Talking to Thuli 

The Public Protector on the Constitution, her tenure and why she can't go walking anymore. 
by Zainub Dockrat

On the Office of the Public Protector and her tenure as Public Protector

Do you ever feel as if any of your cases are hollow victories, as some people have not complied with your recommended remedial action?

Advocate Thuli Madonsela: "Firstly, it is very important that every decision made by this office is implemented because if we have good decisions but the behaviour does not immediately align itself with the decisions, we might have problems. It is important that the decisions made are implemented, and not just the letter of the law but the spirit of the law as well. It boils down to the point that was made earlier about ethics. For us to start behaving as required by the Constitution, we need to have those conversations about right and wrong.

I always say that Nkandla became about the powers of the Public Protector and the victory was held at the level of what are the powers of the Public Protector? But the one victory we still have to win is the victory on what is right and what is wrong regarding that Constitution.

I think the real gap between government and this office with regards to Nkandla is not what are our powers but what is right and what is wrong? What should have been done, what shouldn't have been done?

We then sought to settle it through powers but going forward we still need to have that debate and say, is ethical conduct a requirement for everyone who works for the state? Section 195 says 'yes’."

Why do you think you had trouble with getting people to comply with your recommendations and why so many cases had to be taken to court?

Advocate Thuli Madonsela: "Political will. In our conversation right now in terms of our new strategic plan, is that we have decided that the greatest conversation we need to have is with our political leaders and it just has to be an agreement on what's right and what’s wrong. Once we reach that agreement a lot of the disagreements won’t take place.

So why do we have some of our reports not implemented?

It boils down to shared values and we think we need a conversation about shared values which will strengthen political will, because when I make a finding that a line was crossed, the starting point should be that we all know what is and where is that line.

If a referee is always issuing red cards, and there is a disagreement with the players, I am certain that they have a meeting with the technical directors and committees to start agreeing again on what’s right and what’s wrong so that there isn’t too much of an outcry."

Are there any cases where you had wished the outcomes would have been different? For example, the Pansy Tlakula case?

Advocate Thuli Madonsela: "In the Pansy Tlakula case I certainly wished for a better outcome, I battled with my team there. I had known her for a number of years, she was an acquaintance and we had fondness for each other. I wish the best for her; I wish the best for everyone I investigate.

But I must be honest and say I am human, and if I know you before, like I knew the president before, I wish for a better outcome because I don't have to feel uncomfortable we have to shake hands.

I do think that had the IEC responded the way we expected them to respond, the matter would not have escalated. Our expectation was that the IEC would say, "Sorry we dropped the ball and we will fix it," -the way that many other institutions do. "

Had you been able to foresee what your tenure would be like- the challenges, the attack on your person, the scrutiny on your family- would you have still taken on this job ? 

Advocate Thuli Madonsela: "Absolutely. I have said that if I knew then what I know now I would say, “sign me in,” without a second thought. When I was approached for the first time, I requested an opportunity to pray about it and I reflected on it and I then decided to take it. Now that I know what I know, I think it's a job that needs to be done. And I think anybody who is considering becoming a public protector should view this- if they are a women, view it like Esther and if you are a man view it like Joseph.

It's a task that is extremely rewarding. I think the Gugu Dlamini stories will warm my heart for as long as I live.

 All of us work to make a difference and do make a difference, we toil but not everyone has the privilege to see the difference they are making- the improvement in people’s lives they are making. 

In this job, everyday you get to see somebody's life restored, their dignity restored- even if you don't get to see their smile- which is a bonus. You sleep well at night knowing somebody’s life has been improved because of the work of this team."

What have been the highlights and low-lights of your tenure?

Advocate Thuli Madonsela: "The highlights for me are the ones which have not been in the media. It's the ones we quietly celebrate here and jump for joy when someone who was owed a huge amount of money by government was paid. By your standards and my standards it is not a lot of money, we had a guy paid R400 000 and I literally jumped because it might not mean a lot to someone else, but to that man whose life came to a standstill, it means everything.

Getting a whistle blower who was fired back her job and paid back her money,it's cases like that for me. Some of the cases have been innovative. 

The low-lights have been the politics and I knew this job would come with it. My predecessors had told me, but they had said that the worst that is going to happen is people are not going to want to sit with you in the protocol lounge at the airport and the VIP lounge, and they might not want to share a car with you when you are being transported to the aircraft. The one was called a twit at some stage, so I expected those. I think that with me it went to the extreme and the low-light was not that I was called a spy- but the fact that the state thought that could be investigated."

Have you ever had any fears that you wouldn’t get the law right?

Advocate Thuli Madonsela: "A fear that we haven't gotten the law right is not one I had with the big cases. With the more innovative law cases, it has happened that I have had to make a decision that was never made before and we have had to wait and see if government is going to agree with me on that decision. They call it justice cases. 

One of the ground breaking cases- where in my heart I know I am right about the law but the remedies had never been done before- is one of a rape victim who  had been sent home 48 times in a case that took eight years. It had never been done before to say, "You will compensate the victim." It had been done in other countries in what you call ‘sorry money’, it was the first time it was done in this country. It's not compensation, it's consolation- not putting the person in a place they would have been but you are practicing restorative justice of some sort and saying you are sorry for what has happened. That was the rape victim case."

Do you have any words of advice for the incoming?

Advocate Thuli Madonsela: "I would say to my successor, "You are here because you are meant to be here. Whatever has happened in life to bring you here has happened because you are ready to do this task. You are competent to do this. Trust yourself, your own values, trust your instincts and work with the team. They are a very competent team, they are dedicated and may disagree with you, but they disagree professionally. And when you converse with them- not from a position of power- but as a fellow professional, you will arrive at different solutions you may not have first saw but that have been strengthened through dialogues with them. Stick with the Constitution, stick with the truth you know and whatever happens afterwards, leave it to God and leave it to humanity." "


We are celebrating the 20th anniversary of the Constitution this year. Have the Chapter 9 institutions served a purpose and are they achieving what they have set out to do?

Advocate Thuli Madonsela: "Yes, most of the Chapter 9s are turning 20 this year. They have done a great job and are operating according to purpose- which is to support and strengthen constitutional democracy. Legislatively, they have received support but there are some gaps...I think Vuwani is an example of where the gaps are because we say these institutions have been established as additional checks and balances to the traditional trio of parliament, executive and judiciary and they were supposed to ensure that no person or community feels desperate enough to use violence as a means to be heard.

I think we need all need to go to the drawing board and say, "Why did Vuwani happen? Why did Fort Hare happen?" "

Is our Constitution in safe hands, both from us as custodians, our leaders and those supposed to safeguard it?

Advocate Thuli Madonsela: "I am certain that our Constitution is in great hands, it is so because it is a great Constitution. It anticipated that human beings make mistakes, as Mandela said, 

"Even the most benevolent of governments are made up of people with all the propensities for human failings." 

The Constitution anticipated those kinds of things and it didn't put our safeguards in one basket, it put our safeguards in multiple centers."

In our line of duty we are facing a dilemma between ethical considerations and public interest. Are there any loopholes in the Constitution which allows for such issues to arise?

Advocate Thuli Madonsela: "Our Constitution is balanced and in it itself, there are no loopholes but the issues you are raising are very real. It boils down to one mistake I think we made. We had a society that was founded on a whole lot of wrong doing; including unethical conduct, corruption, discrimination and things like that. When we created this groundbreaking Constitution, which was supposed to be based on a different set of values, we needed then to have a facilitated process of changing our thought processes and our behaviour so that we act like the people envisaged in that Constitution.

So a lot of the old behaviours are still with us, for example, the sense that as long as the end result is good, you can violate the rules.There are some people who still think like that- that what matters is what happens in the end- whereas we have created a Constitution about doing right things right- which is ethical conduct. What is the answer to that?

There are some people who still think like that- that what matters is what happens in the end- whereas we have created a Constitution about doing right things right- which is ethical conduct. What is the answer to that?

More conversations around what behaviour should be eliminated in line with the Constitution and what new behaviours should we all be involved in in line with this Constitution. Some of it has started happening but we need to do more around what is ethical conduct.

On Death threats, Being a mother and what the future holds

Have the death threats impacted on your life? How did it feel to receive them?

Advocate Thuli Madonsela: "I think the greatest impact of the threat is that I’ve become fat, because I stopped walking in the mornings- I used to walk about 7 kilometers everyday and I stopped. I now have to register with the gym. 

We don't know whether the threat is real or not. It is an allegation and we've referred it to the police. My children were traumatized once it broke in the media. Before then I never told my children, we were informed about this on the April 01, while we were going to the jazz festival. Until the Sunday Times broke the story, life at my house was normal, and I preferred it that way because my view was that ignorance is bliss and because knowing that somebody might be trying to harm you and being unable to do anything about it is not helpful, and not knowing is better. We've referred it to SAPS and we hope they're doing their best to find out how true are the allegations and if they're true what can be done to prevent any harm to me or any member of my family or staff."

What would you like to be remembered for?

Advocate Thuli Madonsela: "I have never really operated on what I would like to be remembered for. I've always left humanity to decide how they want to remember me. But on my part, it's always about doing the best I can to make a difference in people’s lives and in the broader democracy in South Africa and creating a better world which is fair to me and fair to everyone and is inclusive."

What inspires you to want to create a better world?

Advocate Thuli Madonsela: "I think that for me it is a sense of privilege. Firstly, I wanted to create a better world because of the suffering I saw under apartheid. As I grew older- since the age of 35- when I reflected on my life I found that I am an incredibly privileged person and I have had a lot of favours, some of it unmerited favour, bestowed on me. The spaces that were created for me could have been created for somebody else,like being the public protector. I was a lawyer, I was good at what I was doing but there were many other lawyers who were good at what they were doing. 

Favour was bestowed on me and as a way of paying back and part of a sense of gratitude, is doing the best I can do to make life better for everyone else."

How have you balanced being a mother with being the Public Protector?

Advocate Thuli Madonsela: "I have tried to balance my job as a mother and public protector.  I have done better balancing my job as a mother as a Public Protector now for two reasons. I am more mature and more aware of the impact what I do and what I say on my children and the impact of the things I don't do on my children and also because they are older and don't need me a lot except as an ATM and an ear to listen. 

I think you are a mother for life and you always need a parent to listen to you without judging.The world exerts pressure on you and home is the one place where you can be yourself.

Before being Public Protector , it's always been difficult to balance, I think you drop some balls, you pick them up . If I look back now, if I were to advise a younger mother,  I would say don't do some of the things like I did. For example, I tried to be there when it mattered and I thought that was important. So I would be there at the evening events and when they really needed me if they were stranded somewhere, I would give them my time. And if it was a cricket or tennis or rugby match during the day, I didn't think that mattered, I've discovered now it mattered a lot. Because when you are a child you interpret anything your parent did or didn't do as it as “do I matter?” and if they don't come to your rugby game, then "I don't matter". I would do that differently.

How do you unwind?

I pray, meditate, used to exercise, I spend a bit of time with family and if they are watching something I watch it with them. Usually it's soccer because I live with a lot of boys- nephews and my son. I used to go to the movies, to the theater but I haven't been for some of time, I read a lot of magazines, with a book it becomes a burden because you must balance and between balancing work and eat you feel compelled to make choices and with a magazine you do it at a go.

What will you do after your tenure?

I am going back to where I came from- which is civil service and being a civil society professional, practicing law, teaching law and an activist in the areas of the rule of law, constitutionalism and social justice. And I see myself doing a lot of work with young people because currently they are no longer regarded as leaders of the future- they have gabbed leadership and are leading. Having good conversations with young people and understanding their impatience and their sense for justice now, not justice tomorrow and their sense of development now and not tomorrow is a good thing to do but infusing that with wisdom makes a very good partnership.