NEWS & ANALYSIS

The knives are out for Thuli Madonsela - Steve Swart

ACDP MP says appointment of Hlaudi Motsoeneng verged on contempt for the Public Protector (July 15)

Speech by ACDP MP Steve Swart on Budget Vote 23:  Justice and Constitutional Development, Parliament, July 15 2014

ACDP comes out in strong support of Public Protector and criticises SABC appointment of Hlaudi Motsoeneng

Chairperson,

The ACDP joins others in congratulating Minister Michael Masutha on his appointment as Minister as well as Honourable John Jeffery on his appointment as deputy minister. We look forward to building on the good relationship we have always had with you both.

Today we consider the budget vote of the department of justice and various entities that received funding from it, including the the office of the Public Protector, which I will focus on. We are considering approving an allocation of R218.158 million to the Public Protector's office.

Supreme Court of Appeal Justice Nugent had the following to say about this office,

"The Constitution upon which the nation is founded is a grave solemn promise to all its citizens. It includes a promise of representative and accountable government functioning within the framework of pockets of independence that are provided by various independent institutions. One of those independent institutions is the office of the Public Protector.

The office of the Public Protector is an important institution. It provides what will often be the last defence against bureaucratic oppression, and against corruption and malfeasance in public office that is capable of insidiously destroying the nation. If that institution falters, or finds itself undermined, the nation loses an indispensable guarantee."

The Public Protector plays a major role in strengthening constitutional democracy through preventing and combating maladministration in all its forms from indifference to corruption.

Organs of State must assist and protect Chapter 9 institutions, including the Public Protector, to ensure their independence , impartiality, dignity and effectiveness. No person may interfere with their functioning. They are accountable only to the National Assembly.

It is therefore of great concern when findings and recommendations of the Public Protector, Adv Thuli Madonsela, are so blatantly disregarded as occurred last week when the Communications Minister, Faith Muthambi, confirmed the appointment of the chief operating officer at the SABC, Mr Hlaudi Motsoeneng, on the recommendation of the board.

Let us be reminded that the Public Protector recommended that, "The board should take disciplinary action against Mr Motsoeneng for his dishonesty relating to the misrepresentation of his qualification, abuse of power and improper conduct in the appointments and salary increments of Ms Sully Motsweni (SABC head of compliance and acting group executive)." She did not recommend that he be appointed - on the contrary she recommended that he be disciplined!

Those findings stand unless they are taken on review to a court of law. The report was preceded by another damning report by the Special Investigating Unit on the SABC.  In our view it verges on contempt of the Public Protector to go ahead and appoint the very same person permanently, purportedly after obtaining a legal opinion which cleared Mr Motsoeneng.

What utter nonsense! No opinion of a private lawyer can ever trump the findings of a constitutional institution, like the public protector. Only a court can review its findings.
In any event, the attorneys involved, Mchunu Attorneys have said they did not have instructions on the appointment of Mr Motsoeneng. We are pleased that the Public Protector is launching another probe into this appointment and that there will be various court challenges, no doubt with great success given the irrationality of the appointment.

But it raises serious issues about the lack of respect for the office of Public Protector - verging on undermining it. When the Public Protector appeared before the Justice Committee last week, she was accused of political posturing. This allegation is without foundation and unacceptable.

There can be no doubt that the knives are out for the Public Protector, and that this is a direct result of her damning Nkandla Report, and other embarrassing reports, including the sea fisheries and police lease sagas. What if the Public Works minister now presents a legal opinion that says it has cleared President Zuma and officials involved in the Nkandla scandal? It would be ludicrous to say the least.

As far as the Nkandla Report is concerned, the Committee members were not allowed to ask detailedquestions about the report last week.  This notwithstanding that section 9 of the Public Protectors Act dealing with ‘Contempt of the Public Protector' states that "nothing contained in this Act shall prohibit a discussion in Parliament of a matter being investigated or which has been investigated ...by the Public Protector". We were also not allowed to question the SIU on its Nkandla Report and the unit's startling revelation that it had only that previous Thursday been allowed access to Nkandla. I have never seen questions disallowed in this manner.

We as parliamentarians need to come alongside and protect our Chapter 9 Institutions, including the Public Protector. They form part of the checks and balances designed to reign in Executive power.

We need to assist them and ensure that their findings and recommendations are not contemptuously ignored by the Executive. Yes, Honourable Deputy Minister Jeffery, we also need to ask questions about overlapping mandates and the main trends in maladministration evidenced in the roughly 24, 642 reports her office completed last year.

But, to exercise effective oversight, we must also be allowed to put questions relating to relevant investigations, as we have always done in the past. Otherwise we will be ineffective in our role as parliamentarians. This was regrettably to a large extent not allowed.

As far as the department's budget of R9.8bn in general is concerned, the ACDP notes that progress is being made with the financial statements for Third Party Funds - albeit that the Auditor-General has issued a disclaimer. At least there are financial statements now. We also look forward to the tabling of the State Administered Funds Bill.

We appreciate that the Department is facing many and varied challenges, however, we believe these challenges can be overcome. Take for example the Legal Aid Board that was in a chaotic state a few years ago and, through perseverance and hard work, has been transformed to a world leader in the provision of legal aid.

Lastly, the ACDP would like to thank all those dedicated members of the judiciary, prosecutors, court officials who tirelessly seek to uphold the Constitution and the rule of law by providing justice on a day-to-day basis.

I thank you.

Issued by the ACDP, July 15 2014

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