Zille launches court battle against public protector

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.

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever. But it comes at a cost. Advertisers are cancelling campaigns, and our live events have come to an abrupt halt. Our income has been slashed.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years. We’ve survived thanks to the support of our readers, we will need you to help us get through this.

To help us ensure another 35 future years of fiercely independent journalism, please subscribe.

Raeesa Pather
Raeesa Pather
Ra’eesa Pather is a Cape Town-based general news and features journalist.
Advertising

ConCourt settles the law on the public protector and interim...

The Constitutional Court said it welcomed robust debate but criticised the populist rhetoric in the battle between Busisiwe Mkhwebane and Minister Pravin Gordhan

Small towns not ready for level 3

Officials in Beaufort West, which is on a route that links the Cape with the rest of the country, are worried relaxed lockdown regulations mean residents are now at risk of contracting Covid-19
Advertising

Press Releases

Covid-19 and Back to School Webinar

If our educators can take care of themselves, they can take care of the children they teach

5G technology is the future

Besides a healthcare problem Covid-19 is also a data issue and 5G technology, with its lightning speed, can help to curb its spread

JTI off to court for tobacco ban: Government not listening to industry or consumers

The tobacco ban places 109 000 jobs and 179 000 wholesalers and retailers at risk — including the livelihood of emerging farmers

Holistic Financial Planning for Professionals Webinar

Our lives are constantly in flux, so it makes sense that your financial planning must be reviewed frequently — preferably on an annual basis

Undeterred by Covid-19 pandemic, China and Africa hold hands, building a community of a shared future for mankind

It is clear that building a community with a shared future for all mankind has become a more pressing task than ever before

Wills, Estate Administration and Succession Planning Webinar

Capital Legacy has had no slowdown in lockdown regarding turnaround with clients, in storing or retrieving wills and in answering their questions

Call for Expression of Interest: Training supply and needs assessment to support the energy transition in South Africa

GIZ invites eligible and professional companies with local presence in South Africa to participate in this tender to support the energy transition

Obituary: Mohammed Tikly

His legacy will live on in the vision he shared for a brighter more socially just future, in which racism and discrimination are things of the past

The best local and international journalism

handpicked and in your inbox every weekday