Public Protector Busisiwe Mkhwebane. Picture: SUNDAY TIMES
Public Protector Busisiwe Mkhwebane. Picture: SUNDAY TIMES

Public protector Busisiwe Mkhwebane insists that Western Cape premier Helen Zille intentionally caused harm and offence with her controversial colonialism tweets which she says were “likely to cause racial tension, divisions and violence in SA”.

“Leaders in her position should avoid statements that have the effect of dividing society on the basis of their racial experiences,” Mkhwebane stated in court papers in response to Zille’s legal challenge to her tweet report.

“There need not be actual scenes of racial tension, 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 said.

Zille is challenging Mkhwebane’s findings and remedial action in the report that has found that Zille’s tweets are “likely to cause racial tension, divisions and violence in SA”. She found also that the constitution, which upholds the right to freedom of expression, was “not created to allow anyone, particularly those in positions of influence, to make such statements”.

“It is correct to say that section 16 was not created to enable public officials to exercise their rights in a manner that is racially divisive and likely to cause racial violence.”

At this stage, it is unclear if Mkhwebane is investigating any other political or government leaders for fuelling racial division and/or inciting violence with public utterances or tweets. She is holding a press conference on Wednesday, in which she is expected to release several reports, including the outcome of another investigation into Zille.

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

“The effect of her approach is to chill public debate between public officials and the citizens they serve”, she says.

While Mkhwebane’s application of the law in her Zille report has come under fire from analyst Pierre de Vos, who described it as “legal nonsense”, the public protector says she stands by it. The report found that Zille violated the constitution and the Executive Members Ethics Act with her tweets, which included the following:

“For those claiming that the legacy of colonialism was only negative, think of our independent judiciary, transport infrastructure, piped water, etc.”

According to Mkhwebane: “In their ordinary meaning, the public statements meant that colonialism and apartheid was 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.

“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,” she says.

In her response to Zille’s legal challenge, Mkhwebane accuses the premier of showing a “callous disregard for the dignity of black South Africans” and acting “in bad faith, with an unknown intention” and “out of political self-interest”.

Zille says these allegations are vexatious, uncalled for and unjustified — and says it is concerning that Mkhwebane has made such allegations without any sound basis.

Zille 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.”