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Mkhwebane and Zille set to slug it out

Nazi anal­ogy: Pub­lic pro­tec­tor Bu­sisiwe Mkhwe­bane likens Helen Zille’s tweet on colo­nial­ism to ask­ing Jews to ‘look to the holo­caust with gratitude’./Esa Chal­lenge: For­mer DA leader Helen Zille says her re­marks on colo­nial­ism are pro­tected by her right to free­dom of ex­pres­sion, and she chal­lenges the pub­lic pro­tec­tor’s find­ing that she in­ten­tion­ally caused harm and of­fence with her tweets.

Public protector Busisiwe Mkhwebane will square off in court in September with former Western Cape premier Helen Zille over her controversial colonialism tweets, which Mkhwebane insists are “likely to cause racial tension, divisions and violence in SA”.

Public protector Busisiwe Mkhwebane will in September square off in court with former Western Cape premier Helen Zille over her controversial colonialism tweets, which Mkhwebane insists are “likely to cause racial tension, divisions and violence in SA”.

Zille maintains the comments are protected by her constitutional right to freedom of expression.

LEADERS ... SHOULD AVOID STATEMENTS THAT HAVE THE EFFECT OF DIVIDING SOCIETY ON THE BASIS OF THEIR RACIAL EXPERIENCES

While Zille is now out of office and the outcome of her court challenge to the tweet report will have no real consequences for her, the case will undoubtedly be important in defining how the right to freedom of expression does or does not protect political leaders in expressing or tweeting politically contentious views.

The questions her case raises are also at the heart of EFF leader Julius Malema’s argument, which he is seeking to make in the Constitutional Court, that the right to freedom of expression should protect him from facing prosecution for urging his supporters to occupy vacant land.

Mkhwebane’s views on the freedom of expression argument raised by Zille are firm.

“Leaders in her position should avoid statements that have the effect of dividing society on the basis of their racial experiences,” she states in court papers. “There need not be actual scenes of racial tensions, violence and division to support a finding on the potential effects of a divisive and insensitive statement about the painful history of the majority of South Africans,” she says.

Zille is seeking to review Mkhwebane’s findings on the tweets that she intentionally caused harm and offence with her remarks about colonialism and violated both the constitution and the Executive Members Ethics Act.

In heads of argument, Mkhwebane’s lawyers contend that Zille’s legal action contradicts her public apology for her tweets. The tweets included the following: “For those claiming that the legacy of colonialism was only negative, think of our independent judiciary, transport infrastructure, piped water etc.”

“The submissions that she seeks to advance contradicts the official position adopted in the apology of June 13 2017,” Mkhwebane’s lawyers argue.

They contend that Zille cannot, after publicly denouncing her statements as being racially insensitive, now seek to defend them under the constitutional right to free speech.

According to Mkhwebane: “In their ordinary meaning, the public statements [by Zille] meant that colonialism and apartheid were not all that bad because there are some good things that came out of that experience.

“This on its own would be offensive because it is akin to saying to a woman who has suffered rape under colonialism or apartheid that she must look to the good that these diabolical systems of government brought in terms of health care and the criminal justice system.”

The public protector also says: “To suggest that South Africans ought to look to colonialism and apartheid with gratitude is to ask the Jews to look to the holocaust with gratitude.”

IN THEIR ORDINARY MEANING, THE PUBLIC STATEMENTS [BY ZILLE] MEANT THAT COLONIALISM AND APARTHEID WERE NOT ALL THAT BAD

Zille says these accusations are “uncalled for” and “unjustified” and insists that her tweets were never intended to be in praise of colonialism‚ which‚ she stated‚ “subjugated and oppressed the majority in SA and benefited a minority on the basis of race”.

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

Zille, however, maintains that the impact of Mkhwebane’s “irrational” and unlawful reasoning in the tweet report “fails to have any regard to the importance of political speech” in SA.