Deputy public protector Kevin Malunga on Mkhwebane & his successor

Kevin Malunga sits up straight in his chair. “You know how powerful the position of deputy public protector is?” he says, exuding enthusiasm. “You can summon anyone and ask them questions. Even the president.”

By mid-December, Malunga will be out of this powerful position after serving for seven years. His tenure has been under two public protectors, advocates Thuli Madonsela and Busisiwe Mkhwebane.

What attracted the 45-year-old advocate to the job in the first place was its considerable impact and the opportunity it provides to make a difference.

“All levels of state are accountable to you,” he says. “You have oversight of 1,000 organs of state at national, provincial and executive levels. You are talking about statutory bodies, municipalities, and state-owned enterprises … the net is very wide.”

Before his appointment in December 2012, Malunga was a state law adviser for the department of justice and was involved in setting up the Marikana commission of inquiry led by judge Ian Farlam into the killing of 34 miners by police in August 2012.

Malunga says he saw first-hand what an irresponsible state could be capable of. “I am convinced, as one of the people active in the starting of the commission, one of the pioneers of the commission, that there was a disproportionate use of force by the state. They should have not behaved like that.”

FROM LOW PROFILE TO CENTRE STAGE

Becoming Madonsela’s deputy extended his abilities to hold the state accountable in all instances of wrongdoing.

“I was expecting to keep the state on its toes,” he says.

When he joined the office of the public protector it did not have nearly the popularity it now has. It was “just” a chapter 9 institution trying to hold the state accountable on behalf of the public, he says.

But Malunga’s quiet honeymoon soon erupted into a political storm when Madonsela began her investigation into overspending at former president Jacob Zuma’s Nkandla homestead.

“Nkandla became a political football,” he says, recalling the experience. “The report is released, then you have ‘pay back the money’ and the office becomes highly politicised. More than ever before.”

The Nkandla report, which found that Zuma had benefited from the state’s irregular security upgrades to his personal home, led to some politicians attacking the office of the public protector.

Malunga finds it ironic that many politicians who now disown Zuma “were vociferous in attacking this office” at the time.

Fast forward to 2016 and the Constitutional Court delivered its groundbreaking judgment affirming the powers of the public protector to be binding.

In handing down this historic ruling, chief justice Mogoeng Mogoeng said: “The public protector is thus one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in state affairs and for the betterment of good governance.

Malunga remains loyal to his office, however, saying of Mkhwebane only that they have 'a good working relationship'

"She is the embodiment of a biblical David — representing the public — who fights the most powerful and very well-resourced Goliath — impropriety and corruption by government officials.”

Malunga describes the office as: “A gift given to SA by the constitution.”

While the high-profile cases grab the headlines, Malunga points out these make up less than 1% of what the institution does.

“Bread-and-butter issues that concern the ordinary person are the bulk of what we do,” he says, echoing Madonsela’s statements in her outgoing interview three years ago. He agrees, however, that the high-profile cases set the tone for how people respond to the public protector’s work.

Malunga’s busiest years in the post were those as Madonsela’s deputy.

“I had more of a responsibility,” he says of his initial role. “I did lots of investigations and I led the biggest branch of the office of the public protector — administrative justice and service delivery.”

THWARTED BY ZIMBABWEAN ORIGINS

When Madonsela’s tenure ended, Malunga threw his hat in the ring for the top job. Despite being the frontrunner to take over from her, he was disqualified because his place of birth — Bulawayo — meant he could not get the required security clearance for the job.

“I am a legally naturalised citizen of SA,” he says. He is often criticised for being “a foreigner” but says this doesn’t bother him. “According to the law, I am a South African. So xenophobia does not upset me.”

The parliamentary committee that disqualified him for the job picked Mkhwebane to succeed Madonsela. She has subsequently faced sharp criticism, including from Mogoeng and other judges, and has been embroiled in controversy.

The tension between Mkhwebane and Malunga was on display in parliament recently when she told parliament that Malunga was being kept out of investigations conducted by the public protector’s office because of security concerns.

Madonsela had also relegated him to administrative work, Mkhwebane claimed. Both Malunga and Madonsela have denied this.

Malunga remains loyal to his office, however, saying of Mkhwebane only that they have “a good working relationship”.

When pressed, he admits that his being kept out of high-profile investigations that have since been attacked by various judges is a sign of dysfunctionality in the office of the public protector, but it is clear that he does not like talking about the controversy surrounding Mkhwebane. “I would prefer to stay in my lane,” he says.

When it comes to the contentious reports in question, such as those involving public enterprises minister Pravin Gordhan and President Cyril Ramaphosa, he says he washes his hands of them because he was not consulted during their preparation.

“I plead ignorance because I was not approached,” he says. “If two people have breakfast somewhere without you, they cannot ask, ‘Why didn’t you come for breakfast?’ if you were not informed that there was breakfast.”

MORE PAIR OF EYES REQUIRED

Malunga has suggestions on how to do things better. He recommends the reinstatement of quality-control mechanisms, a system Mkhwebane scrapped when she took office.

“It’s something that must be fixed the next time around,” he says. “I would certainly put in place a tight quality assurance mechanism, including bringing back the think-tank exercise we used to have where we used to put reports up for everyone — people from all the provinces — to scrutinise and poke holes in.”

Reflecting on his tenure, Malunga sees the highlights as his passion for the protection of whistleblowers, and his enthusiasm for mediating between organs of state and ordinary people who can’t afford lawyers.

He has found his work most rewarding when he has been able to help members of the public get the justice they deserve. This, he says, is what he will miss. He is uncertain what the future holds but will continue his efforts against corruption and in support of whistleblowers.

As he clears his workload, Malunga is adamant that the position of deputy public protector must not be taken lightly. He says his replacement “must not be a coward and must not be star-struck by politicians”.

He says his replacement 'must not be a coward and must not be star-struck by politicians'

He believes that the deputy public protector has no business going to politicians’ parties or being overly buddy-buddy with political or government leaders.

“You have got to be a person of very strict principles,” he says. “Don’t take gifts that will come back to bite you.

You can’t have a situation where they buy you dinners, they buy you whisky, you go to their parties.

You don’t do that in this role. I have a very polite and somewhat good relationship with people in the state but I will not be seen at their houses or at their parties.

“When the [justice] committee appoints my successor, they must get a bright, tough lawyer who will advise the public protector.”

The job can be exciting and depressing in equal measure, he says. He has been faced daily with the state’s underbelly of corruption and maladministration.

“It is a powerful position,” he repeats with emphasis. And whoever steps into his shoes must do it wisely.

CANDIDATES FOR THE DEPUTY PUBLIC PROTECTOR POSITION

• Sonwabile Mancotywa is a former CEO of the National Heritage Council. The Mthatha-born lawyer graduated from the University of Transkei in 1991 with a BJuris and LLB.

•Shadrack Nkuna works in the Public Service Commission as a deputy director of public administration investigations. He previously worked with the Hawks as a specialist commercial investigator from February 2011. He holds a master's in corporate law from the University of Pretoria.

• Noxolo Mbangeni is an advocate at the Cape Bar and specialises in commercial law. She was appointed a small claims commissioner, then a tax commissioner until 2023.

• Lwazi Kubukeli has been a member of the Bhisho Society of Advocates since 2010. He specialises in public administrative law and land tenure law. Before that, he was a member of the Cape Bar. He had military training in Angola in 1986 with Umkhonto weSizwe.

• Puleng Matshelo has been a practising advocate since 2016, serving at the Johannesburg Bar and later at the Pretoria Bar. Before that she worked in the department of justice as the acting chief director for research. She worked as a senior state advocate from 2008 until 2014.

• Buang Jones holds a master's degree in corporate law, which he obtained in 2016 from Unisa. He obtained an LLB in 2007. Jones is the provincial manager and head of legal services for the South African Human Rights Commission, a position he has held since July 2016.

• Kholeka Gcaleka is a former special adviser and senior state advocate. She previously worked as a senior deputy director of public prosecutions and was admitted to the Johannesburg Bar in 2006. Gcaleka is a member of the Black Lawyers Association.

• Moshoeshoe Toba has worked at the South African Revenue Service and the National Prosecuting Authority. He has experience in litigation, research and analysis. Toba holds an LLB from the University of the Free State and is an attorney.