Zille launches court battle against public protector

Western Cape Premier Helen Zille. (Delwyn Verasamy/M&G)

Western Cape Premier Helen Zille. (Delwyn Verasamy/M&G)

Western Cape Premier Helen Zille has launched her court bid to take public protector Busisiwe Mkhwebane’s report on judicial review and, in doing so, the controversial leader has once again defended her infamous tweets on colonialism.

Following a trip to Singapore in 2017, Zille took to Twitter to express how colonialism had helped the southeast Asian nation prosper, detailing how the legacy of colonialism on South Africa had been positive.

“What a revelation Singapore has been. I can see why it prospers. Ppl understand the past but work in the present and plan for the future,” she tweeted.

“For those claiming legacy of colonialism was ONLY negative, think of our independent judiciary, transport infrastructure, piped water etc,” she said in response to South African critics.

Zille’s case relies of the constitutional right to freedom of expression.
Mkhwebane found in her report, dated June 11, that Zille had violated the Constitution and the executive ethics code because of public comments she made on the legacy of colonialism. 

The premier is seeking to interdict Mkhwebane’s remedial action from being implemented. Zille has also applied to the court for the findings and remedial action to be reviewed and set aside.

In her report, Mkhwebane found that Zille’s tweet constituted an imminent threat of violence, and thereby violated Section 16(2)(b) of the Constitution. The section states that freedom of expression is protected in South Africa, unless it includes propaganda for war, threat of violence, or inciting hatred for a group of people that would would provoke harm.

In her founding affidavit on July 3, Zille refutes Mkhwebane’s claim that she breached the Constitution, describing her tweets as an “act of public dialogue”.

“My tweets did not demean, degrade or marginalise any person’s intrinsic worth as a human being, their humanity or dignity. To the contrary,  the tweets inspired a frank and open debate: this act of public dialogue and debate is itself constructive of human dignity and moral agency,” Zille said in her affidavit.

She also said that the public protector did not have evidence to indicate that her tweets incited violence of led to any person feeling physically threatened.

Her tweets also did not infringe on her duty to act in the interests of good governance — as envisioned in the executive ethics code, because they “did not undermine good governance,” she said.

Sorry not sorry

In her court papers, Zille acknowledges that her views on colonialism caused offence to many in South Africa. She was forced to apologise by the Democratic Alliance after the party determined that she had breached its social media rules. She was also suspended from party activities.

Despite the ruling made against her by her own party, Zille’s views on the subject remain unchanged.

“... In spite of the the overall negativity of colonialism, its legacy has left us with some levers that can be repurposed to eradicate oppression, exploitation, racism and poverty — in a way that Singapore has succeeded in doing,” she said in her court papers.

She further added that the apology she made to South Africans was because they had misunderstood her tweets. It was not admission of guilt, she said.

“My apology was tendered to deal with any possible misconception that the tweets amounted to a justification of colonialism, which misconception was entirely unintentional, as an objective reading of my tweets will show. As appears from the express terms thereof, my apology did not constitute an admission that I had infringed the dignity of persons,” she said.

Legal experts, meanwhile, have weighed in on Mkhwebane’s report on Zille, saying the public protector misapplied the law in this matter.

“While many South Africans were offended by Zille’s tweets, the tweets certainly do not constitute the form of hate speech which the Constitution proscribes in Section 16 of the Bill of Rights,” Phephelaphi Dube, director of the Centre for Constitutional Rights, told News24. “In terms of the Constitution and the Public Protector Act, the Public Protector is tasked with investigating improper conduct, in both state affairs and public administration. The Human Rights Commission in this regard is better suited to investigate alleged infringements of the Bill of Rights.”

The public protector is facing criticism over the number of reports that have been taken on judicial review since she was appointed to the office. In total, Mkhwebane’s office has spent at least R15-million defending reports that have been taken on review.

Ra'eesa Pather

Ra'eesa Pather

Ra’eesa Pather is a general news journalist with the Mail & Guardian’s online team. She cut her teeth at The Daily Vox in Cape Town before moving to Johannesburg and joining the M&G. She's written about memory, race and gender in columns and features, and has dabbled in photography. Read more from Ra'eesa Pather

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