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Zille takes on Mkhwebane's colonialism tweet report

Public protector Busisiwe Mkhwebane.
Public protector Busisiwe Mkhwebane.

The findings also “unjustifiably limit the right to freedom of expression”‚ she added.

“Sanctioning me for the tweets would have the effects of suppressing free speech‚ as well as the Constitutional right to receive information and ideas‚” said Zille in papers that have been filed at the Western Cape High Court.

“This is indeed indefensible and I do not support‚ justify‚ praise or promote it in any way.”

Zille insists that her controversial tweets were never intended to be in praise of colonialism‚ which‚ she stated‚ “subjugated and oppressed the majority in South Africa and benefitted a minority on the basis of race”.

Zille will go to court later this month to take urgent legal action aimed at blocking Mkhwebane’s finding that the Speaker of the Western Cape legislature should “hold the premier accountable” for her colonialism tweets by July 23.

“The interdict is necessary to prevent prejudice to my office by the provincial legislature’s implementation of the remedial action‚ which I contend is unlawful‚” Zille said in her court papers.

“The remedial action directs the provincial legislature to ‘hold the premier accountable’. The open-endedness of this remedial action exacerbates the potential prejudice to me – it is unknown and unpredictable as to what sanction the provincial legislature may impose in response to the remedial action.”

Zille is seeking to review and overturn Mkhwebane’s report on her 2017 tweets‚ which she began by stating: "For those claiming that the legacy of colonialism was only negative‚ they should look at various aspects of South Africa's development‚ such as the judiciary and other infrastructure.”

In court documents‚ Zille says that tweet was part of a series in which she commented on Singapore – a country which had a history of colonialisation – and was a response to tweets stating that there was nothing positive about colonialism.

She denied the accusations made in a complaint to Mkhwebane by ANC Western Cape legislature member Khayalethu Magaxa‚ in which he stated that Zille “celebrated the oppression‚ exploitation‚ racism and poverty which are the direct result of the legacy of colonialism”.

“It was explained that the tweets‚ read in context‚ expressed my view that in spite of the overall negativity of colonialism‚ its legacy has nonetheless left us with some benefits‚” she states in court papers. “I did not state‚ and do not believe‚ that colonialism is worthy of celebration.”

The public protector was not convinced. “Although the tweet could have been made in the context of the premier’s right to freedom of expression … it was‚ however‚ offensive and insensitive to a section of the South African population‚ which regarded it as a re-opening of a lot of pain and suffering to the victims of apartheid and colonialism‚ particularly considering the position of influence she holds‚” Mkhwebane stated in her report.

“Section 16 of the Constitution therefore was not created to allow anyone‚ particularly those in positions of influence‚ to make such statements.”

She added: “The reaction of the South African public towards the premier’s tweet is indicative of the likelihood that such tweets stirring up violence based on race and is therefore a contravention of subsection 16(2)(b) of the Constitution.”

In her report‚ Mkhwebane held that Zille had breached the Executive Members Ethics Code and the Constitution. She further found that the tweets constituted “improper conduct” in terms of the Constitution.

Zille argues that such findings are not legally sound. “Simply put: there is no evidence that my tweets provoked violence or the threat of violence. They provoked emotive debate. That is not unlawful. On the contrary‚ it lies at the heart of the right to freedom of expression.”

Mkhwebane said in her report that the Speaker of the Western Cape legislature must‚ within 30 days of the report’s release‚ table it before the legislature “for it to take appropriate action to hold the premier accountable” according to the Constitution.

In an affidavit‚ Zille said she informed Mkhwebane’s office that she intended to challenge the public protector’s findings‚ and asked that the remedial action be stayed pending that review. Mkhwebane refused‚ prompting Zille to urgently seek to interdict the Speaker from carrying out this order.

Mkhwebane has yet to file a response to Zille’s court action. Her office said that she “welcomes” Zille’s review application as “this matter will finally be adjudicated in a court of law wherein the court will make a determination. The public protector is studying the court papers.”

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