Q & A with Public Protector Thuli Madonsela – Part one

August 1st, 2012

Public Protector Thuli Madonsela became South Africa’s third Public Protector in October 2009 following a 100% vote in her favour by parliament. The mandate of the Public Protector is to strengthen constitutional democracy through redressing maladministration in state affairs. De Rebus news editor Nomfundo Manyathi met with the Public Protector to talk about the role of her office, the types of matters it deals with and some of the challenges she faces.

Ms Madonsela is a human rights and constitutional lawyer. She holds a BA Law degree from the University of Swaziland and an LLB degree from the University of the Witwatersrand.

Nomfundo Manyathi (NM): When was your office created and what is it responsible for?

Thuli Madonsela (TM): The office started operating on 15 October 1995. It will be 17-years-old in October 2012.

The Public Protector’s office resolves complaints of maladministration in state affairs. Complaints include unfair government decisions, decisions not based on integrity and decisions that allegedly involve corruption. To summarise, the maladministration we handle involves service failure or conduct failure. Conduct failure involves unethical conduct or corruption.

The office receives complaints, investigates them and seeks to redress the problem through mediation, conciliation or negotiation. We receive about 20 000 cases a year and we usually carry over cases from the previous year because some of the cases are received shortly before we close our books on 31 March of each year.

Last year we carried over about 6 000 cases and we received 20 000 cases. The cases that passed through our hands were over 26 000. Of those, we resolved more than 16 000 and carried through about 9 000.

NM: How big is its staff?

TM: At the moment the staff complement is about 300 full-time staff, with 20 offices spread across the country. We have one national office, nine provincial offices and ten regional offices. We also have about 15 to 20 interns in the office. In addition, we make use of part-time investigators.

NM: What led you to take the position of Public Protector?

TM: It was not something I aspired to, but I thought that it was an important position. When I was asked to take up the position, what appealed to me was the opportunity to make a difference to the individual person who is fighting a state that has unlimited resources in terms of people, time and money.

NM: What is your ambition for the office and personally?

TM: My ambition for the office is to redress the wrongs of the state, while acting as a catalyst for change to ensure that there is good governance throughout the state. Operationally, it means that every case that we get must receive prompt justice. If a person has been wronged, there must be prompt redress. We also use every case as an opportunity to act as a catalyst for change by addressing the systematic governance failures that cause people to come to us.

I have always found myself in a situation where I can be a voice of reason. Being educated gives you the privilege to lend your voice to other people. Even before I got this job people would come to me for help. This position has given me an opportunity to give people a voice with authority. The difference is that it is no longer voluntary and I can use the authority of the office to give people a voice and also to be a voice of reason to the state.

NM: What inspired you to choose a career in law when it was difficult to do so because of your gender and race?

TM: I chose law because I wanted to change law. I remember my application for a scholarship to the Swazi Council of Churches, in which I said that I wanted to study law because I wanted an opportunity to change the laws. Over the years I have been involved in law reform and constitution drafting and I grew up in an environment where there were still apartheid laws.

I recall my friends telling me that they were going to emaplazini (rural/farm areas) because their homes had been taken away by relatives. Under the Black Administration Act 38 of 1927 women could not inherit their own homes and their houses would be taken over by male relatives or older children, or their husbands would evict them.

Those were vivid experiences that I had as a young person growing up during apartheid. There was the abuse of state power and detention without trial. People could do anything and not much could be done. Later, a few judges used administrative justice to question some of the acts. Later in my life I was exposed to trade unionism but I had already started to study for a law degree. My experience in the trade union movement and in the civic movement pushed me towards human rights law.

Each one of us has a purpose in life. I work better when I advise or adjudicate. I tend to reflect on an issue and look at things from both sides.

NM: What compelled you to forfeit a Harvard scholarship to focus on the drafting of the Constitution?

TM: It was a choice between something you could still have a chance to do tomorrow and something that was a once-in-a-lifetime opportunity and where you could make an impact and a difference in people’s lives. It was a very difficult decision, but one I do not regret.

NM: What is an average day like for you?

TM: It is a mixture of meetings, telephone calls, reading documents, checking reports and editing, usually after hours. During the day, it is mostly conciliation meetings with complainants and meetings with my staff. The day also involves supervising my staff. After hours I do a lot of administration, research and editing.

NM: What are the most common types of matters you deal with?

TM: Most of the cases we deal with involve service failure. We classify service failure in two ways – either service delayed or service denied. The majority of cases we deal with involve service delayed.

One of our biggest challenges in this country is for members of the public service to understand that these jobs are positions of stewardship. The key problem is that some people in these positions do not make decisions when required to do so.

Service denied is when a decision has been made that a person does not deserve something, for example an identity document.

Other cases of service denied include those involving reconstruction and development programme (RDP) houses, for example when the state informs someone that they are not entitled to a house or when an RDP house is wrongfully given to someone else.

A form of service failure may be where service has been given but it is of poor quality, such as where RDP houses are provided but they are incomplete or have problems such as a leaking roof, faulty windows or dysfunctional ablution.

Cases of alleged corruption have increased from about 5% to about 20 to 25%, which includes cases of fraud and abuse of public funds.

We also get cases of unethical conduct by members of the executive council, ministers and others. These are about the abuse of power or state resources or conflicts of interest.

NM: What has been your most satisfying moment as Public Protector?

TM: There have been many satisfying moments, but most of them are when an ordinary grandmother – our typical beneficiary is ‘Gogo Dlamini’– comes back and says: ‘Thank you, I have been able to reclaim my life because you intervened.’ The ‘Gogo Dlamini’ cases usually deal with identity documents, grants or RDP houses.

We have also been able to help in delictual liability claims against the state in small cases. One of the cases that brought a lot of joy to my heart was a case where a grandmother was required by the state to go to court to get the state to fix her wall, which had been damaged by a municipal truck. The state did not deny that its truck damaged the wall, but it said: ‘Sue us, we will answer you in court.’ We resolved the case in favour of the grandmother.

Those small cases are the most rewarding. People think that it is the ones that are covered by the media that matter but it is the ‘small’ ones that make my day.

NM: What are the most challenging aspects of your job?

TM: Delayed responses from the state, because many of the people that come to us do so after they have already lost time.

One young man who came here had already lost five years of his life seeking an identity document. He had been granted a scholarship by a university, which he lost as a result. So, if the organ of state takes a month, or even a year, to answer, they lose further time.

Another young lady, who was writing her matric examinations, had received a scholarship to study in the United States. Due to the amount of time the Department of Home Affairs took to process her identity document, she lost the scholarship.

The difficult thing for me is when I do not receive answers in time. I then have to call the complainant and inform him that I am still waiting for that particular department to give me an answer, knowing that the sheriff wants to repossess his home.

The other difficult thing is when the state agrees to do something and then does not do it. That is the most painful and difficult part.

NM: Knowing what you know now and your experience as Public Protector, what would you change about your mandate, if anything?

TM: There are two areas of my mandate that I would exclude. The first is the mandate to review the decisions of the National Home Builders Registration Council, because it is a misplaced mandate. I think too many people receive sub-standard work from builders and to push the review process to an institution such as the Public Protector does not do justice. You need a proper review panel for those decisions.

The other area where I think we should lose jurisdiction (and parliament agrees, and is already taking the jurisdiction away) is for cases involving the Promotion of Access to Information Act 2 of 2000. I think that it is too important a mandate to be split between the South African Human Rights Commission and the Public Protector when they are overloaded with their own jobs.

In terms of the rest of the mandate, I am happy; I would not change the jurisdiction. I do not want the same powers as the courts because that was never the intention of the architects of our Constitution. It was always the idea that this office should be informal and relaxed. What I want to change are the attitudes of people; hence I do not want to change the law. I am talking about changing people’s minds, that paradigm shift. People should not say: ‘Just because you are not a court of law we will ignore your decisions.’ It is the attitude of people that needs to change, not the law.

NM: Do you have sufficient staff?

TM: No, we really do not. I have been asking government for more staff members and government has been very responsive. In the last year we received more than 20 additional investigators. The number of administrative staff is fairly reasonable but we need more investigators because, currently, the workload per person is skewed.

The investigators that deal with good governance and integrity, which are ethics and corruption related, should be able to handle six cases a year per person. At the moment each investigator is sitting with an average of 27 cases.

The other investigators are carrying more than 100 cases per person. Of the 300 permanent staff, about 130 of them are investigators. So you have to divide 26 000 by 130 to get a fair distribution of cases per person, which is not even at the moment.

I believe that we need double the number of investigators to be able to strike a balance between doing thorough, but swift, investigations. It is important that the cases are handled swiftly, but at the same time without compromising quality. With a limited number of investigators, you often have to make a choice as to whether you will go with quantity or quality. If you go with quality, you lose out on speed; if you go with speed, you lose out on quality. Both are essential for justice but quality is more important. In September this year we will go back to government to ask for more staff.

NM: What keeps you motivated?

TM: The joy of knowing that, for the most part, the team and I can make a huge difference. We get 99% of the cases right and people’s lives are reclaimed. I work with a very motivated team; they handle every case as they would their own grandmother’s case. They work hard, even after hours and when the state is not implementing, and they make sure that I get involved when necessary because, with more than 20 000 cases all over South Africa, I do not get involved in every case. My team is enthusiastic, talented and dedicated.

NM: There has been a lot of media interest in you and your office recently – has this helped or hampered your work?

TM: For the most part, it has helped. Section 182(4) of the Constitution requires the Public Protector to be accessible to all persons and communities. Because of the media, we are able to reach out to all persons and communities without spending a huge budget as we do not have money for advertising.

The media has, however, been a bit of a problem in two ways. The first is the publication of provisional reports, which has damaged the integrity of this institution.

The other area is that the media tends to give attention to high profile cases involving politicians, which gives the impression that we also prioritise these cases because people think that we are peddling them in the media and therefore we do not care much about the ordinary citizen. It is a problem for us that they give these high profile cases so much attention. We would like to see more attention being given to the other cases as well.

  • See the September 2012 De Rebus for part two of the Q & A with the Public Protector.

This article was first published in De Rebus in 2012 (Aug) DR 28.