COMMENT
Advocate Thuli Madonsela was appointed as the head of the public protector's office in 2009 by President Jacob Zuma, then newly elected head of state and a man with "smallanyana skeletons" in the closet, to quote ANC Women's League president Bathabile Dlamini.
Madonsela was expected to carry on the tradition of her predecessors, Selby Baqwa and Lawrence Mushwana, and let the public protector wallow in obscurity in its headquarters on Lynnwood Avenue in Pretoria, unquestioning and impotent. Madonsela, however, formerly of the Legal Reform Commission and a constitutional drafter during the negotiations, had other ideas.
The public protector's office is established in terms of the Constitution and the Public Protector Act. Its function is to investigate complaints made by individuals against government, its agencies, as well as organisations in which government is a stakeholder, and to advise on appropriate remedial action. Legislation has defined that the public protector enjoys the same status as a judge of the High Court. The office was established after 1994, replacing the old ombudsman, and modelled on the German and Canadian bodies. The public protector is appointed by the president of state.
Under Baqwa and Mushwana, the public protector never was an office to contend with within the broader criminal justice system. In one of its more famous cases, it meekly rolled over when it investigated the controversial arms deal as part of the Joint Investigating Task Team in the early 2000's.
Madonsela, now a darling of the media and considered by some to be the ordinary man's champion, wasn't always loved by all. Appointed with strong ANC support, the Democratic Alliance didn't support her candidacy. Dene Smuts, DA MP and stalwart in the justice committee, often questioned Madonsela's modus operandi and the way in which she ran the public protector's office. "Who does she think she is?" Smuts often asked during meetings of Parliament's Justice Committee.
Madonsela's dogged pursuit of the Nkandla investigation is her and her office's signature achievement. It is no exaggeration to say she forced the president to reimburse the state coffers even though the full might of government and party was used against her. Not only that, she entrenched the powers and reach of the PP by enrolling the support of the Constitutional Court. This ensures its mandate can never again be challenged.
The success of the Nkandla investigation emboldened her to tackle accusations of state capture against Zuma, a phenomenon that denotes the improper influencing of state officials to narrow and material ends — rentseeking, in communist parlance. With Zuma once again firmly at the centre, it once more exposed our head of state's movable mores. Even though her investigation wasn't finished, it laid the groundwork for and built the framework within a wide-ranging investigation into government corruption.
Busisiwe Mkhwebane, Madonsela's successor and the fourth public protector, seems to be more in the Mushwana than Madonsela mould. She declined to oppose Zuma's application to prevent the report into state capture being released — in effect, her report — and seems to be doing all she could to distance herself from het illustrious predecessor. The fact that she was nominated by somebody in the Presidency and comes from the intelligence community does not inspire confidence.
Mkhwebane praised soon to be ex-Eskom CEO Brian Molefe, who had a starring role as a Gupta vassal in Madonsela's report on state capture, when he resigned from the parastatal.
Institutions certainly do not equate to individuals, but institutions — constitutional or otherwise — can not function if the individuals that constitute it are not fully committed to its ideals. Madonsela was, and she seems to be the exception.