Like nobody else Thuli Madonsela stands for the compliance of constitutional maxims in South Africa. In her seven years in the office as “public protector”, she repeatedly uncovered various abuses of powers by the political elite. We talked to the winner of this year’s German Africa Award.
Maria Kind und Layla Al-Zubaidi: Few South Africans knew your name or the office of the public protector when you were appointed in 2009. You elevated the office to what it is today, and many regard you a national hero. What made you so determined?
Thuli Madonsela: I think that the drive behind doing my work, as public protector and any other of my previous positions, has been to make a difference. To use the authority and space I have been afforded to make a difference in the lives of the people I serve. As public protector, my role was to receive and address public grievances regarding the exercise of state power and control over public resources. Together with my team, we tried to make sure that whatever grievance we received was investigated or conciliated to the best of our ability, and to deliver results to the people of South Africa according to the constitutional promise.
There is a saying that democratic institutions are only as strong and reliable as their incumbents. What, in your view, are the biggest challenges to public accountability in South Africa today?
The strongest impediment to public accountability is that we haven’t done enough to make sure that everyone knows their own responsibilities. Accountability is about correcting where you have made a mistake or you have crossed the line. But before there can be accountability, everyone must know that there is a line to be crossed, what it looks like, and where exactly it lies.
Let’s take the example of executive ethics. Earlier, there have been a lot of instances of misunderstanding between my institution and executives, which had a lot to do with different understandings regarding right and wrong. The challenge is therefore to make sure that serious effort is invested into education around ethics. I was speaking to an American professor recently. He explained to me that in the United States, before you are put in a position of authority – say as a legislator or a minister – you go through a training that makes you understand the Constitution, the laws that will govern you and the executive ethics code. In South Africa, officials only undergo a short orientation on the executive ethics code. It is not comprehensive enough for people to understand exactly what the dos and don’ts are.
You said that institutions are only as strong as the people in them. They are only as strong as the systems in those institutions and the quality and commitment of their leaders. But for me it’s not just about the leadership at the top. Institutions are only as strong as the people in them, from the bottom up to the top.
Institutions are also only as strong as the nation is. I believe that, over the past years, we have downplayed the importance of civic action. We thought that civic action was only important in apartheid times, because we were dealing with an imposed order. When democracy was established, we thought that now that we have a state deriving from the will of the people, there is no longer a need for civic action. This was a misunderstanding. Nelson Mandela himself said that even the most benevolent of governments have within them propensities for human failings. So it shouldn’t have been come as a surprise that we are currently dealing with human failings. For a long time, the people have been disconnected from politics, and it is only now that they are coming back. So that was a challenge for public accountability. But with people now being back on board, I think that public accountability will increase. People will directly hold the state accountable. They will not only use the public protector and other institutions created to support and strengthening constitutional democracy, but they will also use the courts and parliamentary processes.
Speaking of civic action, in the last year we have seen massive protests like #feesmustfall. What do you think has triggered these recent civic movements?
There are many factors. One of them is the millennials. Research shows that millennials are more forward thinking, visionary and egalitarian than the older generations. In South Africa, millennials look at the Constitution and notice the huge discrepancy between the constitutional promise and the reality they live in. Today, 22 years into democracy, there are still those left-behinds who can’t go to university even if they have good grades. There are not enough scholarships from the private sector, and government only provides funds for a limited certain number of students through the National Student Financial Aid Scheme. But even those that receive government financing can’t cover their living expenses.
Those students who are subjected to a life of indignity attend institutions together with the children of those who have benefited from the fruit of democracy. Millennials and others know that under apartheid most black people were poor. Even the ones that owned some property didn’t really live in such opulence that the disparity between the poorest and the richest black South Africans was obscene. The gap between whites and blacks, of course, was huge. But blacks and whites didn’t live together, so as a poor South African you didn’t have to stare prosperity in the face every day, whilst you were living an undignified life. Today at university, poor students are both confronted with the children of rich, or at least fairly affluent, black and white families. Now they can really see their poverty juxtaposed with obscene wealth and reality hits them. That creates resentment, especially in the context of an unfulfilled constitutional promise.
But these grievances are not limited to students. In the mining sector and the strikes leading up to the massacre of mine workers in Marikana in year 2012, the poor also started feeling the pain. The massive income gap between workers and CEOs has even increased over the past decades, and workers remain indignant. And again, they are confronted with obscene wealth. While some people have become rich, they see their own lives frozen in the past. Then they read in the press that part of the reason that their lives are frozen in the past is corruption. That some of the money that could be used for building schools, infrastructure, and university education, is being wasted on unnecessary contracts. Or that contracts, even when they are necessary, have inflated amounts. And that some individuals or companies are unduly being given state money. That again contributes to the resentment, to the feeling that their lives are not decent.
Coming back to your work as a public protector, your reports that dealt with the conduct of President Jacob Zuma stirred most media and public attention. Can you give other examples of your work that were significant but did not receive much attention?
A lot of the work that we did as the public protector in the last seven years didn’t receive much media attention. It mainly involved resolving grievances of ordinary people around personal justice issues. Somebody was dismissed for having blown the whistle. Somebody was not paid his pension because his records got lost after the fall of apartheid. People battling with their municipalities because basic services, such as social housing, are not being provided. Those are the kind of cases we dealt with on a daily basis.
One case that didn’t receive much attention, for example, was brought forward by a community in the Nala Municipality in Free State Province. Because of a dysfunctional piping system, the community was flooded with excrement. It complained that the contractors had been paid for work that had not been completed. We went there ourselves in order to investigate and found that a company had been contracted to install proper toilets where people previously had only used buckets. We discovered that the contracted company had either failed to connect the toilets to a piping and pumping system or installed the wrong equipment. We named our report “Pipes to Nowhere”.
Another case that should have received more attention was a report that we called “It Can’t Be Right” about Midvaal Municipality in Gauteng Province. When a citizen would owe the municipality money, some amounts as little as 3000 Rands [editor’s note: equivalent of 200 Euros], the municipality would foreclose on this person and force him to, for example, hand over his house in order to settle the debt. The municipality employed its own lawyer who had an auctioning company. He would be the one to push the foreclosure. His partner and co-owner of the firm would buy the property for a negligible amount and then instantly put the property on the open market for its true value. We of course recommended that this corruption must end, that the lawyer and his partner must be sacked, and the misappropriated property must be returned to the citizens.
A last case that I would like to mention concerned a 14-year-old rape victim who had her case postponed for the eighth time in eight years. Fortunately, the Sowetan newspaper picked it up and made a lot of noise, after which an NGO stepped in to assist the victim. Eventually, the matter was investigated and the gang rapists sent to prison. When the matter was brought to us, we had to investigate whether or not it was proper for the state to postpone this matter eight times. By the time the case came to trial, the life of this child had been severely damaged. She had dropped out of school, and she had physical problems as well as difficulty in coping with her life. We found that the justice system had wronged her. We not only provided a remedy to the complainant, but also a systemic remedy targeted at the deficiencies of the justice system. In other words, we wanted to make sure that it doesn’t happen again.
Thank you very much for this insight. It shows that there is so much more behind your work than what is portrayed in the media.
Those cases are actually the most important ones. The public protector was created in order to support and strengthen constitutional democracy. For us, supporting and strengthening constitutional democracy is about building trust in the system. Traditionally, democracy was about citizens engaging politically. But in South Africa, the political space has narrowed down. You will have to go through party committees, for example, and in a political meeting of 500 people, only ten can put up their hands and speak. So not everyone’s grievances can be addressed. Most of the talking and the decision-making is anyway done on the level of party elites.
Our constitution-makers had the foresight to create other levers of engagement. These ensure that our people never find themselves in a situation where they feel that they have to opt out of the system and resort to vigilantism – or “self-help”, as our chief justice refers to it. You could see some of this “self-help” in #feesmustfall and other instances. But it is still not rampant, because there are institutions such as the public protector so that people who haven’t been able to articulate their concerns through the political system or the expensive and sophisticated court system still find a possibility to engage.
At the moment, the South African public is digesting your “State of Capture” report, which details the collusion of decision-makers with powerful people in business. What do you think needs to be done to disentangle the web of money and politics?
There are people who are saying, let’s expand the state capture investigation and investigate every business relationship with government. My view is, no, let’s tackle this specific case. Because this one is not just about business people capturing the state. It is about the effect of the president advancing the business interests of his son and the business partners of his son. The point people are missing is that we do not only have to question if a family who originally comes from India, the Gupta family, has captured the state. It is actually about both the Zuma and the Gupta families. Are they, both of them, unduly influencing the issuing of state contracts, and are they unduly benefiting from them?
For me, this is not about a very wide state capture. It is about the name of the president and the office of the president. This is what our investigation is about: whether, at the level of the presidency, there has been an unhealthy combination of office and business interests. The president doesn’t own the companies that are implicated. But the approach of the investigation was that, if his son is benefiting, he indirectly benefits, too.
Restrictions on public servants doing business with government have already been put in place. But what about families of politicians doing business with government? Had I continued this investigation, I would have also made remittal recommendations around this issue. For me, this is even more toxic than the problem of public servants. State-owned enterprises in South Africa are an extension of the state. So if such an enterprise grants a tender to the president’s son, it is as if the president is signing that contract
We also have to look at donations to trusts. Through my involvement with the anti-corruption network Transparency International, I have found that a lot of the money from corruption flows into trusts, both overseas, offshore trusts and local trusts. The kickbacks will be paid to the trusts and then the trust will buy you property in Dubai. And you will never find the house in your name; the house will be owned by a trust. You need to lift the veil and look at who owns those trusts.
I was told that I should also should investigate business people who met with the president to request that he fire the finance minister [editor’s note: President Zuma removed Finance Minister Nhlanhla Musa Nene on 9 December 2015 and appointed back-bencher David (Des) van Rooyen, who was then removed after four days due to pressure exerted by business, the public, and from within the ANC]. For me, this is not state capture. I regard as state capture when something is happening nefariously overnight and nobody knows what has been plotted. When people lobby openly and say, “We don’t think you have done this right and want you to do this instead,” the president still has the right to respond, “I hear you, but I disagree with you.” You can’t claim that people lobbying government is state capture. When lobbying begins to involve payment, though, then it is clearly corruption: if, for example, during this meeting, business people had asked the president to remove the minister and appoint another one, and in return offered a payment to his or his son’s business.
In our investigation, the allegation is that the Zuma and Gupta families own businesses that are benefiting from ministers, who were appointed with the influence of the Guptas, through tenders. Board members of state-owned enterprises, who were appointed with the influence of the Guptas, gave preference to companies owned by the Zumas and Guptas. That is not proper and, as said, it compromises the ways state tenders are issued. It also creates an uneven playing field. The reason for fair tender processes is that, in the economy, there should be competition and the best should win the tenders. If the best, who have been in the market for a long time and delivered an excellent service, know that the outcome of the tender it is already decided because of political or family alliances, it will create problems.
A part of the investigation was therefore also to check whether it is true that state-owned enterprises have issued tenders to Zuma- and Gupta-owned companies that had no experience. Why did a particular company win the tender if it has only been created two months earlier? Why was it preferred over experienced companies that have been in the field forever? Older companies do not only have experience, they are also quite secure.
Some people then argue that the old companies are white monopoly capital, and that if you don’t allow for newcomers, the field will always be controlled by a few white companies. But a Zuma-Gupta alliance does not necessarily advance black economic empowerment, because it only advances the interest of the president’s family and the Gupta family. The Gupta family is not “black” by the definition of the Black Economic Empowerment Act of South Africa, which covers you only if you were a citizen of South Africa prior to April 27, 1994. At that time, the Guptas were not citizens of South Africa. You would only be advancing black economic empowerment through the Zuma part of that alliance. But you also can’t really advance black economic empowerment by advancing only one South African family.
Apart from the office of the public protector, what are the most important countervailing institutions in South Africa today?
The courts are the ultimate guardians of our Constitution and they have never failed to fulfil their responsibilities at all levels. Even if you may not like a particular decision, you can be sure that it is always well thought through and that it is professional. The auditor-general has done really excellent work. Treasury has become a major player, not only by creating the rules around financial management, including the management of state contracts or tenders, but also by enforcing them. The Human Rights Commission and the South African Revenue Services have played very critical roles. The Financial Intelligence Centre has become an important player in terms of helping to uncover money laundering, which is part of corruption and of other forms of organised crime. The Financial Intelligence Centre provides very valuable information about who left the country when, and who is receiving money from whom. Civil society and the media of course are extremely important organs of society and they are keeping democracy in South Africa alive and accountable.
Thank you so much for your time!
Thank you, it has been a pleasure.