Legalbrief | your legal news hub Sunday 26 September 2021

Mkhwebane's ‘bizarre’ Zille report set for judicial review

Public Protector Busisiwe Mkhwebane’s latest ‘irrational’ ruling – against Helen Zille, whom she found had violated the executive ethics code when she tweeted about colonialism – is almost certain to be taken on review, notes Legalbrief. Mkhwebane released her report into Zille 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 describes the report as ‘bizarre’ and ‘so legally misguided that it is difficult to believe that a qualified lawyer could write it in faith’ (see report below). Mkhwebane reportedly told journalists: ‘The tweet has brought back a lot of pain and suffering to victims of 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.

Zille (in her response to Mkhwebane) said the findings amount to an ‘arbitrary and irrational decision’ that will ‘not withstand judicial review’. If Zille does take the report on judicial review, she will join the likes of Absa and the DA, who have taken separate reports released by Mkhwebane’s office on review, notes a Mail & Guardian Online report. In total, Mkhwebane has spent at least R15m defending reports that have been taken on review, it says. Mkhwebane has been under scrutiny for her performance as Public Protector and her ability to maintain her independence from political interference. Parliament is considering an inquiry into her fitness to hold office. The matter was meant to be discussed last week, but instead MPs were angered when Mkhwebane failed to attend the meeting with an excuse that there was a family emergency that required her attention. MPs now expect Mkhwebane to be present in Parliament this week. The DA slammed the report, saying the party would push for Mkhwebane’s removal from the office, according to the Pretoria News. DA parliamentary Chief Whip led the charge, accusing Mkhwebane of being reliant on irrelevant sections of the Constitution when compiling it. He also claimed Mkhwebane did not give Zille a copy of the report before presenting it to the public. ‘Neither the Premier nor the party have been provided with the report, as required in terms of the Public Protector’s responsibilities. The excerpts I have seen of it seem to have been once again a complete overreach by the Public Protector,’ Steenhuisen reportedly said. ANC acting Western Cape chairperson, Khaya Magaxa, who lodged the complaint against Zille, reportedly told the Cape Times the tweets belonged to members of the disbanded National Party, and 'she is an embarrassment'.

Mkhwebane’s action has invited the public again to consider whether she is suitable to continue in her position, according to an opinion by De Vos on his Constitutionally Speaking blog. He says her report purports to deal with Zille’s tweets in a manner that suggests she has little understanding of her own powers and lacks even a very basic knowledge of the Constitution. He says that from a legal perspective the report is ‘truly preposterous’ and ‘will be found to be irrational and set aside by the courts if they are asked to do so’. In a detailed explanation of why the finding doesn't pass legal muster, De Vos points out that ‘by purporting to rule on human rights abuses the Public Protector is in breach of the separation of powers doctrine, arrogating to herself a power exercised by the judiciary'. He adds: 'No Public Protector has ever attempted to rule that a member of the executive has breached a constitutional right and there is a good reason for this: the Public Protector does not have the power to make such a ruling as such investigations are beyond the jurisdiction of her office.’ However, notes De Vos, there is an even more glaring reason why this finding by the Public Protector is wrong. 'This is that section 16(2)(b) of the Bill of Rights does not prohibit anyone from doing anything. Section 16(1) guarantees for everyone the right to freedom of expression and prohibits anyone from infringing on this right. Section 16(2) then excludes certain forms of expression from the expression protected in section 16(1). Making a finding that Zille’s tweets infringed on section 16(2)(b) of the Constitution suggests the Public Protector lacks even a basic knowledge of constitutional law,' he writes. In another finding yesterday, Mkhwebane has recommended that the Deputy Speaker of the Limpopo legislature pay back part of a R125 000 cellphone bill racked up on a trip to the US in 2014. According to a TimesLIVE report, Mkhwebane said that Lehlogonolo Masoga had abused financial resources. ‘The allegation that the Deputy Speaker incurred an exorbitant or unreasonable mobile telephone bill whilst on an official trip in the US in August 2014 is substantiated. The actual total bill incurred for the month of August was R138 701.99, which was inclusive of subscription services‚ roaming data usage‚ international roaming services‚ domestic data usage and VAT‚’ said Mkhwebane's report into the matter. Mkhwebane gave Masoga 60 working days to pay back the funds.