Some sad remnants of the nightmarish tenure of Busisiwe Mkhwebane remain at Public Protector House in Hillcrest, Pretoria. The TVs that she demanded be tuned in to Gupta-linked ANN7, for example, still hover over the reception area. Only, now, they’re dark.
The couches look worn and some tiles are broken. But the briefing room remains unchanged. It’s reminiscent of a school hall with cream walls, a podium, and chairs lining the walls. It’s a vanilla space that belies the history of the room — of the two opposing legacies that loom large over the office charged with protecting South Africa’s democracy.
It is here that Mkhwebane released her controversial and flawed report to change the mandate of the Reserve Bank — a sign of her political allegiance to former president Jacob Zuma and of her legal incompetence, confirmed later through devastating judgments from the higher courts.
It is also here that Mkhwebane’s predecessor, Thuli Madonsela, released her final reports. At the time, in the feverish, dying hours of her nonrenewable seven-year-term in 2016, staff nervously rallied around as her “State of Capture” report became the epicentre of an epoch-defining political battle, with Zuma launching a last-ditch legal bid to have the report canned.
Ironically, it was Mkhwebane who would go on to deliver Madonsela’s very last report.
Its remedial action led to the state capture inquiry chaired by chief justice Raymond Zondo which, in turn, lifted the lid on the extent of the Guptas’ influence over the Zuma administration. It capped an illustrious term for Madonsela, contributed to Zuma’s downfall and uncovered the corruption that had spread its tentacles throughout the state.
But it wasn’t just state capture: from Nkandla to the police lease saga to the Passenger Rail Agency and the Electoral Commission, Madonsela’s findings cemented the office as a crucial bulwark against malfeasance, corruption and state excess.
It is into this charged environment that advocate Kholeka Gcaleka now steps, after her confirmation as public protector by President Cyril Ramaphosa last week.
The question is: will she follow in Madonsela’s footsteps, or Mkhwebane’s?
A rocky road to success
Gcaleka is petite and soft-spoken — a demeanour at odds with just how formidable she can be when defending her views or on the rare occasion that she loses her temper, insiders say. She’s all business when she sits down with the FM after a jubilant surprise party that her staff threw for her confirmation. It wasn’t something she’d expected, having acted in the post for over a year. Still, she is moved.
This is a big moment for the 42-year-old, the youngest person to take up the post and the first deputy public protector to ascend to the top job. She is a single mother, the youngest in a family of six who lost their parents at a young age — her mum when Gcaleka was 16 and her dad when she was 19. She was cared for thereafter by her siblings.
Joburg-born Gcaleka was raised in the Eastern Cape and KwaZulu-Natal, where she went to a convent school before studying law at the University of KwaZulu-Natal. She later rose rapidly in the ranks of the National Prosecuting Authority (NPA) and was a legal adviser to former finance minister Malusi Gigaba.
She says she worked hard to further her career: at 25 she achieved a feat not many young prosecutors working for the NPA could boast, after applying for and obtaining a post in the high court under national director of public prosecutions Bulelani Ngcuka.
She describes the processes behind her promotions in detail, saying she was always encouraged by seniors to apply when promotions arose, which she did, and she excelled in the interview processes at a time when the NPA interview panel consisted only of white men.
By the time Menzi Simelane took over as head of the NPA, she was already acting as an executive.
She’s at pains to make the point, given the chaos around her appointment. Gcaleka won election as public protector by a sliver, a nail-biting 60% vote, only just meeting the required threshold for appointment.
It was a politically charged moment, with DA MP Glynnis Breytenbach booted from the house for insinuating Gcaleka had an “intimate relationship” with Simelane, which led to “speedy promotions” during her tenure at the NPA. The allegation riled Gcaleka’s supporters in parliament, who called for Breytenbach, the former NPA prosecutor-turned-politician, to be sanctioned.
As it turned out, the DA abandoned the vote, as did the EFF, UDM, ATM, COPE and the Pan Africanist Congress. Gcaleka was supported by the ANC, IFP, Good, Al Jama-ah, the African Independent Congress and the National Freedom Party.
Breytenbach wouldn’t be drawn further on the allegation in an interview with the FM, saying she could not reveal more details as “the issue affected many other people”.
Still, she says Gcaleka was the “best of a bad bunch”; she shone during the interview process because the rest of the candidates were “so bad”. She says the DA pushed for the process of appointing a public protector to be restarted because none of the candidates who applied was up to scratch.
Breytenbach believes Gcaleka is simply too inexperienced and will “buckle under pressure”. “She is not an experienced litigator ... she has not demonstrated the ability, maturity or strength to withstand the pressure of that office,” she says.
Gcaleka dismisses Breytenbach’s critique as sour grapes, stemming from Gcaleka’s transformation agenda while at the NPA, where she chaired the Society of State Advocates.
“My views were equality; can we be treated equally? Can black advocates, Indian advocates, coloured advocates be treated the same as white colleagues have been treated? Black advocates, Indian and coloured advocates didn’t even get performance appraisals at the NPA at the time. And this was post-democracy,” she says.
Gcaleka says she carries this sense of justice to this day. In the public protector’s office, she found that white colleagues were not being promoted. It was particularly unfair to one particular individual, Neels van der Merwe, who’d worked in the office since its inception and held a wealth of institutional knowledge, yet was constantly overlooked for promotion. Gcaleka, during her acting stint, finally recognised his contribution by promoting him to a senior manager post.
“And I am still thinking about bringing in more diverse races, because the office is almost entirely black,” she says.
In any event, she is unfazed by the criticism, saying her work speaks for itself.
Embarking on reform
Gcaleka is certainly no stranger to the public protector’s office; she served as deputy public protector from 2020, and has acted in the top job since June last year. She is now moving to make her mark with important reforms — significantly, with proposed amendments to the Public Protector Act that will strengthen the bite of the office.
If passed, the amendments will criminalise noncompliance with the public protector’s remedial action. In essence, it would mean that government departments ignoring the office’s recommendations would be held in contempt — much as is the case now if a party refuses to appear before the public protector once subpoenaed.
She’s not the only one to have raised the idea; it was brought up during the public protector interview process for the post by another candidate, former Scorpions director and advocate Oliver Josie. But four months before that, Gcaleka had announced that greater sanctioning powers were crucial, given the rate of noncompliance with her remedial action.
Though the Constitutional Court has ruled that the public protector’s remedial action is binding, instances where it is ignored are the rule rather than the exception.
As Gcaleka has told the National Press Club, 65% of the office’s remedial action goes unheeded, only 13% is partially implemented, 13% is fully implemented and 8% is taken up on review in court. So criminalising noncompliance would make sense — it would certainly be an incentive for largely reticent government departments to think twice before ignoring remedial action.
“The current state is that we can only enforce our remedial action ... through instituting a civil case,” she says. “We don’t have the money for that ... it’s expensive.”
There’s also the question of which matters the office will litigate. “You know, we can’t do it on all the matters. So now we’ve included a clause that criminalises the nonimplementation of our remedial action.
“We have to be impactful as an institution ... that is how seriously we are taking it, reforms should be instituted by the state.”
Not everyone is entirely on the same page. Lawson Naidoo, director of the Council for the Advancement of the South African Constitution, isn’t sure that criminalising noncompliance is the best legal route. He prefers the idea of civil proceedings — which is similar to the enforcement powers of the auditor-general.
But Gcaleka rails against the glacial rate of reform. She points, for example, to Zondo’s frustration with the slow pace at which his recommendations are being implemented.
“Also, we even have international bodies, such as the International Monetary Fund, which are not happy with how South Africa is embarking on the implementation of governance reforms ... so we believe this is going to break that culture.
“If you look at the work that we do, we come up with governance reforms, if they [government] would actually implement our remedial action, they will do much better, you know, so we want to then enforce that.”
She believes the amendment, coupled with crucial funding recently approved for the office, could make it an even greater force in the fight against corruption, and a deterrent as well.
While resource-constrained public institutions are casting their nets wide as the National Treasury clamps down on state funding due to an unprecedented fiscal crunch, the public protector office has come into some money.
Gcaleka tells the FM that the Criminal Asset Recovery Account — separate from the National Revenue Fund — has approved additional funding for her office. It’s the first time, she adds, that her office has been approved for funding from the account. But it makes sense, given the work it does: the account contains the proceeds of crime that have been recovered by the state through entities such as the Asset Forfeiture Unit.
“So that money is then distributed through applications aimed at anti-corruption institutions, you know. Now, PPSA [the Public Protector of South Africa] has never received it because the argument has been, you are just a Chapter 9 institution, which is not true,” she says.
It’s a point to which she takes great exception.
“The National Development Plan recognises the public protector as a critical partner in fighting corruption. But if you look at the stature of the institution itself, from the power it is given in the constitution and in the act, it envisages investigating malfeasance in the state. Malfeasance actually opens the opportunity for corruption.
“Now, we need as a country to move to a position where we invest more in prevention, rather than after the fact,” she says.
Pushing for reforms that will curb the weaknesses in the state that lead to corruption and looting has greater benefits for the country, too. “If you’ve got a proper governance system and you’re running a proper administration,” she says, “the economy will grow.”
In a strange turn, Madonsela — who epitomised corruption-busting — disagrees. She tells the FM the office was never meant to be a “first port of call” for corruption investigations — it is meant to be a last resort.
It was always tricky balancing the “Gogo Dlamini” cases — those that have a significant impact on ordinary citizens — with the high-profile ones, she says. For this reason, she believes the first line of defence against graft should be a proper, permanent anti-corruption institution — as recommended by Zondo.
Naidoo raises another important point: where political parties abuse the office of the public protector by lodging cases just to make a political point.
“If political parties block up the office with spurious cases, it does undermine the credibility of the office. They have in the past abused that office, they must take responsibility for that, all of them,” he says.
Gcaleka is also pushing for the public protector and deputy, both appointed through a parliamentary process, to take an oath of office. As admitted attorneys and officers of the courts, they have had to take an oath — but it has to go beyond that.
“I think we need to publicly commit ourselves to this task as enshrined in the constitution. So one of the amendments that we are making is that the public protector must take an oath of office. Because, really, there’s a certain level of consciousness that’s required, and commitment that’s required to run this institution,” she says.
While some analysts are surprised that the public protector and deputy don’t take an oath of office, given that they head a crucial Chapter 9 institution, Naidoo agrees that it should be standard practice. Its likely omission, he says, may lie in the fact that the Public Protector Act came into being ahead of the final constitution.
Gcaleka has extended the practice to her staff: they have to sign up to an ethics policy and officials in public protector offices throughout the country have signed an “ethics pledge”. She has set up an internal ethics committee and is in the process of setting up an “ethics hotline” where ethics transgressions can be reported.
“Even before somebody touches a file or receives a complaint, they have to be in a particular mindset ... we now have appointed an ethics committee which is going to assist us to inculcate a culture of ethics and professionalism,” she says.
Gcaleka may be moving forward on significant improvements to the impact and standing of the institution, but there’s an equally sinister monster that needs to be tackled from within.
The parliamentary inquiry into Mkhwebane’s fitness to hold office heard damning testimony about how she treated staff, disciplined those who did not agree with her, victimised and harassed employees, created a toxic work environment and hired dubious, unqualified characters to occupy key posts.
For example, Mkhwebane disciplined and fired a skilled investigator after he had suffered a stroke, putting him through a disciplinary process while he was still ill. He later passed away.
Gcaleka tells the FM that restoring morale was among her key priorities when she stepped into the acting position, and she’s put in place measures to that effect. For example, she has instituted a wellness programme and support for those psychologically damaged by her predecessor’s tenure.
“It even took a physical toll on some of them, so we are dealing with that now. Helping colleagues to heal,” she says.
It seems to be bearing fruit. Addressing a staff meeting last week, CEO of the office Thandi Sibanyoni said that the team had come a long way with Gcaleka. “We started out together as individuals, now we are standing stronger as a team, soon we will be a family,” she said to thunderous applause.
For Madonsela, the employees in the office are crucial to any public protector’s success. To that extent, she is optimistic about Gcaleka’s tenure.
“She has a good head and a good heart which Nelson Mandela always said was crucial for a good leader ... she is also very calm, respectful and professional.”
She offers a word of advice, too: Gcaleka should always leverage the “soft power” at her disposal through persuasion, but at the same time be aware of the “loaded gun” — the enormous powers of her office — behind her.
Beyond politics?
Already opposed to Gcaleka’s appointment, the EFF has questioned her political leanings: she was previously an active member of the ANC Youth League. But she says she quit her political activism 10 years ago to focus on her career.
In any event, as Naidoo points out, political affiliation among public servants is common and cannot be used against her. Few public servants have not at some point in their lives been members or supporters of political parties.
As for Madonsela, she says: “Despite the fact that she was raised in a political family [Gcaleka’s father was part of the black consciousness movement], she strikes me as leaning more towards the side of the law.”
And, she adds, Gcaleka showed that she was blind to political affiliation when conducting her investigations. Two examples include her service delivery investigation in some parts of the ANC-run Eastern Cape, and into the water quality issues in Hammanskraal in the City of Tshwane, now under DA control. In both instances, the political leadership welcomed her report and agreed to implement her remedial action.
But the EFF’s argument against Gcaleka is directly linked to her Phala Phala report, which cleared President Cyril Ramaphosa and found no wrongdoing on his part after his Ntaba Nyoni farm was robbed, revealing that $500m had been stuffed in a couch. (Ramaphosa argued that the cash was the proceeds of a legitimate sale.)
In the EFF’s view, Gcaleka’s appointment smacked of a “quid pro quo” between her and Ramaphosa — that she had cleared him in return for her appointment.
Madonsela, however, has defended Gcaleka’s Phala Phala report, though she admits that the matter has become an emotive issue. “Because of emotions, people don’t look at the final details of the law ... they don’t look at the limits of what the public protector can do,” she says.
The EFF is sticking to the narrative it has created around Gcaleka. It’s ironic, given its flip-flopping around her predecessor. It is Mkhwebane who the party initially dubbed a “spy” aligned to Zuma. Then it did an about-turn and backed her to the hilt — so much so that she recently joined the EFF and has now taken up one of its seats in parliament.
In a further irony, Mkhwebane will sit on the portfolio committee for justice & correctional services — the committee to which the office of the public protector reports, and which agreed to an inquiry into her own fitness to hold that office.
She’s shown herself to be firmly in the EFF camp on the issue, saying her successor will struggle to shed the mantle of being “Ramaphosa’s project”.
Again, Gcaleka shrugs off the noise — from both the EFF and around her Phala Phala findings. After all, they have yet to be taken on review, despite being widely criticised.
“One thing I’ve learnt to accept is that life is not fair,” she says. “So I kind of didn’t expect to be loved by everyone, to be accepted by everyone. One person I worked with used to say: ‘Once you are accepted and loved by everyone, it means you don’t take decisions. It means you don’t stand for anything. And if you stand for something in life, and when you’re not on the fence, some will agree, others won’t. And at other times, it will be the other way around.’”
It’s left her nonchalant about popularity. “I don’t have the same fans all the time, the same constituency all the time. It changes, so that’s how life is,” she says.
She’s not going to let it deter her from making her mark on the office and carving a legacy that is her own, she says.
So far she’s started on a positive footing — intending to strengthen her office, professionalise it and use it to fulfil its mandate.
“What’s important for me is that I can sleep at night with the decisions that I’ve taken. And if yes, then I’m fine,” she says.
If she can get that right, South Africa may sleep better at night too.
Public protector Kholeka Gcaleka is considering bringing back the quirky, tongue-in-cheek naming conventions for reports concluded by her office, a tradition started by former public protector Thuli Madonsela.
Those titles were legendary. Think “Secure in Comfort” — the name given to her investigation into upgrades at Jacob Zuma’s Nkandla homestead. Or the “State of Capture” report on the Gupta family’s capture of the state.
The report on the Independent Electoral Commission (IEC) of South Africa office move saga, which sank then IEC chair Pansy Tlakula, was called “Inappropriate Moves”. And the police building lease saga report, which led to the axing of then police commissioner Bheki Cele, was “Against the Rules”. The follow up was aptly titled “Against the Rules Too”.
The report on tender irregularities at the Passenger Rail Agency of South Africa was “Derailed”, and “Ambulance Ethics” probed a breach of the executive ethics code by former KwaZulu-Natal health MEC Sibongiseni Dhlomo.
Deciding what to name the reports was a source of much debate among investigators in Madonsela’s office, who would mull them and pool their ideas until an appropriate title was found (Madonsela didn’t decide on the names).
But it became a source of major irritation for politicians who, when on the receiving end of one of Madonsela’s investigations, felt slighted by the often cheeky names.
When Busisiwe Mkhwebane took office, she began reorganising staff, shunting aside Madonsela loyalists and appointing her own people to key posts. High on her list of priorities was returning to the old way of releasing reports — the much drier assignation of a number to the report.
Gcaleka is seriously considering bringing back the team-wide effort to name her reports, but she says it can get tricky.
“I think we should, but at the same time we should be very careful. I had an experience when we were doing the Mdluli matter … where the defence said they even named the investigation ‘The Sun Shall Not Set’,” she says with a laugh.
She’s referring to the prosecution of former crime intelligence boss Richard Mdluli during her time at the National Prosecuting Authority, when Mdluli’s defence team used the naming of the probe to argue that the case against him was an “officially sanctioned project”, the Sowetan reported at the time.
Still, while giving names to reports could have unintended consequences, Gcaleka says she is nonetheless keen to try.
“I think we should give life to them, we should give a persona to them, and probably they would have a bigger meaning,” she tells the FM.
— What’s in a name?
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