A number of Insight readers have inquired as to what has happened to the Public Protector’s report of last month. As one puts it: “It seems to have gone off the radar.” We also owe a more detailed explanation to our international readers who have missed all the fun and games of what could be a great plus for constitutional democracy in South Africa or the single biggest constitutional crisis the country has faced.

The Public Protector is a Section 9 institution in the Constitution. These are described as institutions “supporting constitutional democracy”, and aside from the Public Protector include the Human Rights’ Commission, the Auditor-General and the Electoral Commission. The Constitution specifically states that these institutions are “independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their function without fear, favour or prejudice.” Section 9 goes on to describe the powers of the Public Protector as “to investigate any conduct and state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; to report on that conduct; and to take appropriate remedial action.”

The Public Protector’s findings are subject to the Constitution and are reported to the President. Moreover, the law and state legal advisors have no legal authority to tell government what to implement. One constitutional authority has said that: “Failure to implement the Public Protector’s remedial action would be defeating the institution’s purpose of supporting and strengthening constitutional democracy. Leaders in government have a responsibility to act promptly upon the receipt of the Public Protector’s report with a view to ensure administrative justice and accountability.” Moreover, the Public Protector is appointed for a non-renewable period of 7 years. This is therefore a singularly important institution both in terms of the maintenance of constitutional order and public well-being, and in terms of individual rights.

Returning now to the present Public Protector Thuli Madonsela and the issue which has risen, she undertook to examine because of suspicious circumstances and investigative newspaper reports the handling of two lease agreements for the Police headquarters in Pretoria and Durban. She found them improper and invalid and her findings implicated Police Chief General Bheki Cele (incidentally, a close associate of President Zuma) and Public Works’ minister Gwen Mahlangu-Nkabinde in wrong- doing. She gave the Department of Public Works and the Police 30-days to submit action plans to her office and 60-days to implement remedial actions. The report then went to the President.

The initial government reaction to the report and the findings has been disturbing. One leading member of the ANC, and a lawyer at that, publically took the view that parliament as the expression of the will of the people had a right to amend the findings in the report – a view which clearly runs completely counter to the Constitution. It is also a throw-back to 1950s when the nationalist government used parliament to remove coloured voters from the common role, something which the courts at the time had pronounced to be unconstitutional. As far as President Zuma’s response is concerned, on receiving the report he said he needed time to study it.

President Zuma’s initial approach in effect has been to play for time and hope the issue will go away. What seems pretty clear is that he is relying on the time-honoured tactics of delay and distract. In fact, in referring to the Public Protector’s findings and recommendations as mere “allegations".

But it is clear that none of this is going to help him. Firstly, the Public Protector – a truly courageous person - has stood her ground and insisted on her independence and the independence therefore of the report. She has also made it perfectly clear publically that she expects action to come from the President – with the result that he has now publically accepted the report in a letter to Madonsela. What he will do about the findings becomes critical. In fact, his actions or lack of actions could result in a major constitutional crisis.

Secondly, South African newspapers are not going to let the President get away with it. Recently, we had the rather unusual situation of two mainline South African newspapers adopting exactly the same editorial position in their editions on the same day. The Cape Times, under the heading “Inaction Man” introduced its criticism of President Zuma on this issue, claiming “his tenure has been characterised as one of indecisiveness ...... His critics contend that he is held hostage to the internal dynamics of the ANC as he seeks to extend his hold on power.” Commenting further, the editorial said: “The Public Protector’s report presented a test of the President’s will and an opportunity to show intent.” But concluded that he has failed this test. “Instead of any suggestion of decisive action he has vacillated, delegated and avoided taking decisive action.” And Business Day, the other newspaper made a very similar point. Noting that Zuma was accused by the opposition DA of subverting the Constitution “by stealth”, the editorial went on: “Mr Zuma has certainly made himself more vulnerable to this accusation by taking longer than necessary to respond, and then by referring to the Public Protector’s findings and recommendations as mere “allegations” implying that they don’t have to be taken seriously."

I don’t think that is going to happen. As I write, the President in effect has 16 days to act. And one newspaper – The Times of Johannesburg – enterprisingly is counting down the days on its front page. Nothing short of the dismissal or demotion of the two officials will satisfy the Public Protector - and the South African public.