Protector’s Zille ruling questioned
QUESTIONS have arisen over Public Protector Busisiwe Mkhwebane’s interpretation of the law in her report that found that Western Cape Premier Helen Zille must face the music over her controversial tweet regarding the benefits of colonialism.
Delivering quarterly reports on concluded investigations yesterday, Mkhwebane said the Western Cape legislature must hold Zille to account for her tweet, which caused public outrage last year.
The public protector investigated the tweet after a complaint was lodged at her office last year by K Magaxa, a member of the ANC and Western Cape Provincial Legislature.
Zille had tweeted: “For those claiming the legacy of colonialism was only negative, think of our independent judiciary, transport infrastructure, piped water etc.”
Mkhwebane said she found Zille’s remarks to be in violation of the constitution and the Executive Members Ethics Code, adding that she was guilty of misconduct.
“The tweet has brought back a lot of pain and suffering to victims of apartheid and colonialism in South Africa. She celebrated the oppression, exploitation, racism and poverty that are the direct results of the legacy of colonialism,” Mkhwebane said.
“She failed to act in good faith and in the best interest of good governance by making such statements. The premier’s action did not comply with what was expected from a person holding the office of the premier of a province.
“She also failed to act in a manner that is consistent with the integrity of the office.”
Mkhwebane said Zille had violated the principles of the constitution.
The report states that while Zille’s tweet was in principle protected in terms of Section 16 of the constitution, which deals with freedom of expression, it was offensive to a section of the public.
The report further said that subsection (2)(b)of Section 16, which states that freedom of expression does not extend to the incitement of imminent violence, was “created to curb such statements”.
Mkhwebane directed Western Cape Speaker Sharna Fernandez to table the report before the legislature within 30 days for it to take action against Zille.
Zille said she would take Mkhwebane’s report on judicial review, describing it as illegal and irrational.
“The premier has not yet received the actual report, outlining the reasons for this finding. However, from what has been announced on television, the premier is likely to take this report on judicial review. The premier has already advised the public protector that, in her view, such a finding would be unlawful and irrational,” her office said.
The DA has previously compelled Zille to apologise unconditionally for the controversial tweet, which she finally did.
Constitutional Law expert Pierre de Vos yesterday on Twitter questioned Mkhwebane’s reliance on Section 16(2)(b) of the constitution in her findings against Zille.
De Vos said the particular subsection was definitional.
“It defines what speech is not protected and can be limited by Parliament. It does not prohibit speech.”
De Vos also tweeted that the public protector did not have the power to investigate infringements of human rights, and this should be done by the Human Rights Commission or Gender Commission.
The DA also questioned the report, accusing Mkhwebane of being reliant on irrelevant sections of the constitution when compiling it.
Parliamentary chief whip John Steenhuisen said Mkhwebane did not give Zille the copy of the report before presenting it to the public.
“Neither the premier nor the party have been provided with the report as required in terms of the public protector’s responsibilities.
“The excerpts that I have seen of it seem to have been once again a complete overreach by the public protector, relying on sections of the constitution that are not relevant,” Steenhuisen said.
Mkhwebane pointed out in her report that by apologising for the tweet, Zille had admitted to her misconduct.
“Her apology can be interpreted as recognition of the negative impact the tweet had on the dignity of a section of the South African population.”
Tomorrow the justice portfolio committee will hear the DA’s request for an inquiry into Mkhwebane’s fitness to hold office.
Steenhuisen said: “We believe she is completely out of depth and must vacate the office of the public protector.”
Both the official opposition and the EFF have argued that Mkhwebane is unfit to hold office due to her alleged proximity to former president Jacob Zuma and his allies.
Recent reports by Mkhwebane have been subject to controversy and judicial review, including the Bankorp/Absa case in which she recommended that the Special Investigating Unit recover more than R1 billion from Absa for an apartheid-era bailout from the South African Reserve Bank.
The North Gauteng High Court set aside Mkhwebane’s remedial action and ordered her to personally pay 10% of the legal costs following a judicial review application of the report earlier this year by the central bank, Absa and the National Treasury.