Madonsela's response: A new hope

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On Tuesday, at what the ANC called an “urgent press conference”, it spat fire at the Public Protectors, claiming Thuli Madonsela had admitted her office was responsible for the leak of her provisional Nkandla report, and saying that she was “playing political games” with the document.

On Wednesday, as was predictable, Madonsela shot back. To us, one case is clearly stronger than the other. But as always, in our politics, who you choose to believe depends entirely, as one prominent politician might put it, on where you sit.

If Gwede Mantashe grunts, Thuli Madonsela whispers.

She isn’t one for shouting and screaming, which does make her virtually unique in our politics (though she, strictly, is not a part of the political scene). But even as she whispers, she has a big stick, in the form of the powers and resources of her office. More and more, the size of that stick is really determined by public opinion, and how much support she really has among the chattering classes. All of this means that once Mantashe and Jessie Duarte had brought out their big guns, she was going to have to respond with the artillery of her own.

The main claim from the ANC was that somehow Madonsela wanted to release the final report just ahead of next year’s elections, in itself an admission that any harm to the Zuma brand constitutes harm to the ANC brand. It’s the sharp end of the Polokwane decision to choose Zuma in the first place.

Given the tendency of the Zuma brand to self-harm, it’s in the interests of the ANC to try to control that harm as much as possible. By claiming politics motivate Madonsela, it may provide a salve for some of the hurt, and by trying to push the report’s publication earlier, it may try to get it out the way as early as possible, so it would be forgotten by the time general population heads for the polls in 2014.

Madonsela, of course, denies any political motive here. And she says she wants to release the final report in the second week of January. Given the way our politics moves, that’s an aeon away from the elections.

Madonsela does appear to be on strong ground here. The ANC has not made a strong case as to why she might be “playing politics”. One of the questions left unanswered at Luthuli House on Tuesday was what would her motive. It’s going to take more than dark mutterings about “political conspiracy” to sell us that bill of goods. Show us the proof of the last one, give us the Zuma Spy Tapes, and we’ll believe you.

The other main point of course, is the leak. How did amaBhungane get hold of her provisional report? Duarte put it quite plainly on Tuesday, claiming that Madonsela’s statement on Monday that she was tightening up how she dealt with her provisional reports was an admission that it had come from her office.

Madonsela doesn’t even have to respond to that, because it’s such a weak argument. But, as she did take the trouble to point out, that is hardly proof the leak did come from her. And even if it was from her office, that doesn’t mean it came from her personally, or with her permission.

Thus all Madonsela had to do here was simply deny the claim, which she has now done.

In person, Madonsela has a certain manner of speaking. She is one of those people who speaks as most lawyers write. Slowly, deliberately, with a considered cadence. When asked on Wednesday if she was “under attack”, her response was that “the terrain has become poisoned”. Indeed it has.

Because what we do seem to have here is a completely different set of agendas from what is really the same set of people. As UCT Public Law Professor Richard Calland pointed out on the Midday Report on Wednesday [Stephen, we’ve discussed this before, you have to listen to more radio, I know this is difficult for you, but there are other programmes out there, you should try some – Ed], we have the ANC in Luthuli House demanding the report be released immediately, and ANC deployees in government, in the security cluster, who’ve tried to delay its release.

That’s just weird.

But, if Madonsela wants to, she could find a way to make the point, and to do it in a way that is properly understood by the court of public opinion she needs in her corner. It certainly doesn’t reflect well on the consistency of the ANC as a whole, and on the political management of Zuma in particular.

The Public Protector now says she wants a meeting with the ANC on this issue, to sort out the “distortions”. This may not be a wise move. For a start, as a lawyer, Madonsela would know the ANC has no legal standing in this dispute. It didn’t lay the complaint, the complaint has not been laid against it, and so it is not “an affected or implicated party”. And you should never, ever, agree to a meeting of your opponent, when it is unnecessary, and on their ground.

The fact the ANC said so quickly in public that it looked forward to “the engagement” may be an indication of this. All Madonsela can say to Mantashe is that she is not interested in politics. She will never be able to prove it to him.

But, no doubt, they will all put on their smiley faces for the cameras when the meeting’s done.

While it seems Madonsela is on stronger ground, on the facts rather than the politics, than the ANC, she does have a major weak spot. Up until this point, she has not actually laid a charge against anyone for publishing parts of her provisional reports.

This has happened so often, it’s almost come to be expected, and is a part of the entire process, to leak bits of them, as part of the political conversation about several issues. But, on Monday, in a statement her office made this quite clear:

 She reiterated the point that publishing the reports was both unethical and unlawful. This practice, she added, was at odds with section 7(2) of the Public Protector Act 23, 1994, which states that:

“No person shall disclose to any other person the contents of any document in the possession of a member of the office of the Public Protector or the record of any evidence given before the Public Protector, Deputy Public Protector or a person … during an investigation, unless the Public Protector determines otherwise.”

This begs the question, then, why has she not prosecuted any of these cases. It’s not really enough for her to say, as she did on Wednesday, that to pursue these cases would be to keep her entire staff busy. This is one of those cases where something that didn’t really matter now weakens you at a time when you cannot afford any weakness. While it is totally against our DNA ever to suggest journalists should be prosecuted [Damn right! –Ed], we have to say this is a major hole in Madonsela’s credibility. It could be used to weaken her entire case.

But, in the end, the final analysis comes down to who you trust. If you’ve made up your mind that you are voting for the ANC, and Zuma, then a whole choir of whispering Public Protectors isn’t going to change your mind. And if you are not, then Mantashe can give you many different chairs to sit on, but you’re still going to sit where you are right now. 


Grootes is the host of the Midday Report on Talk Radio 702 and 567 Cape Talk, and the Senior Political Correspondent for Eyewitness News. He's been part of the political hack pack since before the Polokwane Tsunami, and covers politics in a slightly obsessive manner. Those who love him have recommended help for his politics addiction. He quotes Amy Winehouse. Grootes studied at Rhodes University.

Article Source: The Daily Maverick