The tale of two tweets
Publish date: 13 June 2018
Issue Number: 1736
Diary: Legalbrief eLaw
With hundred of millions of active users, Twitter has become the largest source of breaking news on the planet. Not surprisingly, notes Legalbrief, this online news and social networking service wields explosive power and influence (as Western Cape Premier Helen Zille and diet guru Tim Noakes have learned). And there have been two significant twists in the ‘twitterati’ saga that saw both personalities scrambling to save their reputations and legacies. Public Protector Busisiwe Mkhwebane’s latest ‘irrational’ ruling – against Zille, whom she found had violated the executive ethics code when she tweeted about colonialism – is almost certain to be taken on review. Mkhwebane released her report on the Zille controversy following a complaint lodged in July 2017 after the Premier tweeted that there were some positives that emanated from colonialism. According to a BusinessLIVE report, she found Zille acted in a manner that was inconsistent with the integrity of her office, she violated the principles of the Constitution and divided society on racial grounds. Constitutional law expert Pierre de Vos describes the report as ‘bizarre’ and ‘so legally misguided that it is difficult to believe that a qualified lawyer could write it in good faith’. Mkhwebane reportedly told journalists: ‘The tweet has brought back a lot of pain and suffering to victims of apartheid and colonialism in SA. She celebrated the oppression, exploitation, racism and poverty which are a direct result of (the) legacy of colonialism. She failed to act in good faith and in the best interest of good governance by making such statements.’ In her remedial action, Mkhwebane instructed the Speaker of the Western Cape legislature to table the report within 30 days so appropriate action could be taken to hold Zille accountable. In March 2017, Zille tweeted: ‘For those claiming legacy of colonialism was only negative, think of our independent judiciary, transport infrastructure, piped water, etc.’ Zille’s office said it had noted Mkhwebane’s finding but had not received the report outlining the reasons. ‘However, from what has been announced on TV, the Premier is likely to take this report on judicial review,’ her spokesperson, Michael Mpofu, is quoted as saying.
Former DA leader Tony Leon was also of the view that Mkhwebane had made serious legal errors. He tweeted: ‘The ruling on the Zille tweet is both bad and mad in law and offends in terms of her even understanding her own jurisdiction let alone the Constitution. If she now trawls Twitter for “persons of influence” making “offensive” comments there is no end to it but her end must be nigh.’ A report on the HuffPost SA site notes that the Council for the Advancement of the South African Constitution (Casac) also questioned the report. And financial consultant Dirk de Vos said Mkhwebane's findings would now ‘shake out’ all those who had, in his view, misinterpreted Zille's tweet.
And Noakes has won his case at the Health Professions Council of SA (HPCSA)‚ four years after he tweeted a response about a mother weaning her baby onto a low-carb, high-fat (LCHF) diet, notes a BusinessLIVE report. He is quoted as saying: ‘The predominant feeling at the moment is one of intense relief. Relief that it is finally over and that the appeal judgment was again 100% in our favour, as was the original judgment. This chapter is finally closed.’ In February 2014‚ the mother‚ Pippa Leenstra‚ tweeted: ‘@ProfTimNoakes @SalCreed is LCHF eating ok for breastfeeding mums? Worried about all the dairy + cauliflower = wind for babies??’ The complaint against Noakes was laid with the HPCSA by dietician Claire Strydom‚ who was then chair of the Association of Dieticians. Noakes won his case in April last year but the HPCSA appealed the ruling and a new appeal committee‚ including a doctor and a lawyer‚ was established. The issues at both hearings examined whether Noakes was giving ‘unconventional advice’ over social media and whether he was treating Leenstra’s baby as a patient without conducting an examination. The appeal found there was no doctor-patient relationship between Noakes and Leenstra‚ who had used Twitter to ask for general advice. In its appeal the HPCSA argued that the protection of the public from tweets was paramount. The panel found the matter of protecting the public was not argued in the first hearing or in the heads of arguments and said that for the HPCSA to bring it up later was a ‘fishing expedition’.