135).
Madonsela has been outspoken about the problem, calling for greater financial resources. No doubt they are needed. But it is worth noting the problem was worse under Mushwana. In 2004, for example, 22 350 cases were reported to his office. Perhaps as a result of a loss of faith in the institution, that number declined to 12 629 complaints in 2009, the year before Madonsela took over.
The second problem is financial. In the 2011/12 financial year, the office reported a loss of R5 310 477 and said its liabilities exceeded its total assets by R1 182 487 — which meant the institution was technically bankrupt.
Minister for Justice and Constitutional Development Jeff Radebe responded by pointing out that funds made available to Madonsela’s office had increased by about 95% in the previous five years, from R86.5-million for 2008/09 to R173.77-million for 2011/12 — or 19% a year.
But Madonsela does not believe this is enough, and last year asked parliament for a supplementary amount of approximately R60-million for each of the next three financial years, a significant amount of which would go towards bolstering the office’s infrastructure. In particular, she asked for R20-million to “re-engineer” its electronic systems. The ANC has not looked kindly upon the request.
Third and finally, the Office of the Public Protector has no sustainable way of monitoring to what degree its findings are implemented.
In part, this is an inherent constraint. The public protector may only ever make recommendations; its reports are not legally binding. Nevertheless, being able to track the extent to which the office’s findings are complied with is key to being able to evaluate its impact. Madonsela has said: “Unfortunately, no dedicated personnel are available for that purpose for now.”
Madonsela is just shy of her fourth year into her fixed-term, non-renewable seven-year contract.
On the horizon, the public awaits her findings on the state-funded work on Zuma’s Nkandla homestead.
This sort of scenario never took place under her predecessor, and many have drawn much comfort from the fact that the public protector now enjoys enough independence to be able to investigate the president himself.
But, as a result, the relationship between Madonsela’s office and the governing party is now a fragile one — and the consequences have yet to play themselves out fully.