Statement by Public Protector Adv. Thuli Madonsela during the Media Briefing at Public Protector House on 28 August 2014

Programme Director

Members of the media

Fellow South Africans

Greetings on behalf of the Public Protector SA Team! Happy Women's Month to all the women of South Africa here and beyond!

Thank you for the opportunity to address you.

The late Kenyan Nobel Peace Laureate Wangari Maathai once said: "There are opportunities even in the most difficult moment."

As the Public Protector Team, we have called you to join us in conversation today because we believe that we are going through a difficult moment regarding the role of the office I head and that there are opportunities for finding common ground.

The purpose of my engagement with you as the country's Public Protector is to:

1. Clarify our understanding of the architecture of our country's constitutional democracy and the place of the Public Protector in such architecture;

2. Explain our standard investigation process from beginning to following up on remedial action

3. Briefly take you through the history of our fruitful engagement with the Presidency on remedial action over the years

4. Request external actors to respect and support internal processes, including interaction between various organs of state

No problem is insurmountable when there is a will to solve it. The starting point though is to acknowledge that there is a problem. The second step is to accept that we cannot hope to get different result from our actions if our actions remain unchanged.

I hope you will agree with me that the leaking and publishing of confidential communication between a constitutional institution and the Head of State is a problem.

Being advised that a senior politician leaked the document to the media makes this an even bigger problem.

In my respectful view, the hysteria that has followed not only compounds the problem but is also symptomatic of more underlying problems, particularly regarding issues of trust, common decency and rational discourse.

I'm particularly concerned over statements attributed to certain individuals outside the state that seem to suggest that my office ought to be respected (and presumably, its dignity upheld) and be supported, provided that I, as Public Protector, "behave" in the manner they consider appropriate and interpret my mandate the way they claim to understand it.

I am comforted by the knowledge that the problems we have, if you agree that we do have problems, neither represent a crises nor are they a novelty.

The first Public Protector of the democratic order, Advocate Baqwa, had to issue a media release on 10 October 1999, following what he termed "Intemperance in the house bodes ill for the rule of law" following his investigation of alleged improper conduct against former Mpumalanga Premier, Ndaweni Mahlangu.

We are far from the crises that ensued when President Kruger termed judicial scrutiny, which was still a novelty in this part of thy world then, the principle of the devil. (Afrikaans word)

Although a reality of our constitutional architecture, administrative scrutiny by a Public Protector or Ombudsman, is a relatively new phenomenon. It is not surprising that we should stumble a bit as we try to make sense of the words we put in our Constitution.

What are those words?

The Public Protector is established under section 181 as an independent institution to support and strengthen constitutional democracy and given power under section 182 using the following wording:

"182. Functions of Public Protector

182(1) The Public Protector has the power, as regulated by national legislation -

(a) to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;
(b) to report on that conduct; and
(c) to take appropriate remedial action.

182(2) The Public Protector has the additional powers and functions prescribed by national legislation.

182(3) The Public Protector may not investigate court decisions.

182(4) The Public Protector must be accessible to all persons and communities.

182(5) Any report issued by the Public Protector must be open to the public unless exceptional circumstances, to be determined in terms of national legislation, require that a report be kept confidential."

There are a few that would like to have us believe that the Public Protector's powers as enshrined in Section 182 of the Constitution are limited to making recommendations and leaving the rest to the parliamentary process and/or to chance.

I must confess that I am not one of those and that the view shared by the Public Protector Team after years of scrutinizing the Constitutional wording and comparing with the wording for fellow constitutional bodies and Ombudsman offices globally, is that the choice of the words "take appropriate remedial action" by the framers of our Constitution was not a mistake.

I must say my team and I draw comfort in noting that the view we take is consistent with that expressed in a document title "Ready to Govern" submitted by the African National Congress to the Multi-Party Talks that gave birth to constitutional democracy.

On what eventually became the Public Protector, the document says:

"The ANC proposes that a full-time independent office of the Ombud should be created, with wide powers to investigate complaints against members of the public service and other holders of public office and to investigate allegations of corruption, abuse of their powers, rudeness and maladministration. The Ombud shall have power to provide adequate remedies. He shall be appointed by and answerable to parliament."

Why are we stumbling then? We are dealing with transforming the state and growing into the notion of supervised exercise of public power characterized by various checks and balances. The difficult part about administrative scrutiny is that it introduces horizontal accountability. 

Though we are far from Paul Kruger's labeling of judicial scrutiny as a "devils principle", we must accept that many among us are still grappling with the meaning of the supremacy of the constitution.

The good thing is that we are not walking through a forest without a trail; we've been traveling the constitutional democracy road for 20 years. One of South Africa's pioneers on this road, the late President Nelson Mandela and his peers left several trails for us. One of those trails are the following words:

"Even the most benevolent of governments are made up of people with all the propensities for human failings. The rule of law as we understand it consists in the set of conventions and arrangements that ensure that it is not left to the whims of individual rulers to decide on what is good for the populace. The administrative conduct of government and authorities are subject to scrutiny of independent organs. This is an essential element of good governance that we have sought to have built into our new constitutional order. An essential part of that constitutional architecture is those state institutions supporting constitutional democracy. Amongst those are the Public Protector, the Human Rights Commission, the Auditor General, the Independent Electoral Commission, the Commission on Gender Equality, the Constitutional Court and others...

"It was to me never reason for irritation but rather a source of comfort when these bodies were asked to adjudicate on actions of my government and office and judged against it. One of the first judgments of our Constitutional Court, for example, found that I, as President, administratively acted in a manner they would not condone. From that judgment my government and I drew reassurance that the ordinary citizens of our country would be protected against abuse, no matter from which quarters it would emanate. Similarly, the Public Protector [Ombudsman] had on more than one occasion been required to adjudicate in such matters." (Mandela, 2000)

My reading of the late President Mandela's statement leaves me with the distinct impression that the administrative and judicial oversight bodies will not always see eye to eye with politicians. In fact the reason these institutions exist is to add value by bringing to the attention of his government and politicians matters that may be unconstitutional or at odds with the proper conduct envisaged by the Constitution from government or politicians.

My engagement with President Zuma in the last five years have been along a similar appreciation of my office's role and the value it is adding to him and his government. At my first official meeting with him, President Zuma stressed to me the importance of acting without fear or favour. When I investigated a matter involving his conduct shortly thereafter, his office assisted mine and on conclusion of the investigation and my office following up on remedial action, there never was drama. In fact there never has been drama or lack of assistance from the Presidency on any investigation whenever, my office or myself engaged that office.

The current drama has arisen in the wake of a confidential letter written to the President as the head of the executive requesting clarity on matters outlined in the letter. The letter was leaked and published by the Sunday Times and the City Press. I was advised confidentially and reliably that a politician leaked it. Both the leaking and the publishing were improper as there was no public interest in such act. If anything the actions have had the opposite of public interest by adding to a climate of mistrust and unhealthy communication.

In my considered view both the leaking and the reaction have amounted to interference in the operations of my office but generally interfered with state affairs in a manner that if sustained will create a dysfunctional state.

Had the letter not been leaked or commented on by actors external to the state, the President would have gracefully considered my letter as he has always done and responded in a manner deemed appropriate. What we have now are directives of all manner yet the head of state may even have seen the letter as yet let alone apply his mind. To me that is a problem we must address urgently.

Those objecting to the letter not addressed to them say I had no authority to do so and in so doing I'm undermining Parliament. The truth is my office always follows up on remedial action and has done so with all organs of state, including the Presidency, without drama, even when similar matters were being attended to in Parliament.

Our constitutional democracy is built with the idea of complementary oversight in mind. When we get more or appropriate details on work we have done as the Public Protector we make things easier rather than more difficult for Parliament.

Even if Parliament were not happy, the hysteria and mudslinging is not the way to go. We have a great democracy with mechanisms to solve all problems within the state without external interference. The Public Protector is accountable to the National Assembly and the Speaker or Parliament could have called me anytime to account for my actions if such actions were viewed by Parliament as threatening or undermining its process. I would have explained myself and we would have found a way forward in line with the architecture of our constitutional democracy which includes the supremacy of the Constitution and the rule of law with no person or institution being above the law.

That process would have been sober and evidence based. Untruths such as me being among others, a ghost in two places (in Parliament and having a meeting with Minister Muthambi in my office) at the same time would have had no place.

What do we do now?

The noise is not from government or Parliament as an institution.

We currently are engaging government in a dialogue on "Joining Hands in Partnership Against Maladministration and Corruption" as our focus during the 2014 Stakeholder Dialogue.

We had a successful launch in Gauteng where the common message was that working together is not only in the people's interests but also in the interest of our co-dependent institutions as our work complements each other.

We also have a history of cooperation with most of the organs of state. This includes, agreement to implement remedial action even before we release a report as the Department of Justice and Constitutional Development and Correctional Services have done. Our cooperation increasingly includes having MOUs such as the historical one we signed with the government of KwaZulu-Natal a year ago.

My request is for stakeholders outside the state to respect the boundries between public and private operations including the separation of state and party.

From my side I will request a quiet meeting with the President to elicit his views and concerns with a view to a way forward that enables my office to continue to be a resource to his government and the people of South Africa in rooting out maladministration and other forms of improper conduct in state affairs.

I will also request an engagement with the Presiding Officers with a view to improving ways of working together in pursuit of the South African dream of a state that acts with accountability, integrity and responsiveness at all times and progressively delivers on an improved quality of life for all and freed potential of all persons. I am certain that such a cooperative approach is in line with the vision behind the National Development Plan, particularly chapter 14 thereof, which requires the strengthening of institutions such as the Public Protector.

It is also in line with article 15 of the AU Declaration on Democracy, governance and elections, which commits states to strengthen institutions such as the Public Protector in support of democracy, good governance and development in the continent.

The cooperative approach is also in line with the seamless governance underpinnings of Chapter 3 of the Constitution on cooperative governance and section 181(3) of the Constitution.

I have no doubt that as sons and daughters of this nation we are equal to the task. We have overcome worse situations.

Thank you.

Adv. Thuli Madonsela

Public Protector of South Africa

Issued by the Office of the Public Protector, August 28 2014

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