Zille ruling ... what it means for the law

The approach of the Gauteng High Court in dealing with Helen Zille's challenge of the Public Protector's report on the former Western Cape Premier's tweets on colonialism could, if followed, constitute a serious blow to the rule of law. Constitutional law expert Pierre de Vos writes that the judgment in Premier of the Western Cape v Public Protector and Another is important because the new legal standard applied in the case would, if followed, make it very difficult for courts to review and set aside reports of the Public Protector. In his Constitutionally Speaking blog, he says the judgment contains much to interest people concerned about judicial review of decisions by bodies exercising public power, in general, and of the reports of the Public Protector, specifically. He says the 'most surprising aspect of the judgment may well be that the court considered the merits of the arguments placed before it at all, given that it found this was merely an academic exercise'. In its judgment, the court said as Zille was no longer the Premier of the Western Cape, and therefore cannot be sanctioned by the legislature, the remedial action imposed by the Public Protector in the report falls away and the issues in the application have therefore become moot. 'In my view,' wrote the judge, 'a reasoned judgment in this matter is simply of academic significance and of no practical consequence. The entire hearing was therefore rendered academic.' The court nevertheless proceeded to consider, and then reject, all the arguments presented to it by Zille's lawyers, says De Vos. 'To try to understand the reasoning of the court (which, in places, is not easy to follow), it is important to grasp the distinction made in our law between appeals and reviews, a distinction emphasised by the High Court.' He argues that the report should have been reviewed and set aside because the Public Protector made an 'error of law' in that she could not have reached the conclusion that Zille breached section 16(2)(b) of the Constitution because it would not have been possible to find that the section prohibits Zille’s tweets on colonialism. Nonetheless, the judgment is a reminder, notes De Vos, that individuals who find themselves on the wrong side of the Public Protector cannot challenge the findings and remedial action contained in a report merely because the Public Protector got the facts or the law wrong. 'Unlike a litigant in a court case, such an individual will not be able to challenge the factual or legal correctness of the findings or the binding remedial action imposed by the Public Protector in an appeal, unless the error is material to the findings made by the Public Protector. '

Full Constitutionally Speaking analysis