Legal, factual errors by Public Protector – Zille
Publish date: 09 July 2018
Issue Number: 781
Diary: IBA Legalbrief Africa
Category: South Africa
Public Protector Busisiwe Mkhwebane's findings and remedial action on Western Cape Premier Helen Zille's tweets on colonialism were irrational and based on legal and factual errors. Zille, in papers filed in the Western Cape High Court, added that the findings also 'unjustifiably limit the right to freedom of expression'. 'Sanctioning me for the tweets would have the effects of suppressing free speech, as well as the constitutional right to receive information and ideas,' said Zille, according to a TimesLIVE report. The Premier, who has maintained that the 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', is seeking to block Mkhwebane's finding that the Speaker of the Western Cape legislature should 'hold the Premier accountable' for the tweets by 23 July. 'The interdict is necessary to prevent prejudice to my office by the provincial legislature's implementation of the remedial action, which I contend is unlawful,' Zille said in her court papers. 'The remedial action directs the provincial legislature to "hold the Premier accountable". The open-endedness of this remedial action exacerbates the potential prejudice to me; it is unknown and unpredictable as to what sanction the provincial legislature may impose in response to the remedial action.' Zille is seeking to review and overturn Mkhwebane's report on her tweets, which she began by stating: 'For those claiming that the legacy of colonialism was only negative, they should look at various aspects of South Africa's development, such as the judiciary and other infrastructure.'
The Public Protector is concerned that the Western Cape legislature has reportedly dismissed her Zille report. As recorded previously in Legalbrief Today, the DA Chief Whip in the legislature, Mark Wiley, dismissed the report on the basis that Mkhwebane had misunderstood the law and that the report was not in its jurisdiction. Weekend Argus quotes acting spokesperson for Mkhwebane, Oupa Segalwe, as saying that if the report was true, then the conduct of the legislature might amount to ‘second-guessing’ the Public Protector instead of assisting and protecting her to ensure the institution’s independence, impartiality, dignity and effectiveness, as obligated by the Constitution. Segalwe emphasised the Public Protector’s remedial action was binding unless set aside by a court of law. He said Mkhwebane believed the legislature had the power and jurisdiction to implement the remedial action.
Meanwhile Mkhwebane faces a grilling in Parliament next month as calls for her removal from her position because of incompetence grow louder, observes a second Weekend Argus report. Chairperson of the National Assembly’s Justice Committee Mathole Motshekga said Mkhwebane would face the committee to defend allegations against her. The committee would then determine whether or not there should be an inquiry into her fitness to hold office – a seemingly unlikely outcome, given the ANC has previously supported her, observes Legalbrief. As the Weekend Argus report notes, this is the second attempt to remove her from office. An attempt by the DA failed after the ANC withdrew its support for such a move. Segalwe confirmed Mkhwebane had filed her response to the committee and the reasons she believed she needed to continue in her job. ‘... the crux of her response is that she was appointed on merit in an open and transparent process, is fit, proper, qualified and experienced to hold office,’ Segalwe is quoted as saying. Motshekga also confirmed Mkhwebane had responded to the committee regarding a complaint lodged by DA Chief Whip John Steenhuisen. During a meeting of the committee recently Steenhuisen listed a number of reasons why Mkhwebane should be removed from office, among them that she failed to act against former Free State Premier Ace Magashule and ex-Minister of Mineral Resources Mosebenzi Zwane over the Estina dairy project.