Zille still heading to court against Mkhwebane despite her no longer being premier

Former Western Cape premier Helen Zille’s legal battle against Public Protector Busisiwe Mkhwebane is still heading for court in September.

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.

Mkhwebane and the Speaker did not oppose her application for interim relief.

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.

She is pursuing the case now in the interests of defining the scope of freedom of expression, especially for public office bearers.

Mkhwebane’s lawyers are likely to argue that Zille’s actions, including her current opposition to Mkhwebane’s report, contradict her public apology for the tweets.

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

Zille, however, wants to defend the importance of “political speech” in South Africa, which is often robust.

The public protector has recently suffered a number of major losses against her reports and recommendations in court, with even the Constitutional Court upholding a costs order of about R900,000 against her.

(Edited by Charles Cilliers. Background reporting by Ilse de Lange)

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