Threats to the Public Protector

by Dave Steward (Staff)
Posted 8 July 2011


The F W de Klerk Foundation is deeply concerned by reports that appeared in the media on 6 July that Adv Thuli Madonsela, the Public Protector, was about to be arrested on fraud charges. Ministers and senior officials immediately denied the reports. The Minister of Justice, Mr Jeff Radebe, said that an internal investigation in 2007 relating to contracts that Madonsela’s company, Waweth Resources CC, had with the Department of Justice, had found that she had not violated any laws.  Radebe denied that the DOJ had instituted any proceedings against her.  

The Minister of Police, Nathi Mthethwa, referred to the reports as ‘malicious lies’.  He and police commissioner Bheki Cele claimed that they were not aware of the investigation or of the pending arrest.  However, on 8 July the Star published an internal SAPS document dated 1 April relating to an official police investigation into the Public Protector, apparently in response to a case lodged at “ a Pretoria police station”.   The document was addressed to the head of commercial crime within the Directorate of Priority Crime Investigation (the Hawks).  It is thus clear that the SAPS were indeed investigating Madonsela - but there was no documentary proof that she was about to be arrested.

Suspicions were immediately raised that some unknown party was using the investigation to intimidate Adv Madonsela, because she is clearly intent on carrying out her duties  “without  fear, favour or prejudice” as required by the Constitution.  S. 182 of the Constitution gives the Public Protector the power 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”, “to report on that conduct” and “to take appropriate remedial action.”

This was a duty that her predecessor, Mr Lawrence Mushwana, manifestly failed to carry out when he was asked to investigate the so-called “oilgate scandal”.  Mushwana purported to investigate the matter, but concluded that because the ANC and Imvume were not state entities, it did not fall within his constitutional mandate to make findings on their activities.   On 1 June the Supreme Court of Appeals upheld a high court decision to set aside Mushwana’s report on the Oilgate saga and instructed  his successor, Adv Madonsela, to reinstitute the investigation.

 Adv Madonsela was appointed as the new Public Protector in October 2009.  She is viewed as being open, principled and one who performs her duties within the constitutional mandate.  In February, she found that national police commissioner General Bheki Cele was guilty of improper conduct and maladministration in respect of his role in a R500m lease for SAPS premises in the Sanlam Middestad Building in Pretoria . On 2 March the offices of the Public Protector were raided by crime intelligence officials - who were apparently not sanctioned to do so by the SAPS. The office of the Public Protector is also currently working on a final report - which has already been leaked  - on a billion rand lease deal for police headquarters in Durban.

The latest reports, coupled with the unauthorized police raid on the PP’s premises in March, may point to concerted efforts by unknown parties to intimidate Adv Madonsela and to prevent her from carrying out her duties in terms of the Constitution.   It is essential for our constitutional democracy that she should be able to do so - and it is accordingly reassuring that President Zuma has “reiterated the government’s commitment and support for the Office of the Public Protector.” 

The chilling reality is that if the Protection of Information Bill were now law, the journalists involved in informing the public of these disturbing developments could have been charged with serious offences and sentenced to long terms in prison.