SCA upholds Zille’s appeal against Mkhwebane’s report on colonialism tweets

The Supreme Court of Appeal (SCA) has set aside, with costs, the North Gauteng High Court’s dismissal of former Western Cape premier Helen Zille’s application to have Public Protector Busisiwe Mkhwebane’s report on her colonialism tweets reviewed.

In a ruling on Monday, Justice Mahube Molemela said in part: “She [Mkhwebane] failed to determine the objective meaning and applied a wholly subjective approach in terms of which she interpreted the tweets based on what she perceived to be the public’s reaction. The only evidence of the public’s reaction in the rule 53 record was a small selection of tweets in the twitter conversation that unfolded and a few newspaper articles.

“An important consideration is that not every instance of harmful and/or hurtful speech will result in imminent violence.32 In this matter, the Public Protector did not take into account the context in which the tweets were made,
which was that there were lessons that could be drawn from the Singapore experience as it, too, had previously been colonised. Without any attempt to objectively interpret the impugned tweets, the Public Protector concluded that
the reaction of those who responded to Ms Zille’s tweets sufficed to indicate the likelihood of Ms Zille’s tweet stirring up racial violence in South Africa. In my view, there was no basis for that finding. Objectively considered from the point
of view of a reasonable reader, the message conveyed by the tweets is that Ms Zille’s perception was that, though bad and unfortunate, colonialism yielded some beneficial aspects.”

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 had found in her report 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.

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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 at the time.

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 Vhahangwele Nemakonde. Additional reporting by Charles Cilliers