Report a big political challenge for Zuma

The release last week of the Public Protector’s second report condemning the South African Police Service’s multi-million-rand office lease deals in Pretoria and Durban has presented President Jacob Zuma with a major political challenge. With only two courses of action available, either one will have serious political ramifications for him.

Living up to the trust the public places in the constitutionally enshrined Office of the Public Protector, the present incumbent, Advocate Thuli Madonsela, has performed her duties with professionalism and without fear or favour ever since her appointment in October 2009. She was appointed by none other than President Zuma.

The mandate of her office is to strengthen constitutional democracy by investigating and redressing improper and prejudicial conduct, maladministration and abuse of power in affairs of state among others things, and advising on appropriate remedies. Madonsela has repeatedly proven to be a tough and no-nonsense Public Protector, quickly outshining her predecessor who was widely regarded as little more than a yes man of the ruling party.

To put the latest development into perspective it is necessary to trace it back to its beginning:

• 1 August 2010: A Sunday Times article exposes the irregular R1.7bn lease deal for new office space for the SAPS implicating National Commissioner Bheki Cele, the Department of Public Works and businessman Roux Shabangu;
• 2 August 2010: Paul Hoffman of the Institute for Accountability in Southern Africa and Pieter Groenewald of the Freedom Front Plus lay complaints with the Public Protector;
• 3 August 2010: Madonsela’s office and the Special Investigation Unit (SIU) headed by Willie Hofmeyr start investigations;
• 4 August 2010: Sunday Times journalist Mzilikazi Wa Afrika is arrested and held for several days before a court releases him. The arrest is seen as intimidation as he was one of the authors of the original article;
• 11 October 2010: Public Works director-general Siviwe Dongwana informs Cele of a new procurement process after legal advice found the original lease deals to be invalid;
• 25 October 2010: Madonsela releases a preliminary report and gives her support to the new procurement procesas
• 31 October 2010: Gwen Mahlangu-Nkabinde replaces Geoff Doidge as Minister of Public Works in a cabinet reshuffle – no explanation is given, but Doidge was known to combat dodgy deals and was in favour of the SAPS lease deals being investigated;
• 11 November 2010: On legal advice from state attorneys, Minister Mahlangu-Nkabinde announces the Pretoria lease to be enforceable;
• 8 December 2010: Public Works DG Dongwana is suspended on various charges;
• 24 February 2011: Madonsela releases an initial report into the Pretoria lease, listing several irregularities;
• 2 March 2011: Members of the SAPS crime intelligence unit raid Madonsela’s offices looking for a file related to the affair, but senior police management deny any knowledge. Cele’s promise of an inquiry has not produced anything yet;
• 10 June 2011: Minister Mahlangu-Nkabinde announces a moratorium on all Public Works tenders to "root out corruption";
• 18 June 2011: Suspended Public Works DG Dongwana says he fears for his and his family’s safety and that he was pressured into approving the two lease deals;
• 21 June 2011: Minister Mahlangu-Nkabinde wants the court to pronounce on the leagility of the deals;
• 6 July 2011: Madonsela's “imminent arrest” on charges of alleged corruption, later found to be baseless, is reported in the media. President Zuma declares his support for her;
• 11 July 2011: It emerges that SIU head Willie Hofmeyr, who is also investigating the lease deals, is being investigated by the Serious Economic Offences Unit for reportedly flouting supply-chain and procurement procedures;
• 14 July 2011: Madonsela releases her second report and, although finding no evidence of criminality, found the lease deals to be illegitimate and unlawful and recommends that urgent steps b taken to "ensure appropriate action is instituted against all the relevant officials of the SAPS who acted in contravention of the law, policy and other prescripts in respect of the procurement processes referred to in this report." She calls for action against both Minister Mahlangu-Nkabinde and Commissioner Cele among others;
• 14 July 2011: The Official Opposition, the Democratic Alliance (DA), calls on President Zuma to dismiss Commissioner Cele and slates Zuma’s government for repeatedly failing to act on Madonsela’s recommendations; and
• 15 July 2011: Cele’s office says the police will respond this week, while Zuma’s office says he will respond after studying the report and is soliciting legal advice. Madonsela pledges she will insist on action to be taken, and says she will stand by her findings even in a court of law.

On the basis of this sequence of events, it would appear Zuma has no choice but to take action in accordance with Madonsela’s recommendations. It would appear Cele and Mahlangu-Nkabinde acted with total disregard for the regulations and laws guiding such matters, something Zuma cannot afford to be seen to condone.

Failure to act will also most likely invite strong public condemnation from his most powerful ally, the Congress of South African Trade Unions (Cosatu). Already facing opposition from his erstwhile backers in the ANC Youth League (ANCYL), Zuma will be relying heavily on Cosatu to be re-elected ANC president next year.

Failure by Zuma to act will furthermore give credence to theories that there is a conspiracy to intimidate those investigating the lease deals, most notably Madonsela and Hofmeyr. It will also be highly detrimental for Zuma’s public image if he does not take action after publicly defending Madonsela and her office, after repeatedly promising to root out corruption, and after his own arms deal corruption charges were never resolved in a court of law, having been dropped on a technical point.

Ultimately, failure to act could send out a message that the president himself has little regard for the work and integrity of those constitutionally enshrined institutions that were created to strengthen and uphold South Africa’s democracy. This would strengthen the accusations of those who said the ANC and government under Zuma were undermining the Constitution – one of the charges that led to a breakaway from the ANC resulting in the formation of the Congress of the People (Cope).

It would also come on top of recent developments that saw constitutionally protected independent institutions like the media and the judiciary being threatened, the Scorpions disbanded, and a national prosecutions head closely aligned to Zuma being appointed, among other things.

Not much is known about minister Mahlangu-Nkabinde, other than that she studied law, worked in the private sector and as a teacher, became Deputy Speaker of Parliament, was later appointed Deputy Minister of Economic Development, and was a member of the national executive committee of the ANC Women’s League (ANCWL). She is believed to have a support base within the ANCWL, while her time spent in KwaZulu-Natal may have led to her forging political connections with President Zuma’s inner circle of confidants.

Cele, prior to his appointment as police chief, was a prominent if often controversial politician from Zuma’s KwaZulu-Natal power base. He replaced the disgraced former commissioner, Jackie Selebi. Since taking up this position he has frequently been the subject of controversy.

He was promoted within the context of Zuma’s trusted circle of mostly ethnic Zulu confidants from KwaZulu-Natal. However, more recently his name was linked in newspaper reports to an alleged conspiracy by senior ANC leaders to topple Zuma at next year’s ANC national conference and replace him with Human Settlements Minister Tokyo Sexwale. However, these allegations have been strongly denied by most of those named in connection with it, and no proof has been found of such a plot.

Even so, given the current divisions and emerging factional power struggles in the ANC and the broader Alliance, any action taken by Zuma against Mahlangu-Nkabinde, Cele and others, could come with a political price.

Nonetheless, if all the pros and cons are weighed up, it would seem instituting some kind of action against those fingered in the Public Protector’s report, would be the less dangerous route for Zuma to take. Whether that will be more than a public reprimand, or whether it will be stronger action strengthening the functionality of South Africa’s constitutionally enshrined institutions, remains to be seen.