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Protecting the people

17 October 2011 - By Camilla Bath

Thulisile Madonsela has been praised as a fearless corruption buster and a fierce protector of the public interest. She is both a careful observer of and an active participant in South Africa’s democracy. Madonsela has worn a myriad activist hats as a feminist, a human rights lawyer, a trade unionist and an equality expert. But arguably the most significant role she has played in this country to date is that of Public Protector: holding government to account and trying, in her words, to “exact justice for the underdog”.

Madonsela and her office are charged with defending South Africa’s constitutional democracy and upholding the ethics of the government they serve. As one of 11 technical experts who helped the Constitutional Assembly to draft this country’s Constitution between 1994 and 1995, she is vehement in her defence of its principles: “I think what drives me is a sense of justice; I want to balance society to ensure that everyone gets a fair deal, no matter who they are.”

The reserved and demure 49-year-old is in a unique position: as one of the key people who helped forge the Constitution, she is now mandated with defending it, sometimes from abuses by those she once worked with in government. “Being an oversight agency forces you to take a step back and look at things from the outside. We are not in the executive, but there is this expectation from government that ‘you are one of us, and you will give us an advantage; you won’t treat us like the common person’, which is very strange to me.”

In her formative years, Madonsela lived in Soweto and Swaziland. She attended school in the tiny, landlocked country, away from much of the hardship and turbulence of apartheid. But she was by no means shielded from the realities of the political situation in South Africa: “For every holiday I was at home in Soweto, so around the June 16th uprising [in 1976] we were at home in April and in August. There was still the aftermath, with tanks all around Soweto and gatherings at Regina Mundi Church.

“If anything, I was sheltered from some of the coalface of apartheid. We did have the experience of police knocking on our door and arresting my parents, but I think my experience was less harsh.

“Living in two worlds is an excellent opportunity because you become an observer as well as a participant. It was an advantage, I think.”

As a young woman, Madonsela began her university studies in Swaziland. She completed her LLB at the University of the Witwatersrand in 1991, the same year in which then President FW de Klerk called for the drafting of a new Constitution. “My life at �������ý was about enjoying the intellectual dialogues and talking to people in class and whom I passed in the corridors,” she says. “It was always fascinating, because those discussions eventually became the kinds of dialogues that informed the Bill of Rights and the Constitution itself.”

The mother of two was working at the Centre for Applied Legal Studies at �������ý when she was appointed as a technical expert by the ANC in 1994, tasked with examining South Africa’s nascent Constitution and advising the Constitutional Assembly on every clause. She turned down a prestigious Harvard University scholarship to be a part of the process, which she describes as a “once-in-a-lifetime opportunity”.

In 1995 Madonsela joined the Department of Justice, where she became centrally involved in drafting its first strategic plan and a raft of laws around issues close to her heart, including the Recognition of Customary Marriages Act, the Maintenance Act, the Domestic Violence Act and the Employment Equity Act.

Madonsela was also involved in the creation of South Africa’s equality courts, but says they haven’t grown in the ways she envisaged: “They’re a little watered down in their implementation. I think the specialisation has become a little diluted.”

By the time she left government in 2003, Madonsela had risen to the rank of Deputy Director-General. She started and managed her own policy research agency before becoming a full-time commissioner at the South African Law Reform Commission in 2009. “I spent two wonderful years there,” she says. “It was so special, having the opportunity to change laws.”

In 2009 Madonsela was approached by a women’s group, urging her to apply for the job of Public Protector. She soon realised that the position would come with some familiar territory: “Throughout my life as a lawyer, I always had people coming to my home with this or that problem. I felt a sense that I could do this with authority because throughout my life I had done similar work.”

Since taking office Madonsela has dealt with a slew of high-profile cases, most recently the widely publicised police headquarters saga, but it’s the individual stories that stick in her mind. “For me, the most significant case I’ve dealt with is the one case that nobody cares about,” she says, referring to the story of a young woman who had applied to the Department of Health for an internship. She was not given the position and did not get paid, but two years later she was asked to file a tax return. The department later claimed that two people with the same surname had applied for the internship and the salary had been paid to the wrong person.

“We didn’t buy the excuse that it was a mistake. We thought it was corruption,” says Madonsela. “We believed the department should pay her for the two years, because she’d lost out on money and an opportunity to be employed, and recoup that money from whoever was responsible for that maladministration.”

Madonsela believes that remedial action is key. “If something has been taken away from a complainant, it must be given back to them,” she explains. The Public Protector wants to see this type of concrete remedial action being taken on the findings of her reports into the multimillion-rand police headquarters leases in Pretoria and Durban: “What’s important for us is to draw government’s attention to the fact that there are serious problems around the management of government tenders in general, and specifically leasing in this case.

“We are sharpening our teeth to ensure our reports are not just a comment, but that remedial action is taken. We also want to prevent similar things from happening in the future.”

Madonsela believes there are people in government who are not happy with the transparency and remedial action her office is pushing for: “It’s almost as if they think we wake up and say, ‘we’re going to make your life difficult today’. And then they say, ‘well, if you’re going to make my life difficult, I’m going to make your life difficult’.”

The Public Protector was recently faced with media reports about her supposedly imminent arrest over fraud and corruption allegations. She is convinced the allegations were malicious: “I don’t know whether it was meant to intimidate me, or just impugn my character. I did get a sense that somebody was out to get me.

“It has made me paranoid,” she admits, but she says she won’t be intimidated. “I have to work with my team to tell the truth as we see it. The formula is the same: it doesn’t matter if we’re dealing with a clerk from Pofadder or the President. That’s the one reason why we can’t and won’t backtrack on what we’re doing.”

Madonsela says the process of compiling these latest reports has alerted her to the fact that corruption is becoming endemic in the country: “In some quarters I get the sense that people don’t understand that my office is not the problem. The problem is that our resources are not inexhaustible and if we don’t use them properly, they will soon run out.”

She warns that, while corruption is a global phenomenon, the problem on the African continent goes beyond mere graft. “I believe we need leaders who say that corruption is wrong, people who call it what it is and take decisive action. If corruption is not addressed, it mutates and becomes looting. That’s where you reach the tipping point and no matter how hard you fight, you won’t win.”

The Public Protector believes South Africa is not yet at that tipping point, but she wants to see stronger political will in the fight against corruption. It appears she may also have her own fight ahead of her though: against those who want her to turn a blind eye to abuses of power or flagrant greed.

“If people feel protected, or if there’s impunity, then they do what they want,” she says. It’s that attitude Madonsela is determined to eradicate in South Africa.