Officially, South Africa’s ombudsman, called the public protector, is mandated by the Constitution to strengthen constitutional democracy by investigating and redressing improper and prejudicial conduct, maladministration and abuse of power in state affairs.

Although appointed by the president on a recommendation from parliament, the public protector answers only to the Constitution and the law.

In the public eye, the current incumbent of that office Advocate Thuli Madonsela – a human rights and constitutional lawyer, equality expert and policy specialist – is seen as a fearless upholder of that mandate, one who is willing to take on even parliament and the president of the country.

Relatively unknown to most South Africans before being appointed as the country’s third public protector in October 2009, Madonsela quickly gained public prominence due to a number of high-profile cases investigated by her office.

Among these were President Jacob Zuma’s failure to declare his personal assets timeously to Parliament; a probe into tenders awarded to a company allegedly linked to ANC Youth League president Julius Malema; and a probe into a contract awarded by Transnet to a company of which General Siphiwe Nyanda, Minister of Communications, was said to be a major shareholder.

While largely exonerating Nyanda of wrongdoing, Madonsela did find that he had breached the Executive Ethics Code by publicly supporting Siyabonga Gama before Transnet fired him for signing the contract in question.

This invited a scathing attack from the ANC Youth League, which accused Madonsela of repeating what opposition parties had been saying rather than protecting the public.

Her office has recently ruffled the feathers of the Department of Home Affairs spokesperson, Ronnie Mamoepa. Yet, in contrast, the impartiality and independence of her office was recently favourably remarked upon in an article by none other than Jeremy Cronin, deputy general-secretary of the South African Communist Party.

But such is the nature of the job – you win some friends, and you lose some.

Madonsela, a graduate of the University of Swaziland and Wits University, grew up in a working class family in Johannesburg, her father working as an electrician’s assistant and her mother as a domestic worker. This did not undermine the entrepreneurial spirit of either. Her father pioneered the long-distance taxi business by driving people to and from Swaziland over weekends, while her mother later ran an informal business, selling snacks to local schools.

With her parents’ firm belief in the liberation that comes from a good education, Madonsela, her siblings and nephews were all sent off to school in Swaziland for a better education than apartheid South Africa could give them.

Scholarships later took her to university.

In the early 1980s, she found herself drawn into the liberation struggle. She briefly taught science and biology at schools in Swaziland and Soweto, and later lectured part-time at the Wits University Law School.

Madonsela became involved in the trade union movement following a chance meeting with union organisers at “Ma Sisulu’s place in Dube, Soweto, who were guests of Zwelakhe Sisulu,” she says.

She subsequently became involved, together with eminent trade unionists of the time such as Cyril Ramaphosa and Malachia Ndou, in the unity talks that gave birth to the Congress of South African Trade Unions.

Madonsela says that as an active supporter of the women’s movement, she continues to provide support to the South African Women Lawyers’ Association and the Progressive Women’s Movement.

Furthermore, she was involved in the drafting of South Africa’s Constitution, and was extensively involved in legislative activities to transform the country’s legal system.

She is a prolific writer and has been involved in international human rights and gender equality dialogues.

On top of all of this, Madonsela finds time to be in a committed relationship and a mother to “two incredible children”, Mbusowabantu “Wantu” (21) and Wenzile Una (19), who are both at university.

How would you define the essence of your work and responsibilities as public protector?

The essence of the public protector’s work and responsibility is to help the people of South Africa and Parliament to hold the state accountable.

The accountability in question starts with righting isolated administrative wrongs committed against each person or group of persons, to ensuring good governance and adherence to the rule of law in the exercise of state power and delivery of services.

The Constitution drafters specifically gave the public protector the power to take appropriate remedial action, and my team and I are exploring various ways to give meaning to this. Otherwise, abandoning the courts in favour of the public protector as a faster and no-cost option becomes meaningless if redress is not forthcoming despite an adverse decision against an organ of state.

The public protector, however, is a modern hybrid ombudsman, with more mandate areas and powers than the classical ombudsman. The public protector, who is ranked at the level of a judge of the Supreme Court of Appeal – and with exactly the same independent provisions as the courts – has extensive powers to investigate and correct any improper conduct by the state in all its permutations, under the Public Protector Act.

Do you require a tough, fearless streak to do this work properly?

All you need is integrity and to ensure that your decisions are anchored in fact and law. Independence and impartiality are indispensable.

A team with very sharp teeth is part of the deal.

It seems from your resumé that you were, or are, a member of the ANC. If so, does this not constitute a conflict of interest in your current position?

I am not a member of any political party. When I was appointed as public protector, I was not a member of the ANC or any party. I was, however, a member of the ANC until around 2007 whereupon I decided, for professional reasons, not to renew my membership.

Can a public protector be a member of a political party and still do his/her job without some subjective bias getting in the way?

The public protector should not be a member of any political party.

Firstly, any perception of bias should be avoided.

Secondly, the public protector should not be put in a position where party seniority considerations are at play, even in a remote manner.

If we look at recent and current developments in the political life of South Africa, there seem to be a number of developments that have potentially adverse consequences for the citizens of this country, the substance of our democracy, the Constitution and more, if these developments are allowed to develop in the direction that many fear they may go. One can think here of allegations that the independence of the judiciary and the media are under threat. There are allegations of widespread corruption in government. Political intolerance seems to be rising. What is your take on these issues and developments? What does it bode for South Africa? Will some of these developments not possibly make state and government conduct less accountable to the people of South Africa which, if I understand correctly, is what your office should be protecting?

Part of my impartiality requires that I avoid political commentary. All I can say is that it is important that the courts and institutions supporting constitutional democracy remain strong, independent and impartial.

A free media that consistently acts with integrity is a crucial part of a strong constitutional democracy, the rule of law, and accountable government.

The success of the public protector as an ombudsman institution also depends on these pillars of constitutional democracy.

You recently said it was time to move on from the arms deal. But has that issue been satisfactorily scrutinised, exposed and dealt with?

I have not come across new material that will justify another arms deal investigation. However, having said that, a final parliamentary dialogue on this matter and lessons learnt particularly around the developmental risks of engaging on haphazard and uncapped procurement, may be useful.

Billions of rands are going down the drain due to poor procurement management that fails to project costs appropriately and, in some instances, to weigh intended procurement measures against our more pressing needs as a developmental state. That should not necessarily involve the public protector.

You reportedly said that you had found the top complaints received by your office were about local government, home affairs, grants, the government pension fund, the unemployment insurance fund and workers’ compensation. Are you dealing with these? What can one expect?

Most of the day-to-day cases with which the public protector deals relate to bread-and-butter issues such as delayed pensions, or delayed or withdrawn grants. Local government service delivery and billing systems are also on top of the daily list.

The issuing of identity documents in time for people to claim their human dignity and rightful place in society is another issue we deal with on a day-to-day basis.

Unknown to many is service failure in the justice system, which includes failure to investigate, failure to prosecute, undue delays, particularly with appeals and the disappearance of court records. Housing service delivery delays, including graft in the award of reconstruction and development programme houses is a daily concern as well.

On the issue of corruption, this is another area where at least every other day, there is a complaint regarding maladministration, abuse of power or specific violation of the Prevention and Combating of Corrupt Activities Act. We also get a few protected disclosures (whistle-blowing) in this regard.

You recently appeared to have clashed somewhat with Parliament over the issue of President Zuma not timeously declaring his assets or gifts. Can you elaborate on that? Has Parliament co-operated fully, has it acted on your recommendations? It was reported that you found President Zuma guilty of violating the Executive Code of Ethics. Did you come into conflict with the Presidency over that? According to news reports, you were frustrated by the government’s failure to act on the reports from your office. What is the latest on this and all the related issues?

As far as I am concerned, Parliament treated my institution with the co-operation, support and respect envisaged in section 181 (3) of

the Constitution.

When the deadline was going to be exceeded, the chairpersons of the Ethics Committee wrote to me about the delay and undertook to advise on progress as soon as Cabinet had done the preliminary work.

It is also important to note that the public protector’s role in supporting and strengthening democracy primarily depends on Parliament integrating the public protector’s reports in its oversight work. The chairperson of the Portfolio Committee on Justice and Constitutional Development has undertaken to ensure this happens.

You have called on communities to come to your office with their delivery complaints rather than to resort to protest and violence. Any success so far?

Since my call on communities to bring service delivery failures to my office for resolution, many communities have done so.

One of our success stories is Dipaleseng (Balfour), where my team has combined the investigation into service and administrative failures with a systemic intervention which ensures that service and administrative failures are corrected as the investigation proceeds.

The municipality has been assisted to develop a plan of action to address the internal governance, administrative and systems failures that led to the service failures, which brought about violent protests.

We plan to do the same in Dimbaza, Eastern Cape and a few other identified organs of state.

Another issue involving you that recently made headlines is your clash with Home Affairs and Ronnie Mamoepa over the problems with identity documents. What are the facts in your view, and what is the latest on that?

I personally did not clash with Mr Mamoepa.

My spokesperson called Mr Mamoepa’s bluff when he insisted on peddling untruths about my unavailability to meet the Minister of Home Affairs, whereas it had been myself who had, until then, been seeking a meeting with her.

I value the work that Home Affairs is doing in trying to address a systemic problem with IDs, which predates the leadership of the current minister. However, I stand by the view that we need a time-bound solution that transcends numbers and responds to the human rights needs of each complainant.

Indeed, on the matters that have come to my office, the Department of Home Affairs always delivers prompt remedial action for which my team and I are grateful. Just the other day, we collected a man at the Pretoria News offices at their request, who had walked and hitch-hiked from Cape Town after five years of hitting a brick wall with the Department of Home Affairs.

Within days, he had an ID and came to thank my office in person. A picture of this smiling citizen, with the investigator who was assigned to help, is on our website.

But should it take five years and the intervention of the public protector to get this fundamental human defining service – the right to an identity?

What other interesting cases are you working on? What can the public expect to hear about in the near future?

The workload of the office is primarily taken up by service failures. However, there is a substantial amount of work of conduct failure that falls within the realm of executive and public sector ethics.

There are also a few cases of whistle-blowing.

Many of the conduct failure or ethics investigations involve ministers, premiers, MECs and a few high-ranking civil servants.

Stef Terblanche