Madonsela: Review of public protector decisions does not necessarily indicate incompetence

The fact that Public Protector Busisiwe Mkhwebane’s decisions will go on review does not necessarily indicate incompetence, Thuli Madonsela, law trust chair in social justice at Stellenbosch University, said on Tuesday.

Madonsela, who served as public protector between 2009 and 2016, was a guest speaker at the i3 Summit 2019 at the Spier Estate near Stellenbosch.

“The Public Protector, the Auditor General and the Human Rights Commission, among others, have the mandate to hold all in SA accountable, from the cleaner right to the top,” said Madonsela when asked for her views on her successor.

She said she gets the sense that President Cyril Ramaphosa appreciates the importance of an independent public protector, as well as other institutions like the Human Rights Commission and the Auditor General.

“During state capture there was interference with institutions and that shadow of impropriety is still with us. There is a process of a constitutional review and all of these institutions will be reviewed,” she said. 

On Sunday Mkhwebane’s spokesperson, replying to criticism of the public protector, argued the trend of labelling her office ‘incompetent’ in protest against her findings borders on contempt. 

Oupa Segalwa was responding to the Financial Sector Conduct Authority filing court papers in the North Gauteng High Court to set aside a report which made findings of impropriety and maladministration against it. Minister of Public Enterprises Pravin Gordhan earlier filed a review application in the same court to set aside a report by Mkhwebane which found he acted improperly in granting early pension with full benefits to Ivan Pillay, a former deputy SARS commissioner, in 2010.

In his affidavit Gordhan argued Mkhwebane revealed ‘stunning incompetence, irrationality and negligence’ in the performance of her duties.

‘The tentacles remain’ 

Madonsela said that, in her view, South Africa has not seen the last of state capture. “The tentacles that were left remain there,” she said.

She in late November 2016 published a landmark report into state capture, which led to the creation of the judicial commission of inquiry into state capture. The inquiry commenced in August 2018 under Ramaphosa. 

Madonsela said in her view that Ramaphosa has managed to stand his ground in areas that matters thus far.

At the same time, she thinks it “looks dicey” whether Ramaphosa has obtained the necessary mandate to take action against those implicated in state capture. “The internal struggles of political parties can only be addressed if civil society holds public officials accountable,” said Madonsela.

She would like to see government pass a law to compensate whistle blowers, for instance.

“What has President Ramaphosa put on table as part of the promised new dawn? Most of his appointments were in line with anti-corruption – skilled people with a commitment to the Constitution,” said Madonsela.

“He has also provided a certain level of policy consistency, including on the issue of land, and that will be a way to fast-track the land issue. Expropriation without compensation will be just a part of the package, not the while.”

She said that, in order to be able to deliver on the promise of a new dawn, the country cannot merely rely on Ramaphosa. Everyone has to work together – in the memory of Madiba – to create a country that belongs to all and the Constitution as the North Star.

“The pressing imperative of our economy is to create inclusive, sustainable growth,” she said. 

“So, the big issue of dealing with corruption, including state capture, remains, while the environment and creating decent work are important too in order to create the new dawn.”