In what is described as 'a politically loaded judgment' slammed by Helen Zille’s lawyer, Fiona Stewart, as ‘very difficult to understand’, Acting Judge Malebo Habedi found Public Protector Busisiwe Mkhwebane was reasonable to find that Zille’s tweets, in which she defended the legacy of colonialism, effectively amounted to hate speech.

According to legal writer Karyn Maughan, Stewart confirmed to Business Day that the former Western Cape Premier will seek to appeal the judgment.

In the ruling handed down in the Gauteng High Court (Pretoria), Habedi dismissed all Zille’s arguments about why Mkhwebane’s report was irrational, legally and factually flawed and should be set aside in language that was often deeply emotional.

Habedi found Zille’s application to review the Public Protector’s report was moot and academic since the remedial action had directed the provincial legislature to take action against Zille while she was still Premier. The judge nonetheless chose to examine and dismiss Zille's arguments.

‘God Almighty please deliver the earth, particularly the Pan African people of Africa and its Diaspora, from this evil called colonialism,’ the judge said after describing graphic images of the horrors of colonialism that Mkhwebane had included in her court papers.

Zille had sought to challenge Mkhwebane’s report on her 2017 tweets, in which she stated that the legacy of colonialism was ‘not all bad’, on the basis that she was exercising her constitutional right to freedom of expression when she posted them.

The former Premier argued that Mkhwebane had committed a material error of fact by finding that her tweets were ‘likely to cause racial tensions, divisions and violence in SA’ and therefore were not afforded constitutional protection.

While Zille argued there was no evidence to support this finding, Habedi said the ‘best evidence in this regard is the angry and threatening tweets that were sent by the public, as a result of which the Premier was forced to apologise’.

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The judge rejected Zille’s version that Mkhwebane had wrongly ‘selected’ tweets in order to compile her report, according to a Cape Times take on the judgment.

‘What is of importance to me is that the Public Protector considered what she termed "key sources of information". These include documents, correspondence sent and received, legislation and other prescripts and case law, and other references.

No proper and sufficient case has been made out that the Public Protector, given the information at her disposal, could not have arrived at the findings she did. Therefore nothing turns on the sufficiency or otherwise of the material before her,’ Habedi said.

He also said Mkhwebane, in her submission, included pictures depicting the horrific human rights abuses caused by colonialism. Habedi extensively commented on the picture depicting the Bengal Famine of 1943, ‘which was the final British-administered famine in India which claimed about three million lives’.

Commenting on that picture, Habedi said: ‘It is gruesome. When I saw it I did not believe that I was seeing a picture with dead people in it. At first glance, it appeared as though I was looking at the dead creatures, but on a closer look, I realised it was dead people whose bodies, because of the vultures on the walls, must have been heavily decomposed… I have in my life seen gruesome pictures, particularly those depicting what happened in the Rwanda and Burundi genocide, Beirut in Lebanon during the wars there, the famine in Ethiopia, but this picture is something else.’

In response to the judgment, Zille said: ‘There was no finding of hate speech. It was decided on "mootness", that is that because I am no longer Premier the matter falls away.’

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Mkhwebane has welcomed the judgment, which follows several adverse rulings that have raised serious questions about her honesty, competence and understanding of her job. ‘... the judge found that the application and determination of issues were moot and academic since the Public Protector's remedial action had directed the provincial legislature to take action against Ms Zille while she was still Premier,’ Public Protector spokesperson Oupa Segalwe said in a statement, according to a News24 report.

‘Judge Habedi noted that, at the time the case was argued in court, it was already obvious that Ms Zille was no longer Premier. Having concluded that the case had been overtaken by events, Judge Habedi still found that Ms Zille failed to establish sufficient grounds for the review and that the Public Protector had properly reasoned her findings and remedial action and that those reasons were sufficient to substantiate the findings.’

The tweet the Public Protector found to be in violation of the Constitution read:

‘For those claiming legacy of colonialism was ONLY negative, think of our independent judiciary, transport infrastructure, etc.’

Mkhwebane found that Zille's conduct was tantamount to improper conduct in terms of the Constitution as well as violating the Executive Ethics Code.

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