Former Public Protector Thuli Madonsela’s ‘Secure in Comfort’ report on the security upgrades at former President Jacob Zuma’s Nkandla residence was a watershed moment in holding the executive to account, and has a lot to do with events playing out now.

So says senior journalist Ranjeni Munusamy, adding that the President’s violation of the Constitution and the Public Protector’s determination that Zuma should pay back ‘a reasonable percentage’ of the cost of the non-security upgrades was eventually resolved by the Constitutional Court, which declared that the Public Protector’s remedial action is ‘binding’.

In his unanimous 2016 judgment in EFF v Speaker of the National Assembly and Others; DA v Speaker of the National Assembly and Others, Chief Justice Mogoeng Mogoeng said the Public Protector ‘must have the resources and capacities necessary to effectively execute her mandate so that she can indeed strengthen our constitutional democracy’.

He went on to say: ‘If compliance with remedial action taken were optional, then very few culprits, if any at all, would allow it to have any effect. And if it were, by design, never to have a binding effect, then it is incomprehensible just how the Public Protector could ever be effective….’

In an analysis in Business Day, Munusamy argues that it is that judgment that strengthened the office of the Public Protector, and the reason the incumbent, Busisiwe Mkhwebane, is able to demand immediate compliance from President Cyril Ramaphosa regarding her remedial action against Public Enterprises Minister Pravin Gordhan.

Now it is the President who is seen as a credible and upstanding figure while the Public Protector is widely viewed as a tool of a political faction in the ANC and incompetent at her job. Whereas society celebrated the strengthening of Madonsela’s hand in 2016 to ensure the enforceability of her remedial action, those same powers in Mkhwebane’s hands are now viewed as menacing.

Munusamy adds that the conundrum now is not so much due to the Public Protector’s powers but rather because the politicians chose a person who does not meet the high standards required for that position.

Parliament is now in for a messy battle about how to contend with a Public Protector who has several damning judgments against her and whose competence has been called into question repeatedly. As fate would have it, it is likely that the Constitutional Court will again deliver a judgment that will decide the fate of the Public Protector by making a parliamentary hearing into her fitness to hold office inevitable.’

Full analysis in Business Day

EFF v Speaker of the National Assembly and Others; DA v Speaker of the National Assembly and Others