Advocate Busisiwe Mkhwebane took over as South Africa’s new Public Protector on October 14, the day her predecessor Thuli Madonsela famously ended her seven-year term.
Although Mkhwebane describes her first day in office as one of her best, she says she was thrown in the deep end when she had to present the State of Capture report compiled by Madonsela.
We visit Mkhwebane on a rainy day in Pretoria in the office of the Public Protector, where, on the wall now is a framed photograph of Mkhwebane, alongside South African President Jacob Zuma and his deputy, Cyril Ramaphosa.
She appears wearing a charming smile and a red dress with a leopard print blazer.
Mkhwebane grew up in Kwaggafontein, a dusty village in the Mpumalanga province of South Africa, born to a farmworker who was an unskilled laborer for Sasol; her mother was a housewife.
When only 17, Mkhwebane became a mother, and had to go in and out of court to seek child support from her then boyfriend.
She had initially wanted to become a social worker, but the courtroom visits actually influenced her to study law.
“It exposed me to another element of assisting, at first I wanted to work in court and be a judge. Having my first child at a young age encouraged me to be educated,” says Mkhwebane.
After obtaining a degree in law from the University of the North, she followed it up with a Diploma in Corporate Law and Higher Diploma in Tax Law from Rand Afrikaans University. She has worked as a Director of the Country Information and Cooperation Management Unit for the Department of Home Affairs.
Today, as the new Public Protector, she is in the media glare. She has big shoes to fill.
“We had Pastor At Boshoff of the Christian Revival Church welcome the staff, so for me that was the highlight. It was like homecoming because I had worked for the office before and [was] meeting old colleagues,” says Mkhwebane, who in 1999 had worked at the Public Protector’s office as a Senior Investigator and Acting Provincial Representative.
Just before taking over, Mkhwebane says she only met Madonsela for a brief 20 minutes, although, she wishes she had more time with her because she had to present the State of Capture report in Parliament the following week.
“I dealt with it, because I never prepared that report but I owned it. It’s one of the performances which the former Public Protector has achieved.  She was excellent in that and whatever was in the annual report I had to present it as my own,” she says.
One of the most high-profile cases in recent history was Madonsela’s investigation of Zuma’s estimated R246-million (approx. $17.3 million as per current exchange rate)public spending on the security upgrades of his home in Nkandla in South Africa’s KwaZulu-Natal province.
“I met her only once on her last day, I was supposed to receive the handover report unfortunately she had slept in the office busy preparing it and in the morning when I arrived, she wasn’t here so I only met with the CEO and other senior managers,” she says.
“I’ve got nothing against her; she’s got nothing against me. When we met, I thanked her and told her that I will take over from her and [take] the office to greater heights.”
Mkhwebane’s appointment came with its share of controversy when the Democratic Alliance (DA) claimed she was a spy for Zuma. Mkhwebane denies this.
“I’ve never had an interaction with President Zuma besides meeting him when he visited China for a state visit; I was responsible for communication when we were arranging the local media for interviews, that’s when we were in the same room but not even interacting. The DA is making a frivolous allegation that I’m a spy and they are not bringing any proof after I indicated several times that they need to disclose their sources who are lying to them.” Despite the unsubstantiated claims, she is pressing on with her work, tackling criticism head on.
“It sometimes builds you as a person. I’m not one to act out of that and be emotional and angry. I analyze what I’m criticized for and what I can learn from it. And you won’t satisfy every person,” she says.
The first thing she noticed after assuming office was staff morale was an issue.
“There are people who haven’t signed their performance agreements for the past two years and some have taken the institution to the CCMA, what do you call that?” says Mkhwebane.
The next seven years in office, she hopes to empower ordinary people to stand up for what is right and hold leaders to account.
Madonsela will be remembered for her fight against corruption. Time will tell if Mkhwebane will live up to the admiration many hold for the Public Protector’s office.

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‘Criticism Sometimes Builds You As A Person’

<h4>What the judges said</h4>
&#8220;We feel Thuli Mandonsela is a woman of substance who has inspired many people across Africa with her stand for the rule of law and against corruption. In seven years of hard work, she has spoken truth to power and helped keep the people running her country accountable. A difficult job she carried out with professionalism and integrity.&#8221;
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Her polite, welcoming, voice would make anyone feel at home. It is strange to see Thuli Madonsela – the towering advocate woman who has taken flak from politicians for years – at home, relaxed and flanked by her family. She ushers me into the lounge. We sit next to an open patio door, facing a cluster of colorful trees, with a welcome breeze easing this sweltering summer’s day. Every bit of furniture matches her unpretentious nature. African paintings on the walls; each ornament holds a story about her travels across the continent.
She looks good for a person who has just left office, in her own words, followed by missiles. Her biggest case so far has caused ructions – the so-called state capture report. She was investigating allegations made by South Africa’s Deputy Finance Minister Mcebisi Jonas that he was a offered the job of Finance Minister by the billionaire Gupta family that has opened a can of worms.
The offer came, it is alleged, just before President Jacob Zuma fired the then Finance Minister Nhlanhla Nene in December 2015. When Jonas blew the whistle, former member of parliament Vytjie Mentor also alleged she was offered a cabinet post by brothers Ajay, Atul and Rajesh Gupta. The family has businesses, from coal mines to media companies, and were in partnership with President Zuma’s son. Former Government Communications and Information Systems head Themba Maseko also claimed the family unsuccessfully tried to bully him to put government advertising to their newspaper.
This report was one of the last acts in Madonsela’s seven turbulent years of speaking truth to power that took nerves of steel.
Her office, in the last days, was like a house of madness, she says. There were complaints to be investigated, last-minute interviews and many loose ends from multiple investigations.
On the very last day, she and her team worked through the night in an atmosphere leavened by banter and jokes.
“It was exhilarating, as a result I never really had the opportunity to feel sad about seeing my office for the last time because there was so much adrenaline, so much to be done and it was all done,” she says.
“Then there were curve balls of having being either sued or spending time with the lawyers. On the outside I was pretty calm but on the inside I would be thinking I have three hours to complete this document but these other things were coming, so I did feel some of the pressure. There was a bit of noise on the outside but the team that I worked closely with also stayed calm. I think the only time I saw some cracks was when we were told the president has lodged an application for an interdict and they thought it was the end of the road. I had anticipated these difficulties with some of the seniors, so when the younger ones got panicky about life overtaking the good work done, we didn’t panic. We told them to calm down and continue with the report as if they haven’t heard any news.”
Zuma had applied for a court interdict to stop the report’s release, saying he wasn’t given enough chance to respond. He also accused Madonsela of saying the report was not final, implying he was misled. Zuma withdrew the court challenge on the day of the hearing.
“I’ve never said it was not a final report. All in writing, I have always promised to issue two reports. Phase one would cover whatever we knew then and what should be done to fix it. It was going to look at ministerial appointments, Mentor and Jonas’ allegations. It would look at the president’s liability because of the 30-day requirement. Phase two would be on the Catholic Bishop’s request to look into Gupta-related companies and all licenses and related matter,” explains Madonsela
Madonsela’s report has left a trail of tears and paper leading to murky business dealings that the Gupta family denies.
“I recommended a commission of enquiry because this investigation cuts across ministries, the legislator, the executive and go into state-owned enterprises, it is bigger than the arms deal (South Africa’s arms procurement scandal) and if you’re going to do an investigation like that you obviously need a commission of enquiry.”
Madonsela says she doesn’t understand why the report was being challenged and also “got a sense that if the president wanted this matter to be investigated he would have long done so.”
“This gives a perception that is not in his favor because if somebody makes this allegation about his son and this person is a member of the cabinet, a normal person who has nothing to hide would look into it. That’s a question that people raise which shouldn’t be raised about the president,” she adds.
“We asked him a simple question like why did you fire Mr Nene?”
The president chose not to answer the question, Madonsela says.
Madonsela knows how it feels to field questions about a son. Her son Mbusowabantu took her official car while she was asleep, in 2012, and had an accident.
“It was very awkward because for me, I’ve been asked very difficult questions too, I couldn’t give a different answer to journalist. The issue about my son, I have given a consistent answer whether you’re the media or parliament. I was asked by parliament and I never even got a lawyer to answer those questions, so I don’t understand.”
It’s surprising that this woman, who has worked where few dare to tread, has regrets. She feels she should have encouraged someone to sue the government for depriving her office of resources. Organs of state are compelled by section 181 of the constitution to equip institutions like hers. Madonsela’s office didn’t have electronic data capturing.
“You have to go through the whole system manually to find out where that matter is. You’re also unable spot cases that aren’t moving. I think we should have stood up, it is threatening the functionality of that office,” bemoans Madonsela.
Her biggest regret, she says, was also leaving remuneration problems to the administration. Staff were unhappy with a heavy work and light salaries. Law firms handle four major cases a year while Mandonsela’s staff handled more than 50.
Madonsela says this means low morale, contrary to her successor Busisiwe Mkhwebane’s claim, before Parliament, that hinted at Madonsela’s management style.
“I wrote in the report that staff morale was a problem. I had explained that the main problem with staff morale was finances. People are getting too many cases and it is documented, there are memos at my desk all the time,” Madonsela explains.
“In other words, had it been me I would have explained to them, provided I have evidence. I would have said here is a memo, the provincial managers have taken us to court on some of those issues. She had to say she will improve staff morale. She can’t improve staff morale without being given money.”
Parliament invited Madonsela for her last appearance, on October 12, but this was postponed to October 19. This meant Mkhwebane would sit in parliament to present the 2015/16 Annual Report after a mere six days in office.
“I remember I was with the team when we got the notice. We laughed and said nothing here is surprising. We still wanted to find out why it was postponed, but no answer was given. For me it was about leaving graciously but I think it created a clumsy transition between me and my successor. She now had to find herself presenting a report that was not hers which required prior preparation for her to defend herself.”
She also feels there should have been more quiet conversations with the government around values and processes. Institutions with more or less similar functions of the public protector spend their time doing a lot of education, she says, to the executive around the laws they have passed. Her clashes with government ended up being about processes and powers, but at the core of the disputes was the enforcement of values.
“There’s a common narrative about wrong and right. Take Nkandla [the president’s homestead that received irregular non-security upgrades], it was always about what was the ethical standard that President Zuma should have complied with. What was the responsibility of the president?”
“We’re back to the same problem again with state capture. The essence of it was what was the responsibility of the president of this country when one of his own trusted deputy ministers says I’ve been offered a bribe to take the job of my colleague and pass decisions that favor the person that is offering me a bribe. If you’re a president of the country isn’t it your job to just find out if there this is happening since the person who is saying this is implicating your friend and your child or somebody you call a friend publicly,” says Madonsela.
“It’s just an issue about ethics. Themba Maseko accuses you publicly as the president of the country that you asked him to help those people, don’t say I never did that. Shouldn’t you say I have instituted a commission of enquiry to find out why this young fellow is lying about me.”
“These people may well be lying and if they are lying they should be called to order but you need a process that checks out whether or not they telling the truth. As long as nothing is done about it you will always have this question mark. It is creating a dysfunctional executive, it’s creating fractured relationships but it’s also saying to the world there are improper influences in the state of South Africa but it may well be not true.”
These are conversations she believes would have helped cabinet with its responsibilities as stipulated in the Executive Members Ethic Act under section 195 and 237 of the constitution. Her office was inundated with requests to investigate cases she would rather not, like state capture. There were many reasons. Hands were full, she was on her way out, cases should be dealt with on last in last out basis but this case was brought under the Executive Members Ethics Act. When a case is brought in through this Act it compels the Public Protector to investigate. According to this law, cases are also supposed to be completed in 30 days, which also left her with no time.
Madonsela had to make tough choices in standing up for the truth that won her the admiration of many Africans and won her the title of FORBES AFRICA’s 2016 Person of the Year – a fitting send off for a fearless woman who never backed down even in the face of death threats.
“My children are relieved. My brother is just relieved that I made it out alive. That was his message the day I finished on the 14th, saying “sisi siyabonga ukuthi labantu abaku bulalanga (Sister, we are grateful these people didn’t kill you). I hope we keep it that way because with the state capture report, the missiles are following me. I’m done, this is just revenge, I can’t harm them in any way whatsoever,” she laughs.
Many people want to hear from this elegant and softly-spoken daughter of a domestic worker and taxi driver; she has filled her diary until the end of the year. Thereafter she heads off for either Harvard, where she may study guidance and governance, or lecturing at Oxford University. It’ll be a lot quieter there.
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‘Sister, We Are Grateful These People Didn’t  Kill You’

An uneasy quietness permeates the Public Protector’s office in Pretoria, South Africa. Where ever we go, including the bathroom, there’s an escort lurking, keys in hand.
The usher apologizes for the tight security.
The staff are clearly on high alert following shocking revelations of an assassination plot against the Public Protector, Advocate Thuli Madonsela.
When Madonsela appears, I expect the same tension but it immediately becomes clear that drama is around her, not within.
Yes, she is reserved but one could say it’s her personality. The advocate is dressed in figure-hugging blue jeans, and her Zen voice and sophisticated demeanour draws you in.
It’s not surprising that someone would threaten her life. After all, she has ruffled some very powerful feathers. No case is too big, small or dangerous for her. She was recently tipped off by a whistle-blower that a gang boss in Cape Town has paid three hit men R740,000 ($47,000) to kill her and make it seem like a car accident. Madonsela says she has no reason to doubt this and takes it very seriously.
“It’s because of my history with the whistle-blower that I have no reason to believe that she is not telling the truth. She says she saw the emails because she’s linked to the gangs from the community. She had given me information before that that turned out to be true,” Madonsela explains, no flicker of fear in her voice.
Her courage is understandable considering the women who have influenced her from a young age. Among them is anti-apartheid activist Victoria Mxenge, a lawyer who was a prominent member of the United Democratic Front. She became more politically active after the assassination of her husband Griffiths Mxenge.
“I never got to meet her but I went to her funeral. This is where I got to hear about this fearless lady who was a nurse and continued to study to become a lawyer. When her husband died, she didn’t shy away, she took over from where he’d left off and met the same violent death,” she explains.
Madonsela has an affinity with Victoria Mxenge. She too, could have been a nurse if her father had his way but she chose to study law.
“When I finished grade 10, my father arranged with a nursing sister who lived a block away from us to get a place for me at Baragwanath Hospital to study nursing. Everything had been arranged without consulting me. I was supposed to go there on a Monday, I refused,” she smiles.
Her father, who worked in the electrical industry, refused to part with a cent for her fees from that grade until university. Her mother, a domestic worker at the time, went all the way to Evelyn Baring High School in Swaziland to speak to her school principal to arrange her bursary. She finished high school through a church bursary and got a United Nations sponsorship for university.
“My father was the scariest man I had seen in my entire life. He had been brought up in the farms. He was really draconian. People were also scared of him but I think when you grow up as a child you eventually realize he’s not going to kill you,” she laughs.
“My first act of defiance was this one although it wasn’t meant to be an act of defiance, it was at the time when I had decided I wanted to be a lawyer, not a nurse.”
What influenced her to become a lawyer was the June 16 Soweto uprising; she was 15 at the time. She initially wanted to become a doctor as she was good at maths and science. People who saw her caring nature thought so too.
She chose law because she was convinced of its healing power. This was during apartheid when a lot of black people’s problems were with the law. They were being arrested because of the pass laws.
“Our cousins would be visiting us from other parts of the world and we would all be traumatized by the police knocking at night at our house and in the neighborhood. We would run around and hide in the cupboards and under the beds, some people would still be taken away. In fact, one of my cousins was taken away coming back from work. We heard they found him without a pass. There was a farm out there in Mpumalanga where they sent people to work for free. We never saw him we don’t know what happened to him till today.”
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Humble Childhood
The advocate comes from humble beginnings in Dlamini, Soweto. Her father never saw the inside of a classroom but he taught himself to read and write. He pulled himself up by the bootstraps and bought a few cars which he used on weekends as long-distance taxis.
Her mother also had little education. She quit school and ran away from her adopted missionary family in pursuit of an alluring life she believed domestic workers had when she saw them in fancy clothes during December holidays. According to Madonsela, it’s a mistake she would later regret and wouldn’t allow her children to repeat.
“One thing she really drummed into our heads was education at the greatest level because she had the misfortune of meeting the child who was taken by the missionaries to fill her place. She had been educated, happily married and she was living a proper life,” she says.
Madonsela’s interest in fighting for people’s rights started early. When she was still studying in Swaziland, the late struggle veteran and African National Congress (ANC) stalwart Albertina Sisulu used to invite her over during the holidays. This is where she met her son, the late Zwelakhe Sisulu, who later introduced her to the National Union of Painters and Allied Workers Union (NUPAWU).
“He thought I could assist and they could use free labor but it was quite a lovely experience,” she chuckles.
Once she finished her degree, she worked with the union again as a legal advisor. Her first entry was to negotiate a transition from the pension fund to the provident fund. She then left and worked briefly in the construction industry as a legal advisor. From here, she joined the University of the Witwatersrand (Wits) under the Center for Applied Legal Studies as a researcher and also teaching labor law and gender studies part-time. She was involved in the civic movement.
Madonsela was also involved in advising the ANC on the constitution. During the multi-party talks, they also assisted with research mostly on issues of equality, the bill of rights and land. She was also part of the 11 constitutional experts based in Cape Town.
Her knowledge of the constitution came in handy recently when opposition parties went to the Constitutional Court of South Africa asking the highest court in the land to clarify the powers of her office.
“It was important for me as a South African and as the leader of the team that whatever happens there, the powers of this office are properly understood. I think it was the right decision but there was so much attack that we should stay out of it and let other people define your powers, which was wrong. In fact, it’s normal that if litigation has got a touch on you that you’re included as a respondent,” explains Madonsela.
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‘I Use Soft Power’
One would be forgiven for thinking the Public Protector’s office only pursues corruption cases. It is all that ever hits the front pages of newspapers. The bulk of her work comes from what she calls the Gogo (granny) Dlamini’s cases. This would be a pensioner whom the law has failed and has been sent from pillar to post.
“One of the cases I had to decide on was a rape victim who was sent from pillar to post for eight years and the case had been postponed more than 40 times. The sense as a team here is that it is not enough to say we’ve wronged you we will not do it again. Even if we don’t pay them enough money to rebuild their lives but there has to be a sense of compensation or consolation,” she says.
Regarding financial mismanagement, she believes for this democracy to thrive, the little money this country has must be used properly. If it’s not, there won’t be proper housing, quality health and education systems.
“As you can see now, 22 years into democracy, we’ve done well in that today is better than yesterday but we all agree that we could have done better. We had the means to do better but because of maladministration, corruption and misappropriation of public funds, the pace has been slower than it should have been,” says Madonsela.
What was to be the fight of her life, since she took office in 2009, was her investigation of South African President Jacob Zuma’s estimated R246 million (approx. $15.7 million as per current exchange rate) public spending on the security upgrades of his home in Nkandla in South Africa’s KwaZulu-Natal province. The president claims to have raised a loan of R800,000 ($51,000) for part of these renovations. Many would have shivered and shied away from such a delicate case but Madonsela rolled up her sleeves. She admits such cases need a fine balancing act.
“What I’ve done with all of these cases is to do expectations management, I use soft power. I think Nkandla is a sad case where soft power conversations didn’t work,” says Madonsela.
By ‘soft’, she means calling people to her office, make them tea and politely reminding them of what the law stipulates. She often points out these are the rules that they as government have made. She is only there to enforce the laws and in doing so has to be consistent. She says in most cases they understand that it’s not personal.
“I think with this case, we didn’t see it coming, we honestly thought that it was one of the easy ones where one can say yes we made a mistake but we can fix it. You can recall we didn’t even say that someone must decide how much must be paid, we said somebody must ‘advise’ on how much should be paid. It was crafted in such a way that compliance was made easy,” she adds.
“Regardless of what people think of me and my team, we do put ourselves in the shoes of people we judge. The story is not just about the money, it was a story about excesses, privileges for those who are employed by government and what we wanted was to stop the rot more than to recover that money. The idea was not to cripple the person because we know that the president is not a business person, he is an employee of the state, based on what he has disclosed, he doesn’t appear to be rich, so the idea was to pay what is reasonable.”
Sometimes when a big story breaks, her heart sinks and prays: ‘please God, not me’.
Madonsela was raised by spiritual parents. Her mother was brought up a 7th-day Adventist and her father a Methodist lay preacher.
“We grew up in an environment where we were expected to read the Bible every day, listen to short stories on the radio or religious services,” she explains.
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Most Influential
She also drew lessons and inspiration from women like Eleanor Roosevelt, Oprah Winfrey, Priscilla Jana (a fearless lawyer), Charlotte Maxeke and Olive Schreiner.
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“Olive Shreiner, she wasn’t a lawyer, but she is the person who made it possible for us women lawyers to become lawyers because initially the law society didn’t want us to become lawyers saying that we don’t have the necessary demeanour. Women are most suited for babies and cooking, this court decision was made in 1923.”
In 2014, TIME included her in its prestigious 100 Most Influential People list. In it, Lamido Sanusi, former governor of the Central Bank of Nigeria, called her “an inspirational example of what African public officers need to be”.
“When I was first told, I wasn’t even here, my team sent me an email to that effect and I thought ‘no, it’s a joke, it’s one of those 419 scams’. I honestly didn’t feel I was among the 100 influential people in the world,” says Madonsela.
Despite her hectic schedule and the expectations placed on her, she begins her day at 3AM with meditation. She spends her free time with her children or reading. Once a year, she goes to the cinema or theater. What she misses lately are her weekend walks with friends. Those have been suspended because of the alleged hit on her.
She is active on Twitter, mostly posting inspirational messages.
“When I meditate and find something inspirational that anchors my thoughts I share it with people. I find that they respond positively. They would say I spoke to what they were dealing with that day. I would share it because it talked to my soul and what I was struggling with on that morning.”
With her tenure in office coming to an end in September, some would like her to be the country’s president. What did she think of it?
“That is sweet of them but I don’t believe that if you’re good at one thing you’ll automatically be good in politics,” she answers.
Madonsela has a light side to her too. She has an eye for aesthetics and fashion. As a child, she used to draw patterns and sew her own clothes; this is the one thing she plans to return to when she leaves office and turn into a business.
She already has big plans. She will be going back full-time to the bar as an advocate in the high court, at the same time teaching law. She has been approached by several universities; she still needs to choose what will be best for her. She also plans to do civic work again and continue to play a part in expanding social justice, particularly for women and people with disabilities, whilst promoting racial reconciliation.
Next year, she will be writing two books, one her story, and another on administrative law, with the aim of making the work of the Public Protector better understood.

Tag: Advocate

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