By Lehlohonolo Lehana.
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 its judgment delivered on Monday, the SCA said the high court’s decision to decline to review Mkhwebane’s decision on the grounds of irrationality was “erroneous”.
Mkhwebane previously found that Zille’s tweets about colonialism was in violation of the Constitution.
A tweet, sent in 2017, read: “For those claiming legacy of colonialism was only negative, think of our independent judiciary, transport infrastructure, etc.”
However, Zille argued that Mkhwebane had committed a material error of fact by finding that her tweets were “… likely to cause racial tensions, divisions and violence in South Africa” and therefore were not afforded constitutional protection.
Justice Mahube Molemela ruled in favour of Zille.
The judge said Mkhwebane “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. The Public Protector considered Ms Zille’s tweets to be similar to the statements published in an article on colonialism, authored by a certain academic from the USA, Prof Gilley, which received widespread backlash.
“She also included some pictures depicting horrific human rights abuses caused by colonialism. Although Ms Zille’s tweets, like Prof Gilley’s article, evidently sparked controversy, the contents of her tweets are not the same as those in Prof Gilley’s article. Her tweets must be interpreted on their own terms and in their own context.”
Molemela said not every instance of harmful or hurtful speech will result in imminent violence.
She said Mkhwebane failed to consider 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”.
Media Summary: Premier of the Western Cape Province v The Public Protector & Another (771/2020) [2022] ZASCA 16 (7 February 2022).
Today the SCA handed down judgment upholding, with costs including the costs of two counsel, an appeal against the decision of the Gauteng Division. pic.twitter.com/3WWJYdtHRm— Supreme Court of Appeal ZA (@SCA_ZA) February 7, 2022
The judge said without any attempt to objectively interpret the tweets, Mkhwebane concluded that the reaction of those who responded to Zille’s tweets sufficed to indicate the likelihood of the tweet stirring up racial violence in the country.
Despite stepping down as premier, Zille continued to pursue the case in the interests of defining the scope of freedom of expression, especially for public office bearers.