Stop wasting time and do the right thing, says a bolstered Madonsela

11 October 2015 - 02:04 By CHRIS BARRON

Thuli Madonsela has called on President Jacob Zuma, the government, the ANC "and everyone who has been affected by decisions made by me as the public protector" to stop wasting more time and taxpayers' money and implement her findings, after the Supreme Court of Appeal ruled that the public protector may not be second-guessed or ignored. "They may not like it," she said, "but the only authority that can tell us we are wrong is a court of law."Asked if she expected Zuma to pay back the money he owes on Nkandla, she said she expected him "to implement whatever remedial action" she prescribed in her report.Zuma, the ANC and the government have argued that her findings are only "recommendations" to be acted on or not as they see fit.Their stand was bolstered by a ruling of the High Court in Cape Town last year that her findings were not "binding and enforceable".story_article_left1De facto boss of the SABC Hlaudi Motsoeneng and the former CEO of the Passenger Rail Agency of South Africa, Lucky Montana, also used this ruling to thumb their noses at reports of the public protector implicating them in fraud and corruption.The SABC used it to approach the appeal court to set aside an order by the same Cape high court that Motsoeneng be suspended as directed by the public protector.This has now backfired spectacularly, not only on the SABC chief operating officer but on the man who, according to Communications Minister Faith Muthambi, "loves him so much": Zuma.The meaning of the appeal court judgment is quite clear as far as Madonsela is concerned.The dodging, obfuscation and second-guessing that have characterised Zuma's response to her report must end.In short, "nobody can do what they want after we have spoken".She said she felt the real issue was not about her powers being binding. "It's about people refusing to be accountable." The judgment will help to enforce accountability.The SABC has instructed its lawyers to lodge an urgent appeal against the latest judgment with the Constitutional Court."They are running to court and we know that they are going to lose this matter," said Madonsela. "But should taxpayers' money be wasted?"The same goes for Zuma."I know that if the president takes this matter to the Constitutional Court or any court he will lose it," she said.She expects her report on Nkandla to be implemented without further delay."I want to believe that the ANC respects the rule of law. So once the court has spoken, until it has been overruled by a higher court, that is the law."The government and ANC's response to the appeal court judgment would be the test of South Africa's respect for the rule of law, she said.story_article_right2"I hope the ANC will reflect on this judgment and finally understand that this is a confirmation of our constitution, and is what was intended by the authors of our democracy."It has reinforced the checks and balances of our constitutional democracy."As a Chapter 9 institution, she said, her office was subject only to the constitution, which was quite clear about its mandate and powers."It would not augur well for this country if the ANC or government does not comply with this court order."Already when we go overseas people ask: 'Is South Africa committed to the rule of law?'" Her answer is: "Yes, we are.""Even the al-Bashir thing was not an open defiance of a court order, even if it was a little sneaky."In spite of the court's confirmation of her powers, the public protector's office is by no means home and dry.She says its Achilles heel remains its financial dependence on the government."We have deadlocked on funding for the office because of the independent decisions the office has made," she said.sub_head_start Key points from the appeal court judgment sub_head_end"The independence, impartiality and effectiveness of the public protector are vital to ensuring accountable and responsible government."The office inherently entails investigation of sensitive and potentially embarrassing affairs of government."The office ... provides '... what will often be a last defence against bureaucratic oppression, and against corruption and malfeasance in public office that are capable of insidiously destroying the nation'. It follows that in fulfilling its constitutional mandate, that office will have to act with courage and vigilance.""Significantly, the constitution itself directly confers powers on the public protector. Section 182(1) confers the power ... to: (a) investigate; (b) report; and (c) take appropriate remedial action. Those powers are complementary. If, of course, a complaintor an investigation on her own initiative yields no indication of maladministration or corruption, there will be no need to take remedial steps or utilise any of the other measures available to her. Once the public protector establishes state misconduct, however, she has the vast array of measures available to her as provided in the constitution and the act.""The public protector cannot realise the constitutional purpose of her office if other organs of state may second-guess her findings and ignore her recommendations. The public protector may take remedial action herself. She may determine the remedy and direct its implementation."Judgment was delivered on Thursday..

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