Thuli Madonsela, left, and Kevin Malunga. Picture: PUXLEY MAKGATHO
Thuli Madonsela, left, and Kevin Malunga. Picture:PUXLEY MAKGATHO

AMID the scandal and despair that surrounds so many public institutions in SA, the Constitutional Court’s proceedings this week have come as a welcome breath of fresh air.

The undoubted highlight was the breathtaking concession by President Jacob Zuma’s legal team that findings of the public protector are binding unless taken on review. Not only did this fly in the face of Zuma’s protestations over the past year, it was a humiliation for pliant ministers who have fudged fact and law to cover for him.

Given the findings of the public protector’s report on Nkandla, Zuma will now be obliged to repay a reasonable share of the money spent on "nonsecurity upgrades". This conceivably opens a remote possibility that the president could be impeached by Parliament should the African National Congress decide to remove him involuntarily.

More importantly, it has bolstered the institutional authority of the office of the public protector and the Constitutional Court. This positive news raises an interesting question about the robustness of institutional safeguards.

An optimistic view of recent events is that the Constitutional Court and the public protector have been sorely tested but their steel has been tempered by the heat of controversy. Sceptical citizens note that many institutions of public accountability in post-apartheid SA have exhibited exactly the opposite tendency: under pressure to exonerate leaders and executive branch barons, one institution after another has crumbled. The roll call includes almost every parliamentary oversight committee — most famously the select committee on public accounts — and once-promising instruments such as the Scorpions.

A few weeks ago, the Treasury seemed set to lose not just its minister but also many of its key officials. The South African Revenue Service today faces an equally unpredictable future. What explains the ability of some institutions to resist political pressure, or even to deepen their authority when they are under fire?

It is tempting to celebrate Zuma’s about-turn on the finance ministry as a benign demonstration of the disciplining force of the markets. It is true that institutions important to the maintenance of policy stability and to the implementation of appropriate economic policies cannot be trashed without consequences. But the cold calculation of institutional investors can easily be presented as a hostile counter-revolution driven by established white interests and predatory international capitalists.

In much the same way, many activists have tried to vilify the Constitution as the product of a settlement in which the white minority possessed illegitimate bargaining power. Meanwhile, the public protector has been castigated as an instrument of the Democratic Alliance — or even of the US’s Central Intelligence Agency.

Why, then, have recent attacks on these institutions and their leaders not succeeded? Chief Justice Mogoeng Mogoeng, Public Protector Thuli Madonsela and former finance minister Nhlanhla Nene are figures of impeccable personal integrity. They cannot be accused of corruption or malfeasance, and their dedication and determination are evident to all who choose to look. Equally importantly, they are black. In a society with SA’s history, public institutions are likely to enjoy widespread public confidence only when their leaders are able to transcend divisions of race. Such support gives them the authority to soldier on in the face of their detractors, and to resist organised intimidation from the executive branch or from powerful politicians.

The good news of the week, therefore, is that our public institutions may become more widely legitimate, and so more robust and effective, as the racial composition of their leaders and officials continues to change.

• Butler teaches politics at the University of Cape Town