‘Hope is restored in the constitutional dream’ – Thuli Madonsela

Adv. Thuli Madonsela. Picture: Mary-Ann Palmer
Adv. Thuli Madonsela. Picture: Mary-Ann Palmer

With the Constitutional Court’s unanimous and stinging judgment ringing in everyone’s ears, Advocate Thuli Madonsela sat down for what will most likely be one of her last major press conferences as Public Protector. 

“The Constitutional Court restored hope in the constitutional dream,” Madonsela said. 

Flanked by her deputy, advocate Kevin Malunga, and facing a wall of cameras at Public Protector House in Pretoria, Madonsela said that as a lawyer she would “cherish [the judgment] for the rest of her life.” 

This morning, Chief Justice Mogoeng Mogoeng delivered the court’s verdict that President Jacob Zuma’s failure to implement the findings of the Public Protector’s Nkandla report was “inconsistent with the Constitution”. 

Importantly, the court also confirmed that the Public Protector’s findings were not merely recommendations as the president’s previous legal team had suggested, saying in their judgment that: “If compliance ... was optional very few culprits would allow it to have any effect.” 

Madonsela said that as the verdict was read “you could hear a pin drop” in her office as her staff followed on TV – the silence only occasionally broken by “amandla” fist pumps and a few tears. 

The unanimous judgment of the 11 justices, read by Mogoeng, was glowing in its praise of Madonsela’s office. It called the Public Protector “an embodiment of a biblical David”, “one of the most invaluable constitutional gifts to our nation” and “one of the true crusaders and champions of anti-corruption and clean governance”. 

As quotes from the judgment were read back to her, Madonsela struggled to suppress a smile. 

To have the powers of her office confirmed by the highest court in the country just months before her seven-year term came to an end was “better late than never”. 

“The Public Protector as a person comes and goes. The Public Protector as an institution never leaves,” she said. 

Madonsela is constitutionally obliged to step down on October 19. 

Ironically, the urgent job of selecting a new Public Protector now falls into the hands of the two parties most heavily slated in the court’s judgment – the president and Parliament. 

In terms of the Public Protector Act, Parliament must appoint a committee to scrutinise all applicants for the job of Public Protector and make a recommendation to Parliament. A 60% vote is needed to confirm the candidate. Finally, Parliament’s recommendation will be passed to Zuma, who must decide whether to approve or reject the future Public Protector. 

Both in the committee and in Parliament the ANC would hold a significant majority. 

Asked whether there was a risk that the Constitutional Court’s damning judgment would encourage Parliament and the president to reassert their authority by picking a tame candidate, Madonsela said: “There would be no point in the government appointing a Public Protector who would lead the government towards a cliff ... To wish to have a Public Protector who tells you lies is to have an enemy who tells you they are a friend.” 

The job of the Public Protector is to see the government’s blind spots, she added. 

Malunga, who is the deputy Public Protector, sat next to Madonsela. Asked whether he would put his name forward as a candidate, Malunga said: “I get asked this question every day, three times a day, by security guards, cleaners, MDs – I think because they are genuinely concerned about the future of this institution.” 

Malunga added that “when that bridge comes I’ll consider it”. 

He also said that if a better candidate was chosen he would gladly support that candidate but that he would be “the first to leave” if an unsuitable candidate was selected. 

Opposition parties immediately called for the president to resign. Following the judgment, the Democratic Alliance immediately wrote to speaker of Parliament Baleka Mbete to call for a notice of motion to launch impeachment proceedings in terms of section 89(1)(a) of the Constitution.

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