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The day the powers of the public protector were salvaged

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Public Protector Thuli Madonsela
Picture: Tebogo Letsie
Public Protector Thuli Madonsela Picture: Tebogo Letsie

On Thursday, Public Protector Thuli Madonsela and her senior managers and investigators were in a jovial mood, taking pictures and celebrating the “salvaging” of her office’s powers.

They were celebrating the Supreme Court of Appeal’s rejection of SABC chief operating officer (COO) Hlaudi Motsoeneng’s appeal against his suspension.

Motsoeneng appealed a judgment by Western Cape High Court Judge Ashton Schippers following an application by the DA.

Last October, Schippers ruled that the findings of Madonsela, who recommended Motsoeneng’s suspension in her report on the SABC – which was released in February last year – were neither binding nor enforceable.

Madonsela and her staff had much to celebrate after the appeals court ruled on Thursday that the Public Protector’s findings and remedial action could not be ignored and should be implemented until a court set them aside.

The court also ruled that those who were unhappy with her findings could not embark on parallel investigations, a finding with massive implications for Madonsela’s report on the security upgrades to President Jacob Zuma’s Nkandla home.

Yesterday morning Madonsela told City Press: “There were lots of celebrations on Thursday. Quite a significant number of the managers and investigators ended up at the same place.

“I remember we discussed that we would never forget this day. We took pictures of the celebration.”

One day, she said, they would look at the pictures and think to themselves: “It was the day the powers of this office were salvaged.”

Madonsela said for the Public Protector’s office and staff, it was an important day for constitutional democracy.

“As we said in our statement, it was a victory for Gogo Dlamini [every ordinary South African citizen]. We welcome it; we are happy with the outcome. We think it is in line with the Constitution.

“We think it now opens the door for the office to continue doing its work, because the office was doing its work with the assumption that its decisions must be complied with.”

Madonsela said that in the months since Schippers’ ruling, there was a refrain from politicians and other detractors quoting the judgment. This meant they found themselves on the back foot. And for the first time, a number of state organs started ignoring her findings.

“We had never experienced a situation where after we had issued a report, a department did nothing, didn’t send us an implementation plan. We now had departments where nothing was done.

“All these flowed from the debate that we were an ombudsman and didn’t have powers.”

Attitudes were hardened, she said, and the number of cases the office was receiving began to decline.

“It is possible they have fallen because people think: ‘So-and-so went to the Public Protector and they didn’t get a remedy. Why should I suffer twice by subjecting myself to the Public Protector if government can just decide not to do anything about it?’”

Had the Supreme Court of Appeal not ruled in her favour, Madonsela said it would have resulted in many state bodies defying her office – and delegitimising it in the process.

On the appeals court ruling that parallel investigations could not be conducted by those who didn’t like her reports, Madonsela said that meant Police Minister Nkosinathi Nhleko’s own probe into the spending at Nkandla was invalid.

“It means it falls away; it means it has no status. It means you cannot have parallel processes. It was a waste of time and money.

“Everything that was done as part of that process was meaningless,” she said.

Madonsela wants to put all the enmity behind her and get on with the job. And she wants to rekindle a good working relationship with government.

“The storm is over. Let’s get back to what the vision behind this office was when it was conceived.

“Let us make it the real deal for people who want to hold the state accountable,” Madonsela said.

In her report on the SABC, titled “When good governance and ethics fail”, Madonsela found that Motsoeneng had lied about having a matric certificate and she recommended that he be replaced with a suitably qualified candidate.

She also found the increase in his annual salary – from R1.5m to R2.4m in a single year – was irregular. Motsoeneng earned R3.7 million, including bonuses, last year.

In a statement released on Friday, the SABC announced it had "instructed its lawyers to lodge an urgent appeal with the Constitutional Court in regard to the judgment laid down by the Supreme Court of Appeal yesterday".

“The judgment was in relation to the SABC’s COO, Mr Hlaudi Motsoeneng. The corporation will communicate further on this matter at an appropriate time,” the statement read.

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