SCA sets aside public protector's finding on Zille's 'colonialism' tweets

The Supreme Court of Appeal on Monday set aside the public protector's finding that former Western Cape premier Helen Zille had breached sections of the executive ethics code.

The finding by the public protector followed tweets about the impact of colonialism on SA made by Helen Zille while she was premier of the Western Cape. 

In a series of tweets, in March 2017, Zille shared her reflections at the end of her official trip to Singapore. She said there was much to learn from Singapore, which was colonised for as long as SA.

She said Singapore had no natural resources and 50 years ago was poorer than most African countries. “Now they soar. What are the lessons?” she asked.

“I think Singapore lessons are: 1) Meritocracy; 2) multiculturalism; 3) work ethic; 4) open to globalism; 4) English; 5) Future orientation [sic].”

She listed other reasons for Singapore’s success as: “Parents take responsibility for children, and build on valuable aspects of colonial heritage.”

This tweet elicited angry responses on her Twitter feed.

The next day, Zille tweeted: “I apologise unreservedly for a tweet that may have come across as a defence of colonialism. It was not.”

A complaint about the tweet prompted the public protector to investigate.

In her report released in June 2018, the public protector said Zille’s tweets were likely to cause racial tensions, divisions and violence in SA. The public protector said Zille's conduct was in violation of sections of the executive ethics code.

She recommended that the Western Cape legislature take appropriate action to hold the premier accountable.

Zille approached the high court in Pretoria to review and set aside the findings of the report, but the court declined to review the decision.

Zille then sought and was granted leave to appeal to the SCA.

The public protector did not oppose the appeal and a letter from her attorneys informed the SCA that she would abide by the SCA’s decision.

No heads of argument were submitted on behalf of the public protector and only Zille’s counsel made oral submissions in the appeal.

In its judgment, the SCA said had the public protector correctly interpreted section 16(2)(b) of the constitution, she would have embarked on a proper investigation of whether, in making the tweets, Zille intended to incite violence and whether the existence of imminent violence was shown.

The section states that the right to freedom of expression does not extend to incitement of imminent violence.

“The public protector did not engage in that exercise,” judge of appeal Mahube Molemela said in a unanimous judgment of the full bench.

Molemela said she was of the view that the public protector’s conclusion that the tweets did not fall under the category of protected speech, and her erroneous finding that section 16(2)(b) was implicated, were factors that pervaded her reasoning and led her to wrongly conclude that the ethics code was breached.

The court ordered the public protector to pay the costs of the appeal, including the cost of two counsel.

She said even though the remedial action recommended by the public protector fell away because Zille was no longer premier, Zille was still entitled to persist with the appeal to have the baseless findings reversed and the high court’s order set aside.

“It matters not that the public protector abides the decision of this court. The appeal resulted from the findings made in the public protector’s report against Ms Zille.

“There is therefore no basis for a departure from the general rule that costs follow the result.”

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