Zille loses colonialism tweets case against Mkhwebane, with costs

Helen Zille and Busisiwe Mkhwebane.

The former Western Cape premier decided to keep arguing the case in court despite stepping down from public office.

Public Protector Busisiwe Mkhwebane on Tuesday welcomed a decision by the Western Cape High Court that found against former Western Cape premier Helen Zille, who is now the DA Federal Council chairperson.

Zille’s application against Mkhwebane’s findings and recommendations, from when Zille was still the premier, were dismissed by the court.

Acting Judge Malebo Habedi said Zille would have to pay the costs of the case, up to the point that she left office. He acknowledged, however, that the findings and recommendations were now moot, since Zille is no longer a public office bearer and cannot be acted against by the Western Cape Legislature.

He ruled that Zille had nevertheless not established sufficient grounds to argue her case successfully.

The public protector said she was pleased with the outcome and noted that this was now the third time she had successfully defended one of her reports in court.

She called on executive office bearers to take the time to understand the Code of Ethics and the Executive Members Ethics Act.

In July last year, Zille obtained an urgent interdict suspending Mkhwebane’s directive that the Speaker of the Western Cape legislature should “take appropriate action” to hold her accountable for her controversial tweets about colonialism.

Judge Norman Davis granted an order interdicting the Speaker from implementing the remedial action recommended in the Public Protector’s report of 11 June pending the final determination of Zille’s application to review and set aside Mkhwebane’s findings and remedial action.

The Public Protector’s report had followed a complaint by an ANC member of the Western Cape provincial legislature, Khayalethu Magaxa, about Zille’s tweets concerning colonialism on her return from a trip to Singapore in 2017.

In one of the tweets, Zille stated that “for those claiming legacy of colonialism was ONLY negative, think of our independent judiciary, transport, infrastructure, piped water etc.”

Mkhwebane found that Zille had violated the Constitution and the Executive Ethics Code and that her tweets brought back a lot of pain and suffering to victims of apartheid and “celebrated the oppression, exploitation, racism and poverty which were the direct result of the legacy of colonialism”.

She found that the tweets divided society on racial grounds, were offensive and insensitive to a section of the South African population and were likely to cause racial tensions, divisions and violence in South Africa.

In court papers, Zille vehemently denied that the tweets could be interpreted in the way Mkhwebane and Magaxa did and said the tweets, read in context, expressed her view that in spite of the overall negativity of colonialism, its legacy had nevertheless left the country with some benefits.

“I did not state, and do not believe, that colonialism is worthy of celebration … I recognise that colonialism and apartheid subjugated and oppressed the majority in South Africa and benefited a minority on the basis of race.

“This is indeed indefensible and I do not support, justify, praise or promote it in any way.”

Zille said she had apologised unreservedly after realising that her tweets had been misunderstood and unwittingly caused offence, but insisted that she was entitled to make the tweets in the exercise of her right to freedom of expression.

Zille maintained the public protector’s findings were unjustified and unlawful and they would have a chilling effect on freedom of expression and political speech in the country if her remedial action were implemented.

“It is no exaggeration to say that our democracy, and the culture of vigorous and open dialogue and debate that is vital to sustain it, will be harmed by the implementation of the Public Protector’s remedial action,” she said.

Despite stepping down as premier, she continued to pursue the case in the interests of defining the scope of freedom of expression, especially for public office bearers.

Mkhwebane’s lawyers argued that Zille’s actions, including her opposition to Mkhwebane’s report, contradicted her public apology for the tweets.

In their heads of argument, they contended that Zille could not both denounce her own tweets as racially insensitive and attempt to defend them under freedom of speech laws as enshrined in the constitution.

(Compiled by Charles Cilliers)

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