[music] I'm Alexander Heffner, your host on The Open Mind.

I'm delighted to record another episode of the series in Munich, Germany, at the One Young World Summit with Thuli Madonsela.

She's a professor, she was the Public Protector of South Africa for many years and a champion of human rights and civil rights during that important transition to democratic rule.

Thuli, professor, thank you so much for joining me today.

It's my honor and privilege, Alexander.

Thank you for having me.

Was that role that you ultimately served in, Public Protector, was that conceived in the Constitution, or was that an idea that came after the conception of the Constitution?

The idea of a Public Protector is an additional layer of accountable democracy as Mandela [inaudible], was part of the Constitution.

In fact, it was in the interim Constitution as well, the 1993 Constitution.

The office itself was not new in South Africa, from '79, the apartheid government had something called the Advocate General, and by 1993 they had renamed it, in the office of the Ombudsman.

The difference was that when democracy took off or the new Constitution wanted the office to have teeth.

And this is once President Nelson Mandela said that even the most benevolent of governments have people with propensities for human failing.

And he did not want to see people having no recourse when their rights were violated.

Hence the Public Protector came up, with the idea of having something that's speedy, that can do conciliation, mediation, plus also make decisions that could be recommendations, which the media gets wrong.

So, the Public Protector can direct or recommend.

So the media says the Public Protector makes binding recommendations.

A recommendation could never be binding.

The Constitutional Court affirmed what I had always argued as Public Protector that when you recommend, like all Ombudsman do, then government has a duty to take you seriously.

But it can deviate.

When you direct, as I did with Nkandla judgment and with Nkandla report in the State Capture report, government has no option but to comply.

If government does not like the decision, it could only go to court to get the court then to set it aside.

In that respect, you had such a unique role, you know, to have the mandate of direct or suggest, as you say.

And yet when you direct, there is a question of constitutionality.

The Supreme Court ultimately will weigh the judiciousness or legality of your direction.

I'm getting that right?

Absolutely, absolutely.

You had that really improbable, and important function of you called it ombudsperson to ombudsmen traditionally in the new Constitution, Public Protector.

But ultimately the President that appointed you was one that you, I don't want to say exposed or investigated as if his mandate or his governance was objectionable or nefarious.

But you were appointed by a person that you could also, investigate might not be the right word, but explore.

Absolutely.

That's true, except I do need to explain the role of the President, the role of the President in appointing the Public Protector is not different from his role in appointing judges.

Because his hands are tied.

He's given only one name by Parliament, if he rejects it, he would have to provide reasons for rejecting it.

But he can't substitute the name with somebody he likes.

So his role is more administrative than powerful.

The powerful structure in the appointment of the Public Protector is Parliament.

You have to get a 60% vote.

I got a 100% vote eventually, some of them didn't like me though, but at the start it was a 100% vote.

It's interesting to think about that 100% vote, because I think about the appointments of some of the US Supreme Court justices, like Justice Ruth Bader Ginsburg and Justice Antonin Scalia, and people who may have become controversial in some sense.

But, at the time that they were appointed in the US, there was a camaraderie and a morale that was consistent in wanting to not veto someone on the basis of partisanship.

And I want to ask you about the state of democracy in South Africa.

If that vote were held today about your serving as Public Protector, would it still be unanimous?

Absolutely not.

I'm certain that the MK party would not vote for me.

-That's President Zuma's party.

-Right.

So I definitely know I would not get the unanimous vote anymore.

So what is the state of our democracy?

We have a very complex democracy, and part of it has to do with the fact that we have had to transform society in line with leveling the playing field, that on its own, just brings incredibly difficult things.

And then, of course, because of the legacy of the past, there's almost an eye of the needle in terms of people rising to the middle class.

I don't think we've done well in broadening access to the middle class.

I think we talk about the middle class, in South Africa with having now some black people.

But if you look at black people, Africans as a group, do you know that the middle class is less than 10%?

So, a good society, like most of your societies, I'm not saying they super good, but maybe using the Nordic countries, the society looks more like a diamond.

A very, very few people to be supported at the bottom and a bulging middle class.

So, we don't have, so that is one of the factors behind corruption.

I'm not excusing corruption, but I would say when it's hard who, hard working people to penetrate through that eye of the needle, there's a tendency for people to find a true cause, but also because of the, the racial legacy, those who want to stay at the top as well, want to stay at the top.

And then if they gonna find collaborators at the bottom who are willing to reek the system, then you get corruption.

You said emphatically, no, you would not get a unanimous vote.

You might not pass through.

This is precisely the point that I was making.

You were doing your due diligence in that role as public protector.

You were not saying President Zuma ought to be ashamed of himself.

You were pointing out, discrepancies, inconsistencies with the policy that you would find to be good governance.

It's not necessarily that these people would oppose you.

It's on in a Partizan affiliation, if I'm understanding correctly, it's because you did your job, you did some investigative work and you didn't indict the president or arrest the president or do anything in a drastic shape.

That's more the reason, not because those people ideologically see things differently than you about public policy necessarily?

Absolutely.

You're absolutely, right.

On an ideological basis or legal basis, they agree on what is the right thing to do.

I just think what I discovered as a public protector was an unwritten mafia code.

You don't touch the family, because I came from the liberation movement.

So people thought that because we had been comrades, I should do my job because President Zuma appointed me, he did say I must make sure that I don't look at who is who I should look at, what are the issues, what happened, what should have happened, is there discrepancy which can't be explained and therefore make a finding?

So he was with me and I kept reminding him, by the way, when I was doing my job, at the end of the day, if they don't appoint me, it would be because they have a grudge that I should have looked the other way.

Now, I want to ask you the question about the entrenched inequity.

Proponents of, the Mandela movement, and the march towards a more civil society would argue that that is not just the morally right thing to do, but the result of that ought to have been that transformation, not just electorally, but economically.

And you're saying very bluntly it didn't happen or it hasn't happened yet.

Is it the corruption?

It's a complex picture.

I think, I would say corruption has played some role in why we have not moved forward.

But it's not the main reason we haven't moved forward.

I just think we rely too much on the law.

And now that I work in Stellenbosch and also collaborate with the THUMA Foundation, we realized that when you reach people's hearts the way One Young World does, for example, people just talk about these things and then you start with storytelling.

Then you find each other in terms of how to move things forward in South Africa, we fail even to look at how apartheid was created.

Apartheid was only named in 1948, but its roots started in 1896 with the clan [name], where only Africans had their land taken away.

The 1913 Land Act, only Africans had their land taken away.

And then when apartheid came, it was just a consolidation.

And they didn't just use the law, they used the church to cultivate that understanding that there are people who are less than they were God's chosen people.

People who have to serve God's chosen people.

In democracy, we relied a lot on the court, and the courts have done incredible job.

The jurisprudence from our courts is celebrated in courts elsewhere.

But you can't change the society only through the law.

Breaking the structural inefficiencies of apartheid would be good for society because instead of having a bus that has six wheels, for example, running on one wheel, you'd have a bus running on six wheels.

But that requires winning the hearts of people and minds beyond the law.

And we didn't do enough of that.

When you say beyond the law, I think you're talking about cultural norms, but also the capitalistic system?

Exactly, social engagement.

But now that you mention the system, I have honestly come to the conclusion that we should have discussed whether capitalism, as it stands, was the vehicle that could contain the democracy [inaudible] our Constitution, the constitution clearly creates social democracy.

If you think about Singapore, Lee Kuan Yew and his people, they thought about what kind of society they wanted.

So they decided it would have some socialist pictures.

I mean, features, some capitalist features.

When I look at our society, I think, When we drafted that constitution, the vehicle to contain our society would be market humanism, which there are features of [inaudible], the features of a market economy, but not unbridled imperialism or capitalism, because that unbridled imperialism has widened the gap between the top and the bottom.

Well, there was an interesting statistic about one company with the lowest paid gets paid 5000 rand a month.

In dollar terms, it's change because we have not intervened in managing that gap between the highest paid and the lowest paid, but again, the law alone is not enough.

Is the law something you see that can be deployed as an instrument to engender that economic fairness?

I think it can, but not only through lawfare or litigation.

I think we have to use the law to have conversations with CEOs, with farmers, with churches, and at Stellenbosch University, we do that.

Earlier on, I spoke about a rigged monopoly game that we play with people, and really, when they get this game, when they realize, okay, we kicked the winning team, we kicked the high performing team, we let this low team play for a longer time.

Now it owns everything.

What then becomes the role of the referee or the umpire?

It has to be rebalancing the scale.

But that's not going to be done in a court of law.

The court of law, we've won all of these cases around equality.

That's going to be done in conversations with CEOs.

In games played, we, looking at, at Stellenbosch University at using gaming as an instrument of transformative pedagogy, because we've found that when people engage with their hearts and their heads, they start saying, okay, I'm not going to do malicious complaints because a lot of people in the industry, they do malicious compliance, we've got BEE laws, employment equity laws, and they would rather set aside money to pay the fines.

-But when we show -Right.

them that the instability they're creating is creating an economy that will struggle with resilience going forward.

And of course, they're just banking pain.

That pain is going to come back to haunt us.

A lot of them get that.

And we got one CEO who has made a decision, we don't believe in a minimum wage.

That's what the company says.

We don't believe in a living wage.

We believe in a just wage.

And that's Woolworths in South Africa, one of the biggest retailers.

And I've been talking to them for years on equity, on social justice, except I'm not going to suggest that they doing that because of me, but I think it's conversations they've heard with people like us at Stellenbosch and THUMA foundation and other, that is let them to understand a good society or an equitable society as you call it, or a fair society is good for everyone now and also in the future.

Right, of course.

And there's that perception connected with interpretations of populism that, when you were advocating for equity, it's a disguise.

It really means that someone is going to be subject to, penalty there is in some segments of the electorate, a lot of skepticism about the notion of equity today, especially when it's the oligarchic class that is talking about climate equity.

And, that is a tension right now.

I myself am challenging, the use of that word and thinking, am I right to be using it?

Is that what I mean?

I like, just, I like, you know, you said just, I think just is a, there is still a lot of opportunity to define what you mean by just and just doesn't send the signal that I think sometimes when elite people deploy, equity just doesn't conform to that same skepticism.

I like what you said.

Just.

We prefer social justice, which is a concept introduced by Catholic Social thought in the 19th century and adopted by the League of Nations after the First World War.

And our conception of social justice is what American philosopher John Rawls called it is fairness to all.

So it should be fair to somebody as rich as Elon Musk and fair to somebody is poor is a seasonal farm laborer.

The splintering of the electorate, specifically the formation of new political parties in South Africa, how do you understand that?

How can you share with our viewers what that has meant?

Well, it's three reasons, one is our Constitution does not put a bound how many parties can you have.

The second reason is people feel none of the parties accurately captures what they want.

For example, we spoke earlier informally about someone who's very good on keen governance and disciplined governance.

But without the transformative piece, then you get somebody who is good on the transformative piece, but not good on disciplined governance and keen governance.

So they trying to find somebody who can put those two pieces together.

But, the third reason, which is the [inaudible] reason.

I spoke about the middle class being an eye of the needle and people then seeing that the only way you can shoot from wherever you are, you can shoot literally from unemployment, to the middle class, is go to Parliament.

People then look at two things, either I form a political party, which means even if I get one seat, I will be employed and I'll be in Parliament.

I'll be one of the highest earning people in South Africa, or I push somebody else to go into government who'll makes sure I get state contracts or tenders.

So either way, everyone tends now to look at politics as the way up in this social and economic scale.

The answer lies in democratizing the economy and making it more inclusive, but also more diversified.

We have a very conservative economy in South Africans.

A lot of things we use upward from elsewhere.

And the CEO of Toyota wrote an article recently in Financial Mail saying something that we've been saying at Stellenbosch University, for almost a decade.

That you need to help people re-claim product production because when the mines were created, they deliberately destroyed the productive capacity of villages because he needed everyone to be smoked out so that they could go and work in the mines, and the big farms.

Now we have an opportunity to regenerate rural areas, but also to expand industrialization.

It would solve a lot of our problems.

Is there a viable way to collect the ideas of all of these new parties into the re-industrialization?

Does someone, the current President or, a new political figure on the outside represent that idea?

I think a whole lot of these parties are talking about industrialization, but they need to put it in their blueprint.

And also that industrialization should be, inclusive.

Where I think they're not focusing is actually regenerating rural areas so that people, more entrance are seen into the middle class, but also pressure on the cities is reduced.

Some grain shoots can be seen in the G20 process that is focusing on matters such as food security and obviously, if you're looking at food security, you'll have to look at what are the factors that are undermining food security now and that what are the factors that will undermine food security in the future, which obviously includes food sovereignty, not just for the country, but food sovereignty for all spaces.

Let's talk about US South African relations, which have been described at a low point.

Is this all emanating from a kind of misunderstanding that is been deployed by President Trump and Elon Musk.

Is that the genesis of this division right now?

Absolutely.

I think there's a misunderstanding around two issues.

One is land redistribution.

The other one is broad based black economic empowerment.

On land redistribution, we have a country where our white population constitutes less than 8% of the population, but owns 70% of rural land and 70% of urban land.

And we know that land is a finite resource.

You can't make more land because people say, let's go for growth and redistribution.

You can't grow land and redistribute it, so you can't grow mines and redistribute them.

Those are finite.

So you've got to look at how do you redistribute these equitably.

And then people say pay market value.

But the Constitution says no, you pay equitable value which will consider market, consider the history of that land and many other factors.

All of this is in Section 25.

I don't think President Trump is briefed on that.

And also, there was just this story about the Zimbabwe approach.

The Zuma approach is impossible in South Africa because all of our instruments are based on the Constitution.

People can just rock up and say, this farm is no longer yours.

In South Africa that's impossible.

The law that has been passed, even the one that talks about the possibility of NIL compensation, it's still going to be negotiations.

And if there's a decision to expropriate, it will only be done by a court of law.

As Mandela was leading.

And you were part of that suffrage movement, the early group of democracy, birthers, founders, were they aware of the severity of this challenge?

The land inequity is there something that you wanted to do about it at an earlier stage of the the new government?

But it just didn't get done and therefore you're in that predicament of the majority owning not just a minority, but a fraction of a minority of the land.

Yeah, I would say in building a constitution, we were dreamers.

But, when it came to statecraft, transformative statecraft, we needed more, because the Constitution basically would say it gives you a large scale map.

Then you need something that is, if I were to use modern language, it would say it's two pixels.

The picture in the Constitution.

And when you now deliver and you have to change people's lives, you needing something like maybe 64 pixels or even more, in terms of the clarity of the picture.

We didn't go to that level of what's the clarity of the picture.

And while it didn't think about human factors, and that the land reform program has been sabotaged by undemocratic processes.

You speak about oligarchies.

As the democracy was unfolding in South Africa, those who had benefited from the reek monopoly game decided to build alliances.

And it's all there in papers that have been written.

So the alliances we, how do we bring some people into the schemes and therefore there will be less appetite for grand scale transformation.

So you see, for example, we had the Equality Act, England came with its Equality Act ten years later, and its Equality Act has been implemented holistically.

Ours, only half of it, the anti-discrimination part, which is dealing with [inaudible] discrimination.

The holistic part where you've got to do an audit of inequalities and deal with it systematically is yet to be implemented.

So what do we need to do?

Talk to people to understand that this imbalance is unsustainable.

It makes the whole country potentially fragile.

My understanding of the impact of the tariffs, it threatened to make that economic disequilibrium even more exacerbated.

It threatens the fiber of the South African economy.

is that in fact the case?

And if it is that there's been, a harsh reality, in response to those tariffs, even though they've been short lived, if that's the case, the appearance is that China and Russia and others are stepping in for a US, South African alliance that other countries are yearning to have a positive economic impact on your country.

Absolutely, it does destabilize us.

But if you go to game theory, it's really a lose lose because then South Africa is looking at decoupling from the US market and find substitutes elsewhere.

Is that actively happening now?

It's happening right now.

So if you go from a game theory point of view -then it's a lose lose.

-Yeah Of course, but you make an important point about what happens now.

It is disruptive because as I speak to you, the way people, new entrants into the wine industry, I come from Stellenbosch and the new entrants don't have very elaborate networks in the US.

So they had just gotten these opportunities and suddenly the tariffs are hitting that.

I think they'll be suffering both in America and in South Africa.

And jobs will be lost in both countries.

But eventually, ultimately, South Africa then will find itself being sucked more into the European market.

And Europe has said, please come here.

And then, of course, we are strengthening our relationship with, the African continent and using the Africa Continental Free Trade Agreement and also consolidating SADC commercial ties.

Does that also risk the longevity of your democracy in an alliance with countries that, at least in the contemporary former, are not free societies, as the US still is?

I mean, even with President Trump at the helm, China, Russia, they do not have fulsome human rights.

You worry about South Africa getting sucked back into a place that denies people civil rights?

I mean, I'm not going to say China is the worst of democracies.

I would just say that you are right, though, that when your children are starving, when it's a question of get quickly markets for the businesses that are losing, which is our agriculture, etc., you may find yourself looking at who's willing to buy on a fair tariff, or no tariffs, and you may choose that.

So yes it may undermine value based relationships and relationships that are based on, shared values around human rights and the rule of law.

Professor, thank you for your insight today.

It's been a privilege.

Thank you, [music] Please visit The Open Mind website at thirteen.org/openmind.

Download the podcast on Apple and Spotify.

And check us out on X, Instagram, and Facebook.

Continuing production of The Open Mind has been made possible by grants from Vital Projects Fund, Alfred P. Sloan Foundation, Ploughshares Fund, Angelson Family Foundation, Robert and Kate Niehaus Foundation, Grateful American Foundation, and Draper Foundation.