Judgment has been reserved in an appeal by former Western Cape Premier Helen Zille against a Gauteng High Court ruling over a tweet on colonialism.
Zille approached the Supreme Court of Appeal after the High Court declined to review and set aside the Public Protector Busisiwe Mkhwebane’s report and remedial action against her.
The court argued that Zille was no longer premier and could no longer be sanctioned by the Provincial Legislature.
One of Mkhwebane’s findings was that Zille contravened the Executive Code of Ethics.
Mkhwebane also recommended that the legislature should sanction Zille at the time. Supreme Court of Appeal Presiding judge in the matter Justice Ian Van Der Merwe questioned Zille’s legal representative Sean Rosenberg about protected speech of a political nature against the Code of Ethics.
“Justice Van der Merwe asks: Coming back to the point that Justice Schippers also made is also relevant to ask oneself whether protected speech of a political nature even though its offensive can be inconsistent with political office. Rosenberg responds: Protected speech of a political nature one could conceive of examples where section 16(2) doesn’t come into play. And yes you could conceivably apply a standard when having regard of the executive Ethics Code for example. And so one can’t exclude that but I would emphasise that any construction of the Ethics Code must be properly respectful of the kind of values that I have emphasised a moment or two ago.”
Justice Nolwazi Mabindla-Boqwana also questioned Rosenberg on protected speech against the role of Zille as Premier.
“Can we have a situation where the speech is nevertheless inconsistent with the office of the person within the executive? For instance, a statement that says in one of the tweets: ‘Would we have had a transition into specialise healthcare and medications without colonial influence just be honest please?’. So in the context of that whilst we could have protected speech, is it conceivable that you might also in any event have a speech that is not consistent with the office that the person holds?”
Rosenberg responded
“One should be in fact very cautious before construing provisions of the Executive Code, broad provisions such as this regarding the conduct and acting in good faith and acting in a manner inconsistent with the integrity of government. One should be very careful before moving in to conclude that political debate might fall foul. Yes, it does fall foul. Yes to answer the question in principle one can conceive inappropriate entirely unwarranted speech that is made in a context that it isn’t made in good faith and serves no public purpose. It might be protected speech but it might be hit by the Ethics Code.”
Justice Mahube Molemela asked Rosenberg to respond to some of the findings of the Public Protector that Zille’s tweet about colonialism sowed racial divisions.
Justice Molemela,”When you look at the tweets objectively, they in fact sowed division, I mean that’s in fact what the Public Protector alleges among other things. Let us forget about the finding that they are intended to cause violence and so forth. But in one of the findings, she especially finds that they undermine her [Zille’s] position and cause racial division in a country where there already are perceptions of racial disunity. I am just interested in your submissions in relation to that.”
Rosenberg told Justice Molemela that Zille’s tweets were not meant to offend anyone but generated public debate.
Rosenberg, “We say in paragraph 69 of our heads that the tweets were made in good faith without any intention to cause any offence. There was no suggestion otherwise. We say that the tweets did not undermine good governance in any way and that in one of the code standards that were raised. The tweets in our submission provoked legitimate public engagements. Persons who disagreed with the views that the premier expressed with freedom to express their views as they did. Likewise, the premier was entitled to respond to the views. The tweets didn’t undermine the integrity of the office of the Premier or the government and the Premier didn’t act inconsistently with her office by making her tweets. When one has proper construction of the tweets, they don’t support a conclusion as the Public Protector appeared to find that the Premier celebrated oppression exploitation, racism, poverty as the direct legacy of colonialism.”
Rosenberg also sought relief for punitive costs against the Public Protector despite Mkhwebane not opposing the appeal. He gave one of the reasons why Mkhwebane still has to pay the costs.
“The appellant [Zille] was obliged to come to this court to set aside the finding of the court below which had been defended by the Public Protector. The fact that the Public Protector in fact withdrew her opposition after filing of heads in this matter really doesn’t detract from the fact that the appellant is entitled to its cost of prosecuting this appeal and the costs for the day. The same factors apply with regard to this scale. I have got nothing to add.”
Judgment has been reserved.
In the video below Mkhwebane states that Helen Zille is to be held accountable for her colonialism tweet:
