The SCA has set aside the Gauteng High Court's dismissal of former Western Cape Premier Helen Zille's application to have the Public Protector's report on her controversial colonialism tweets reviewed and set aside, reports News24.

In its judgment delivered yesterday, the SCA said the High Court's decision to decline to review Public Protector Busisiwe Mkhwebane's decision on the grounds of irrationality was ‘erroneous’.

Mkhwebane previously found that Zille's tweets about colonialism was in violation of the Constitution. 

A tweet, sent in 2017, 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.

However, Zille 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.

Justice Mahube Molemela said Mkhwebane ‘applied a wholly subjective approach in terms of which she interpreted the tweets based on what she perceived to be the public's reaction’.

‘The only evidence of the public's reaction in the rule 53 record was a small selection of tweets in the twitter conversation that unfolded and a few newspaper articles. The Public Protector considered Ms Zille's tweets to be similar to the statements published in an article on colonialism, authored by a certain academic from the USA, Professor Gilley, which received widespread backlash. She also included some pictures depicting horrific human rights abuses caused by colonialism. Although Ms Zille's tweets, like Gilley's article, evidently sparked controversy, the contents of her tweets are not the same as those in Gilley's article. Her tweets must be interpreted on their own terms and in their own context.’

Molemela said not every instance of harmful or hurtful speech will result in imminent violence.

She said Mkhwebane failed to consider the context in which the tweets were made, ‘which was that there were lessons that could be drawn from the Singapore experience as it, too, had previously been colonised’.

Molemela added that, despite Zille's tweets having offended some sensibilities, she could not find anything that took her tweets out of the realm of protected speech, reports News24.

Molemela found there was no basis for finding that Zille had ‘violated the provisions of 136 of the Constitution, which enjoins members of the Executive Council to act in accordance with a code of ethics and prohibits them from conducting themselves in a way that is inconsistent with their office’.

Full News24 report

Judgment