The Mercury

Protector’s Zille ruling questioned

- Siviwe Feketha

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.

 ??  ?? HELEN ZILLE
HELEN ZILLE
 ??  ?? BUSISIWE MKHWEBANE
BUSISIWE MKHWEBANE

Newspapers in English

Newspapers from South Africa