Sunday Times

A victim of her own success

Public protector’s independen­ce has made her few friends in power

- GARETH VAN ONSELEN

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.

 ?? Picture: MOELETSI MABE ?? WITHOUT FEAR OR FAVOUR: The relationsh­ip between public protector Thuli Madonsela and the ANC is now fragile
Picture: MOELETSI MABE WITHOUT FEAR OR FAVOUR: The relationsh­ip between public protector Thuli Madonsela and the ANC is now fragile

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