What the judges said
“We feel Thuli Mandonsela is a woman of substance who has inspired many people across Africa with her stand for the rule of law and against corruption. In seven years of hard work, she has spoken truth to power and helped keep the people running her country accountable. A difficult job she carried out with professionalism and integrity.”
Her polite, welcoming, voice would make anyone feel at home. It is strange to see Thuli Madonsela – the towering advocate woman who has taken flak from politicians for years – at home, relaxed and flanked by her family. She ushers me into the lounge. We sit next to an open patio door, facing a cluster of colorful trees, with a welcome breeze easing this sweltering summer’s day. Every bit of furniture matches her unpretentious nature. African paintings on the walls; each ornament holds a story about her travels across the continent.
She looks good for a person who has just left office, in her own words, followed by missiles. Her biggest case so far has caused ructions – the so-called state capture report. She was investigating allegations made by South Africa’s Deputy Finance Minister Mcebisi Jonas that he was a offered the job of Finance Minister by the billionaire Gupta family that has opened a can of worms.
The offer came, it is alleged, just before President Jacob Zuma fired the then Finance Minister Nhlanhla Nene in December 2015. When Jonas blew the whistle, former member of parliament Vytjie Mentor also alleged she was offered a cabinet post by brothers Ajay, Atul and Rajesh Gupta. The family has businesses, from coal mines to media companies, and were in partnership with President Zuma’s son. Former Government Communications and Information Systems head Themba Maseko also claimed the family unsuccessfully tried to bully him to put government advertising to their newspaper.
This report was one of the last acts in Madonsela’s seven turbulent years of speaking truth to power that took nerves of steel.
Her office, in the last days, was like a house of madness, she says. There were complaints to be investigated, last-minute interviews and many loose ends from multiple investigations.
On the very last day, she and her team worked through the night in an atmosphere leavened by banter and jokes.
“It was exhilarating, as a result I never really had the opportunity to feel sad about seeing my office for the last time because there was so much adrenaline, so much to be done and it was all done,” she says.
“Then there were curve balls of having being either sued or spending time with the lawyers. On the outside I was pretty calm but on the inside I would be thinking I have three hours to complete this document but these other things were coming, so I did feel some of the pressure. There was a bit of noise on the outside but the team that I worked closely with also stayed calm. I think the only time I saw some cracks was when we were told the president has lodged an application for an interdict and they thought it was the end of the road. I had anticipated these difficulties with some of the seniors, so when the younger ones got panicky about life overtaking the good work done, we didn’t panic. We told them to calm down and continue with the report as if they haven’t heard any news.”
Zuma had applied for a court interdict to stop the report’s release, saying he wasn’t given enough chance to respond. He also accused Madonsela of saying the report was not final, implying he was misled. Zuma withdrew the court challenge on the day of the hearing.
“I’ve never said it was not a final report. All in writing, I have always promised to issue two reports. Phase one would cover whatever we knew then and what should be done to fix it. It was going to look at ministerial appointments, Mentor and Jonas’ allegations. It would look at the president’s liability because of the 30-day requirement. Phase two would be on the Catholic Bishop’s request to look into Gupta-related companies and all licenses and related matter,” explains Madonsela
Madonsela’s report has left a trail of tears and paper leading to murky business dealings that the Gupta family denies.
“I recommended a commission of enquiry because this investigation cuts across ministries, the legislator, the executive and go into state-owned enterprises, it is bigger than the arms deal (South Africa’s arms procurement scandal) and if you’re going to do an investigation like that you obviously need a commission of enquiry.”
Madonsela says she doesn’t understand why the report was being challenged and also “got a sense that if the president wanted this matter to be investigated he would have long done so.”
“This gives a perception that is not in his favor because if somebody makes this allegation about his son and this person is a member of the cabinet, a normal person who has nothing to hide would look into it. That’s a question that people raise which shouldn’t be raised about the president,” she adds.
“We asked him a simple question like why did you fire Mr Nene?”
The president chose not to answer the question, Madonsela says.
Madonsela knows how it feels to field questions about a son. Her son Mbusowabantu took her official car while she was asleep, in 2012, and had an accident.
“It was very awkward because for me, I’ve been asked very difficult questions too, I couldn’t give a different answer to journalist. The issue about my son, I have given a consistent answer whether you’re the media or parliament. I was asked by parliament and I never even got a lawyer to answer those questions, so I don’t understand.”
It’s surprising that this woman, who has worked where few dare to tread, has regrets. She feels she should have encouraged someone to sue the government for depriving her office of resources. Organs of state are compelled by section 181 of the constitution to equip institutions like hers. Madonsela’s office didn’t have electronic data capturing.
“You have to go through the whole system manually to find out where that matter is. You’re also unable spot cases that aren’t moving. I think we should have stood up, it is threatening the functionality of that office,” bemoans Madonsela.
Her biggest regret, she says, was also leaving remuneration problems to the administration. Staff were unhappy with a heavy work and light salaries. Law firms handle four major cases a year while Mandonsela’s staff handled more than 50.
Madonsela says this means low morale, contrary to her successor Busisiwe Mkhwebane’s claim, before Parliament, that hinted at Madonsela’s management style.
“I wrote in the report that staff morale was a problem. I had explained that the main problem with staff morale was finances. People are getting too many cases and it is documented, there are memos at my desk all the time,” Madonsela explains.
“In other words, had it been me I would have explained to them, provided I have evidence. I would have said here is a memo, the provincial managers have taken us to court on some of those issues. She had to say she will improve staff morale. She can’t improve staff morale without being given money.”
Parliament invited Madonsela for her last appearance, on October 12, but this was postponed to October 19. This meant Mkhwebane would sit in parliament to present the 2015/16 Annual Report after a mere six days in office.
“I remember I was with the team when we got the notice. We laughed and said nothing here is surprising. We still wanted to find out why it was postponed, but no answer was given. For me it was about leaving graciously but I think it created a clumsy transition between me and my successor. She now had to find herself presenting a report that was not hers which required prior preparation for her to defend herself.”
She also feels there should have been more quiet conversations with the government around values and processes. Institutions with more or less similar functions of the public protector spend their time doing a lot of education, she says, to the executive around the laws they have passed. Her clashes with government ended up being about processes and powers, but at the core of the disputes was the enforcement of values.
“There’s a common narrative about wrong and right. Take Nkandla [the president’s homestead that received irregular non-security upgrades], it was always about what was the ethical standard that President Zuma should have complied with. What was the responsibility of the president?”
“We’re back to the same problem again with state capture. The essence of it was what was the responsibility of the president of this country when one of his own trusted deputy ministers says I’ve been offered a bribe to take the job of my colleague and pass decisions that favor the person that is offering me a bribe. If you’re a president of the country isn’t it your job to just find out if there this is happening since the person who is saying this is implicating your friend and your child or somebody you call a friend publicly,” says Madonsela.
“It’s just an issue about ethics. Themba Maseko accuses you publicly as the president of the country that you asked him to help those people, don’t say I never did that. Shouldn’t you say I have instituted a commission of enquiry to find out why this young fellow is lying about me.”
“These people may well be lying and if they are lying they should be called to order but you need a process that checks out whether or not they telling the truth. As long as nothing is done about it you will always have this question mark. It is creating a dysfunctional executive, it’s creating fractured relationships but it’s also saying to the world there are improper influences in the state of South Africa but it may well be not true.”
These are conversations she believes would have helped cabinet with its responsibilities as stipulated in the Executive Members Ethic Act under section 195 and 237 of the constitution. Her office was inundated with requests to investigate cases she would rather not, like state capture. There were many reasons. Hands were full, she was on her way out, cases should be dealt with on last in last out basis but this case was brought under the Executive Members Ethics Act. When a case is brought in through this Act it compels the Public Protector to investigate. According to this law, cases are also supposed to be completed in 30 days, which also left her with no time.
Madonsela had to make tough choices in standing up for the truth that won her the admiration of many Africans and won her the title of FORBES AFRICA’s 2016 Person of the Year – a fitting send off for a fearless woman who never backed down even in the face of death threats.
“My children are relieved. My brother is just relieved that I made it out alive. That was his message the day I finished on the 14th, saying “sisi siyabonga ukuthi labantu abaku bulalanga (Sister, we are grateful these people didn’t kill you). I hope we keep it that way because with the state capture report, the missiles are following me. I’m done, this is just revenge, I can’t harm them in any way whatsoever,” she laughs.
Many people want to hear from this elegant and softly-spoken daughter of a domestic worker and taxi driver; she has filled her diary until the end of the year. Thereafter she heads off for either Harvard, where she may study guidance and governance, or lecturing at Oxford University. It’ll be a lot quieter there.