Former Judge van Schalkwyk: In defence of Madonsela – beacon of integrity

The R740 000 that was put on Thuli Madonsela’s head is testament to how deep she ventured and how resolute she was in her position of Public Prosecutor. Madonsela made the Times 100 most powerful people and her work has made a difference to South Africa’s young democracy. Former judge of the Supreme Court of South Africa, and at the time one of the youngest appointments Rex van Schalkwyk lays testament to all Madonsela has done in the piece below. He says she’s demonstrated the distinct importance between loyalty and duty, and stands as a beacon of integrity. This is his defence of Madonsela. – Stuart Lowman

By Rex van Schalkwyk*

Like Burmese stateswoman Ang San Suu Kyi, Thuli Madonsela, a member of the African National Congress (ANC), deserves the Nobel Peace Prize for her steadfast and courageous stand in support of the principle of accountable government. Against overwhelming pressure from within the ANC she has remained resolute in her independence; a quality demanded of her office as Public Protector. She evidently takes her duties seriously.

Former Supreme Court of South Africa judge Rex van Schalkwyk
Former Supreme Court of South Africa judge Rex van Schalkwyk

In her public pronouncements Thuli Madonsela has demonstrated the profound importance of the distinction between loyalty and duty. She has, with an unobtrusive eloquence, exercised a gentle, feminine authority more profound than anyone in South African public life. She has done so with a quiet command that transcends and makes irrelevant all the noise of political rhetoric that invariably follow her pronouncements. She stands as a singular beacon of integrity.

The misplaced nationalist sentiment and ill-considered loyalty she frequently encounters can be attributed, in its origin, to a United States naval commander. Following a victory against the Algerian Barbary Pirates, at a celebratory banquet in April 1816, Commander Stephen Decatur expressed this unwholesome opinion: “Our country! In her intercourse with foreign nations may she always be right; but our country right or wrong”. It is this last sentiment that has been immortalised by bigots and nationalists of every persuasion.

Public Protector Thuli Madonsela
Public Protector Thuli Madonsela

In October 1913 another American, Senator Carl Schurz, in a speech delivered at the anti-imperialist conference in Chicago, sought to correct the naval commander’s calumny. Having condemned the commander’s views for their “… false pride (and) dangerous ambitions…” he said: “…(O)ur dignity, our free institutions and the peace and welfare of this and coming generations will be secure only if we cling to the watchword of true patriotism: ‘Our country – when right to be kept right – when wrong to be put right.’”

To her great credit as a loyal ANC member, Thuli Madonsela has adopted the senator’s position; her numerous and voluble critics have adopted the position of the naval commander. To the shame of the latter, their position is most frequently not even supported by false pride and dangerous ambitions, but by selfish and corrupt aspirations. Thuli Madonsela and her office are the ones who are attempting to put to right some of the very many things that are so obviously wrong within the South African body politic; her detractors, in their misplaced loyalty, are the ones who are determined to keep the wrongs in place.

Following her investigation into the Nkandla scandal a letter from Ms Madonsela’s office to President Jacob Zuma which questioned Zuma’s extraordinary decision to have appointed his police minister, Nathi Nhleko, to review her report, was leaked to the press. The truly pressing issue is how the president could possibly have concluded that a minister within his administration (who we are constantly told, serves at his pleasure) might be expected to have the lawful authority to undertake an investigation of this kind.

The only legitimate enquiry that arises from this entire matter relates to the fitness for office of a person so obviously lacking in elementary judgment as to give an instruction of this kind to his police minister. The deputy secretary general of the ANC, Jessie Duarte, however found an issue of even more pressing significance. After having berated Ms Madonsela for thinking she was above all other institutions in the country, including parliament, the question to which she required an answer was, who leaked the document? The public protector was, she said, very populist, and did not “present the full picture to the country”. It was her opinion that the office of the public protector needed to be “strengthened”.

Read also: How world sees SA: The FT meets (and loves) Thuli Madonsela, Zuma’s nemesis

When the president eventually had the opportunity to place his arguments on these matters before the Constitutional Court, there was no word of the supposed failure by the Public Protector to have presented the “full picture to the country”. No part of these contentions featured in any way in the court’s judgment; nor has there been even a word of contrition from Ms Duarte.

At a tombstone unveiling of a “struggle veteran” held in Soweto in September 2014, the Deputy Minister of Defence and Military Veterans, Kebby Maphatsoe, expressed his belief that Ms Madonsela was a CIA agent. “Thuli must tell us who her handler is” he proclaimed, as though he was expressing an incontrovertible truth. “These Chapter 9 institutions were created by the ANC (false) but are now being used against us, and if you ask why, it’s an agenda of the Central Intelligence Agency. The Americans want their own CEO in South Africa and we must not allow that”.

In 2009 Julius Malema, then still a loyal member of the ANC and the president of its youth league, had organised to hand out food parcels for which the funding had been provided by the South African Social Security Agency. This incident, among others, was subsequently referred to the Public Protector for a determination on the appropriateness of such conduct. The specific issue on which the Public Protector was required to pronounce was the need for the separation of state and party political interests.

In her report released on 5 May 2016, Ms. Madonsela found that the distribution of the food parcels was contrary to the Constitution, and an abuse of state resources. In Parliament on 6 May 2016, Minister of Social Development, Bathabile Dlamini, claimed that Ms. Madonsela had “got personal” in her report, although Ms. Dlamini had not been the incumbent at the relevant time and was not even mentioned in the report.

Read also: Madonsela: Unless politicians also bend knee to law, country will be lost

A critical part of the report is that the department of social development should develop an appropriate policy to ensure that no state institution be allowed to use its resources in a way that would promote party political interests. One would have thought this an expression of common sense.

In her parliamentary response, however, Ms. Dlamini had an answer. It was her department’s duty to alleviate poverty. “It is unfair” she said, “to expect that people’s needs can just be switched on and off…You can’t say because you (sic) are campaigning, you cannot support people”. Well, maybe that is what she literally intended to say after all, but she should perhaps have added the words, “…as you choose”.

In a lamentable postscript to these and many similar abuses to which her office has been subjected it now appears that a bounty has been paid to a “notorious Cape gang boss” to arrange the assassination of Thuli Madonsela.

  • Rex van Schalkwyk is a former judge of the Supreme Court of South Africa and is the Chairman of the Free Market Foundation’s Rule of Law Board of Advisers.