Helen Zille. Picture: THE TIMES
Helen Zille. Picture: THE TIMES

Former Western Cape premier Helen Zille’s legal battle to overturn public protector Busisiwe Mkhwebane’s report on her controversial colonialism tweets has been defined by marathon heated arguments between her advocate and the judge deciding the case — who has repeatedly highlighted the pain, hurt and offence the tweets caused.

On Wednesday, acting judge Malebo Habedi read out some of the responses Zille had received to her 2017 tweets, which followed her return from a trip to Singapore, and used them to question the “impact” the tweets had caused.

In one of the tweets, Zille stated that “for those claiming legacy of colonialism was ONLY negative, think of our independent judiciary, transport infrastructure, piped water etc.”

In response to Zille’s advocate Sean Rosenberg’s argument that the tweets had promoted a “healthy and lively debate” about the legacy of colonialism, Habedi referred to a tweeted response that stated “SA would be better off if all [Zille’s] people left and we dragged forward Africa instead of engaging colonialism’s heritage”.

“Do you think that’s healthy? When someone with such an angry tone says SA would be better off if you left and you drive forward SA [sic] without embracing the colonialism? Is this a healthy debate?” Habedi asked Rosenberg.

“This response comes directly from the tweets ... from there, an angry response is elicited. Unless you say the anger was unfounded?”

The judge went on to ask whether the anger felt by people in response to Zille’s tweets “could end up being something that any reasonable person could take as an incitement to imminent violence?”. 

Under the constitution, the right to freedom of expression is not extended to speech that incites the imminent threat of violence. Mkhwebane found that Zille’s tweets did that, by fueling racial division and expressing nostalgia for apartheid and colonialism.

Zille vehemently denies that her tweets were intended to be a celebration of colonialism or apartheid, or could reasonably be read as such. She maintains her challenge to Mkhwebane’s report — which maintained that appropriate action be taken against her by the Western Cape legislature — has fallen away since her retirement as premier is pivotal to ensuring that the right to freedom of expression is upheld.

She insists that no reasonable evaluation of her tweets could find that they amounted to hate speech, which is what Mkhwebane’s report effectively determined them to be.

On Wednesday, Mkhwebane’s advocate Thabani Masuku rejected Zille’s argument that her tweets needed to be viewed as those of an ordinary SA citizen expressing an opinion and said they needed to be evaluated as those of a premier with “constitutional responsibilities”.

The case was postponed until October for further argument.