THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 771/2020

In the matter between:

THE PREMIER OF THE WESTERN CAPE PROVINCE
APPELLANT

and

THE PUBLIC PROTECTOR
FIRST RESPONDENT
THE SPEAKER OF THE WESTERN
PROVINCIAL LEGISLATURE
SECOND RESPONDENT

Neutral Citation:
Premier of the Western Cape Province v The Public
Protector & Another (771/2020) [2022] ZASCA 16 (7
February 2022)
Coram:
VAN
DER
MERWE,
MOLEMELA,
SCHIPPERS,
NICHOLLS and MABINDLA-BOQWANA JJA
Heard:
22 November 2021
Delivered:  This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is deemed to be
10h00 on 7 February 2022
Summary: Administrative law – Review of the findings and remedial action of
the Public Protector – findings and decision of public protector materially

influenced by errors of law – findings and remedial action reviewed and set
aside.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: The Gauteng Division of the High Court, Pretoria (Habedi AJ
sitting as court of first instance):
1.
The appeal is upheld with costs, including the costs occasioned by the
employment of two counsel.
2.
The order granted by the high court is set aside and substituted as
follows:
1.1
‘The findings and the remedial action in paragraphs 5.2.22, 5.2.27,
5.2.37, 6.2, 7 and 8 of the Public Protector’s Report No. 5 of 2018/19
entitled “Report on an investigation into allegations of breach of the
provisions of the Executive Ethics Code by the Premier of Western Cape
Provincial Government, Honourable Helen Zille” are reviewed and set
aside.
1.2
The first respondent is ordered to pay the costs of this application,
including the costs of two counsel.’
______________________________________________________________

JUDGMENT
______________________________________________________________

Molemela JA (Van der Merwe, Schippers, Nicholls, and Mabindla-
Boqwana JJA concurring):
Introduction
[1] Words matter. This case concerns certain tweets made by the appellant,
Ms Helen Zille (Ms Zille), about the impact of colonialism on South Africa. The
tweets in question were made on 15 March 2017, when Ms Zille was still the
Premier of the Western Cape Provincial Government.1 A complaint2 about the

1 Ms Zille held the office of the Premier until 22 May 2010.
2 In terms of s 4(1)(b) of the Executive Members’ Ethics Act 82 of 1998 (the Act), ‘[t]he Public
Protector must investigate, in accordance with section 3, an alleged breach of the code of ethics
on receipt of a complaint by-

tweets in question resulted in the respondent (the Public Protector) conducting
an investigation3 and subsequently compiling and submitting a report4 in terms
of which certain remedial action5 was recommended. Ms Zille’s discontent with
the finding that she had breached various prescripts and the consequent
remedial action gave rise to the litigation that culminated in this appeal. The
principal issue is whether Ms Zille’s tweets violated the Executive Ethics Code6
(Ethics Code), as contended for by the Public Protector, or whether they
enjoyed the protection of free speech enshrined in s 16(1) of the Constitution,
as contended for by Ms Zille.

[2] Before setting out the factual matrix that gave rise to this appeal, I deem
it appropriate to interpose to mention that colonialism is widely considered to
be abhorrent. It is therefore unsurprising that, the Constitutional Court in City of
Tshwane Metropolitan Municipality v Afriforum and Another7 lamented the
divisive and harmful effects of colonialism and apartheid and how they ‘continue
to plague us and retard our progress as a nation more than two decades into
our hard-earned constitutional democracy’.8 In a minority judgment, it was
observed that ‘the wounds of colonialism, racism and apartheid run deep.…
And insensitivity to the continuing wounds by many of us who were not subject

(a) the President, a member of the National Assembly or a permanent delegate to the
National Council of Provinces, if the complaint is against a Cabinet member or Deputy
Minister; and
(b) The Premier or a member of the provincial legislature of a province, if the complaint is
against an MEC of the province.’
Notably, s 136 of the Constitution provides that members of the Executive Council of a province
must act in accordance with a code of practice prescribed by national legislation.
3 In terms of s 3(1) of the Act, ‘[t]he Public Protector must investigate any alleged breach of the
code of ethics on receipt of a complaint contemplated in terms of section 4’.
4 In terms of s 3(2) of the Act, the Public Protector must submit a report on the alleged breach
of the ethics code of ethics within 30 days of receipt of the complaint: (a) to the President if the
complaint is against a Cabinet member, Premier or Deputy Minister; (b) to the Premier of the
province concerned if the complaint was against an MEC.
5 The relevant part of the remedial action reads:
‘The Speaker of the Western Cape Provincial Legislature must, within 30 days from the date of
the report, table it before the Western Cape Provincial Legislature for it to take appropriate
action to hold the Premier accountable as contemplated in sections 114(2), 133(2) & (3)(a) and
136(1) & (2)(b) of the Constitution.’
6 Section 136 of the Constitution provides that members of the Executive Council of a province
must act in accordance with a code of practice prescribed by national legislation. The Executive
Members’ Ethics Act 82 of 1998 is the national legislation envisaged in s 136.
7 City of Tshwane Metropolitan Municipality v Afriforum and Another [2016] ZACC 19; 2016 (9)
BCLR 1133 (CC); 2016(6) SA 279 (CC).
8 Ibid. These remarks appear at para 4 of the majority judgment penned by Mogoeng CJ.

to these indignities can only exacerbate the fraughtness.’9 Although these
remarks were mentioned in passing and not in the context of interpreting s
16(2)(b), the sentiments expressed in that judgment loudly attest to the deep-
seated hurt that was caused by colonialism.

Background facts
[3] It appears that Ms Zille made the colonialism tweets at the end of an
official trip to a summit in Singapore in March 2017. Ms Zille shared her
reflections on Singapore in a tweet which read as follows:
‘Much to learn from Singapore, colonised for as long as SA, and under brutal
occupation in WW2. Can we apply the lessons in our democracy?’
‘Singapore had no natural resources and 50 years ago was poorer than most African
countries. Now they soar. What are the lessons?’
‘I think Singapore lessons are: 1) Meritocracy; 2) multiculturalism; 3) work ethic; 4)
open to globalism; 4) English. 5) Future orientation.’
‘Other reasons for Singapore’s success: Parents take responsibility for children, and
build on valuable aspects of colonial heritage.’

[4] This tweet evidently elicited various responses which were posted on Ms
Zille’s Twitter feed, such as:
‘South Africa would be better if all your people left and we drive forward Africa instead
of embracing colonialism heritage.’
‘There was nothing valuable in the colonization of South Africa. . . NOTHING!’

Ms Zille responded to these comments with a series of further tweets, which
appear to have prompted the complaint to the Public Protector:
‘For those claiming legacy of colonialism was ONLY negative, think of our independent
judiciary, transport infrastructure, piped water etc’
‘Would we have had a transition into specialized healthcare and medication without
colonial influence? Just be honest, please.’
‘Getting onto on aeroplane now and won’t get onto the Wi-Fi so that I can cut off those
who think EVERY aspect of colonial legacy was bad.’

9 Ibid. This observation was made in para 79 of the minority judgment of Froneman J and
Cameron J.

[5] Following the aforesaid series of tweets, an intense debate ensued on
Twitter concerning Ms Zille’s tweets. A wide variety of views were expressed
including disagreement, anger and offence. The following day, on 16 March
2017 at 12h59 (while the Twitter conversation was ongoing), Ms Zille tweeted:
‘I apologise unreservedly for a tweet that may have come across as a defence of
colonialism. It was not.’
On 28 March 2017, in an address to the Western Cape Provincial Legislature,
Ms Zille said that ‘if there was anyone who genuinely thought I was praising,
defending or justifying colonialism, I apologise unreservedly and stressed that
this was not so. I do so again’.
[6] On 13 June 2017, Ms Zille published a further apology at a Democratic
Alliance press conference. The text of the apology was published on the
website of the Democratic Alliance and is couched as follows:
‘After a period of debate and reflection, I recognise the offence caused by my tweet on
the 16th March 2017 with regards to the legacy of colonialism. I therefore apologize
unreservedly to the South African public who were offended by this tweet and my
subsequent explanation of it.
In South Africa colonialism and apartheid subjugated and oppressed the majority and
benefited a minority on the basis of race. This is indeed indefensible and I do not
support, justify, praise or promote it in any way.
I realize the wounds of history that my tweet and subsequent defense of it has opened
up. In particular I recognize that my actions were insensitive to South Africans who
suffered under colonial oppression.
For this, I am genuinely sorry.
During this period, I have made public utterances that have had the effect of
undermining the leader of the Democratic Alliance and the project that he is leading. I
greatly regret this too. Mmusi Maimane is the democratically elected leader of the DA
and we must all get behind his leadership.
My intention now is to do everything I can to restore public trust that has been eroded.
Now, more than ever, we need to unite behind a shared vision of one nation with one
future.’

[7] The Public Protector’s report mentioned that she had conducted an
investigation as a result of a complaint which was lodged with her office by Mr
Magaxa, a member of the African National Congress party and a member of

the Western Cape Provincial Legislature, on 7 July 2017. A copy of the
complaint was not part of the appeal record. The gist of the complaint, as
gleaned from the Public Protector’s report, was that Ms Zille’s tweets had
violated s 2.1(c) and (d) and 2.3(c) of the Ethics Code.

[8] In her report, the Public Protector identified two issues for investigation:
whether Ms Zille had indeed made the tweets on colonialism in the media, and
whether they contravened the provisions of the Ethics Code. The specific
provisions of the Ethics Code that received the attention of the Public Protector
were clause 2.1(d), which enjoins Members of the Executive to ‘act in all
respects in a manner that is consistent with the integrity of their office or the
government’ and clause 2.3(c), which provides that Members of the Executive
may not ‘act in a way that is inconsistent with their position’. The stipulation of
clause 2.2 of the Ethics Code is also worth noting. It provides that in deciding
whether Members of the Executive complied with the provisions of clause 2.1,
the President (or the Premier, as the case may be), ‘must take into account the
promotion of an open, democratic and accountable government’. This clause
thus echoes the foundational values of our democratic state as set out in s 1 of
the Constitution.

[9] There was no dispute about the first question, as Ms Zille admitted that
she made the tweets. As regards the second question, Ms Zille asserted that
her tweets were made in good faith with no intention to cause offence and were
protected under the right to freedom of expression. She pointed out that she
intended to raise a legitimate and important issue for public engagement. She
asserted that transparent engagements were the hallmarks of good
governance, which she considered to be consistent with the integrity of her
office. It was on that basis that Ms Zille contended that her tweets did not
contravene the Ethics Code.

[10] Having finalised her investigation, the Public Protector concluded as
follows:

‘Regarding whether the alleged tweets on colonialism made by the [Premier of]
the Western Cape Provincial Government, Honourable Helen Zille, violated the
provisions of the Executive Ethics Code:

‘6.2.1 The allegation that the alleged tweets on colonialism made by the Premier
violated the provisions of the [Executive Ethics] Code is substantiated.
6.2.2 It cannot be said that the Premier’s tweet sought to show concern and respect
for those who were victims of apartheid and colonialism. The Premier “subsequently
apologized for any harm perceived by any alternative interpretation” of her tweet. Her
apology can be interpreted as recognition of the negative impact the tweet had on the
dignity of a section of the South African population.
6.2.3 Although the tweet could have been made in the context of the Premier’s right
to freedom of expression as provided in section 16 of the Constitution and in good
faith, it was however, offensive and insensitive to a section of the South African
population which regarded it as re-opening a lot of pain and suffering to the victims of
apartheid and colonialism, particularly considering the position of influence she holds.
6.2.4 Section 16 of the Constitution was therefore not created to allow anyone,
particularly those in positions of influence, to make such statements. Subsection
16(2)(b) was created to curb such statements.
6.2.5 Taking into account the negative responses to the Premier’s tweet, the
statements were not consistent with the integrity of her office and position. The
negative responses to the tweet imply that divisions of the past are still not healed.
6.2.6 The conduct of the Premier in the circumstances is in violation of sections
2.1(d) [and] s 2.3(c) of the [Ethics] Code and the Preamble of sections 10, 16, 136(1)
and s [16](2)(b) of the Constitution.
6.2.7 The conduct of the Premier also constitutes improper conduct in terms of s
182(1)(a) of the Constitution.’

[11] In the course of determining the second question, the Public Protector
also made the following findings of law or fact that are sought to be reviewed
and set aside.
‘11.1
Such statements made by Professor Gilley and the Premier are likely to cause
racial tensions, divisions and violence in South Africa. Section 16 of the Constitution
was therefore not created to allow anyone, particularly those in positions of influence,
to make such statements. Subsection 16(2)(b) was created to curb such statements.

11.2
Similarly, in principle the Premier’s tweet was protected by section 16 of the
Constitution, but its impact in South Africa where racial perceptions are still prevalent
should not be overlooked. Subsection 16(2)(b) of the Constitution prohibits statements
which could provoke public reaction, capable of stirring up racial violence. The reaction
of the South African public towards the Premier’s tweet is indicative of the likelihood of
such tweets stirring up violence based on race and therefore in contravention of
subsection 16(2)(b) of the Constitution.
11.3
Based on the evidence and legal prescripts obtained, analysed and evaluated,
it can be concluded that the Premier’s conduct did not comply with the provisions of
the Constitution and Code.’ (Own emphasis.)

[12] Ms Zille approached the Gauteng Division of the High Court, Pretoria
(the high court) seeking to review and set aside the findings in the Public
Protector’s report. The review was brought under the principle of legality on the
grounds of material mistake of law and/or fact in the application of the right to
freedom of expression under s 16 of the Constitution; material mistake of law
and/or fact in the application of the preamble and the right to dignity under s 10
of the Constitution; irrationality, specifically in that the findings were not
rationally connected to the information before the Public Protector or the
reasons given by the Public Protector for them; material mistakes of law in the
application of s 136 of the Constitution and the Ethics Code; and as an
unjustifiable limitation to the right of freedom of expression protected under s
16 of the Constitution. Ms Zille also challenged the remedial action taken by the
Public Protector which directed the Speaker ‘to take appropriate action to hold
the Premier accountable’, on the basis that the remedial action could no longer
practically be implemented.

[13] The high court duly noted that the Public Protector had, in her report,
acknowledged that Ms Zille was no longer the premier of the Western Cape
and that the Western Cape Provincial Government could therefore no longer
sanction her. It held that the remedial action recommended by the Public
Protector fell away on account of Ms Zille no longer holding the position of
premier. It considered the issues raised in the application to have become moot
and pointed out that judicial review does not lie against moot matters. Despite

finding that a reasoned judgment would only be of academic significance with
no practical effect, the court delved into the arguments that were raised.

[14] Distinguishing between an appeal and a review, the high court
emphasised that since the application under consideration was one for a
review, any mistakes of law and fact in the Public Protector’s report did not
necessarily warrant the setting aside of her decision. On the question whether
the Public Protector wrongly held that s 16(2)(b) prohibits free speech, the high
court concluded that even if the Public Protector’s finding in relation to s
16(2)(b) was an error of law, it was nevertheless not reviewable under the
principle of legality. It stated as follows:
‘This is an argument against the public protector’s conclusion, not an argument against
her reasoning for the conclusion. To contravene the provisions of an Act of Parliament
is to act contrary to / or not in accordance with those provisions. I do not see this is an
unreasonable conclusion. To then argue that the findings of the Public Protector that
the Premier contravened the provisions of an Act of Parliament is vulnerable to judicial
review, is in fact arguing an appeal.’

[15] On the basis of the reasoning set out in the preceding paragraph, the
high court declined to review the Public Protector’s decision. Aggrieved by the
high court’s decision, Ms Zille sought and was granted leave to appeal to this
Court. The Public Protector did not oppose the appeal. A letter from her
attorneys informed this Court that she would abide this Court’s decision. The
letter also asserted that every party be ordered to pay its own costs. No heads
of argument were submitted on behalf of the Public Protector and only Ms Zille’s
counsel made oral submissions in the appeal.

[16] Before us, it was contended that the Public Protector failed to apply the
basic principles of interpretation in considering the tweets and fundamentally
misconstrued the scope and application of the right to freedom of expression
envisaged in s 16 of the Constitution. It was submitted that the report sets a
dangerous precedent of limiting the right to freedom of expression, and political
speech in particular. It is vital to democracy that all persons - and especially
those who are elected to hold high public office - should not be deterred from

participating in open debate on issues of public interest and importance, even
if their views may be considered to be controversial or offensive by some, so it
was contended. It was argued that the Public Protector’s findings would exert
a chilling effect on the right to freedom of expression. It was submitted that
findings which promote self-censorship by public office-bearers ought not to be
countenanced in a constitutional democracy. I consider next the legal
provisions which received some consideration from the Public Protector.

The applicable law
[17] Section 10 of the Constitution provides that ‘everyone has inherent
dignity and the right to have their dignity respected and protected’. The
importance of this right was underscored as follows in S v Makwanyane:10
‘The importance of dignity as a founding value of the new Constitution cannot be
overemphasised. Recognising a right to dignity is an acknowledgement of the intrinsic
worth of human beings: human beings are entitled to be treated as worthy of respect
and concern. . . . Respect for the dignity of all human beings is particularly important
in South Africa. For apartheid was a denial of a common humanity. Black people were
refused respect and dignity and thereby the dignity of all South Africans was
diminished. The new constitution rejects this past and affirms the equal worth of all
South Africans. Thus recognition and protection of human dignity is the touchstone of
the new political order and is fundamental to the new Constitution.’
In relation to this matter, the question is whether, objectively considered, the
tweets were demeaning.
[18] Section 16 of the Constitution provides that:
‘16.
(1)
Everyone has the right to freedom of expression, which includes-

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.

(2)
The right in subsection (1) does not extend to-

(a) propaganda for war;

(b) incitement of imminent violence; or

10 S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) paras
328-329.

(c) advocacy of hatred that is based on race, ethnicity, gender, or

religion, and that constitutes incitement to cause harm.’
[19] The importance of the fundamental right to speech as enshrined in s 16
of the Constitution has been emphasised in a plethora of judgments. In Islamic
Unity v Broadcasting Complaints Commission (Islamic Unity),11 citing S v
Mamabolo (Mamabolo),12 the Constitutional Court stated:
‘Freedom of expression, especially when gauged in conjunction with its accompanying
fundamental freedoms, is of the utmost importance in the kind of open and democratic
society the Constitution has set as our aspirational norm. Having regard to our recent
past of thought control, censorship and enforced conformity to governmental theories,
freedom of expression — the free and open exchange of ideas — is no less important
than it is in the United States of America. It could actually be contended with much
force that the public interest in the open market-place of ideas is all the more important
to us in this country because our democracy is not yet firmly established and must feel
its way. Therefore we should be particularly astute to outlaw any form of thought
control, however respectably dressed.’
The Constitutional Court also held that:
‘Where the state extends the scope of regulation beyond expression envisaged in
section 16(2), it encroaches on the terrain of protected expression and can do so only
if such regulation meets the justification criteria in section 36(1) of the Constitution.’13

[20] The same sentiments were recently echoed in the seminal judgment of
Qwelane v South African Human Rights Commission and Another (Qwelane),14
in the context of speech considered to be constituting hate speech. In that
matter, the Constitutional Court opined that the right to ‘. . . freedom of
expression has a particularly important role . . .given the historical stains of our
colonial and apartheid past’. It endorsed the view that, given our country’s
intolerant and suppressive past, the right to free speech must be ‘ . . . treasured,
celebrated, promoted and even restrained with a deeper sense of purpose and
appreciation . . . ‘

11 Islamic Unity v Broadcasting Complaints Commission (Islamic Unity) [2002] ZACC 3; 2002
(4) SA 294 (CC); 2002 (5) BCLR 433 (CC) para 24.
12 S v Mamabolo [2001] ZACC 17; 2001(3) SA 409 (CC) para 37.
13 Islamic Unity, fn 11 para 32.
14 Qwelane v South African Human Rights Commission and Another [2021] ZACC 22.

[21] Despite the importance of the right to free speech as set out in the
authorities alluded to in the foregoing paragraphs, it is important to recognise
that the right to freedom of expression is not as sacrosanct as it may sometimes
be perceived; it is not an absolute right. In Islamic Unity, the court cautioned
that even though s 16(2) merely sets out what does not fall under the protection
of s 16(1), it implicitly acknowledges that certain expression does not deserve
constitutional protection where it has the potential to impinge adversely on the
dignity of others and cause harm.15 On that score, the court in Mamabolo held
that ‘freedom of expression is not a pre-eminent freedom ranking above all
others’.16 Similarly, in Laugh it Off Promotions CC v South African Breweries
International (Finance) BV t/a Sabmark International and Another,17 the court
held:
‘It follows clearly that unless an expressive act is excluded by section 16(2), it is protected.
Plainly, the right to free expression in our Constitution is neither paramount over other
guaranteed rights nor limitless.’
It is clear from the discussion in the foregoing paragraphs that when competing
rights converge, a court adjudicating the matter must undertake a careful
balancing exercise.

[22] Qwelane is helpful in illustrating how competing rights enshrined in the
Constitution need to be carefully balanced. However, it is necessary to
emphasise that the impugned speech that was the subject of the Public
Protector’s investigation was considered to fall within the ambit of 16(2)(b) and
was not categorised as hate speech, which falls within the ambit of s 16(2)(c).18
It therefore bears emphasising that since hate speech goes beyond mere
offensive expression,19 not all the principles laid down in Qwelane will be
equally apposite in this matter.

15 Islamic Unity fn 11 para 30 and 32.
16 S v Mamabolo [2001] ZACC 17; 2001(3) SA 409 (CC) paras 37 and 41.
para 41.
17 Laugh it Off Promotions CC v South African Breweries International (Finance) BV t/a
Sabmark International and Another [2005] ZACC 7; 2006 (1) SA 144 (CC); 2005 (8) BCLR 743
(CC) para 47.
18 Islamic Unity fn 11 para 31.
19 Qwelane fn 14 para 81.

Discussion
[23] It is obvious from the Public Protector’s report that in determining
whether the Ethics Code had been breached as contended for in the complaint,
she considered the Ethics Code through the prism of the Constitution and
concluded that, in addition to being in contravention of the Ethics Code, Ms
Zille’s tweets infringed the widely acclaimed undertakings espoused in the
preamble, breached the right to dignity enunciated in s 10 of the Constitution
and fell within the scope of speech contemplated in s 16(2)(b) of the
Constitution.
[24] There is no gainsaying the crucial role of the preamble20 to our
Constitution, which captures the essential principles by which the inhabitants of
this country seek to be governed.21 The commitment set out in the preamble in
pursuit of, inter alia, healing the divisions of the past and establishing a caring22
and just society based on democratic values and fundamental rights should
therefore never be understated.23 Although the preamble is not a self-standing
source of rights, it serves as a useful backdrop against which constitutional
provisions can be interpreted. In Mhlungu and Four Others v The State24 the
Constitutional Court described the role played by the preamble in the following
terms:
‘The Preamble in particular should not be dismissed as a mere aspirational and throat-
clearing exercise of little interpretive value. It connects up, reinforces and underlies all
of the text that follows. It helps to establish the basic design of the Constitution and
indicate its fundamental purposes.’

20 The Preamble to the Constitution of South Africa provides, in relevant parts:
‘We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the
supreme law of the Republic so as to—
Heal the divisions of the past and establish a society based on democratic values, social justice
and fundamental human rights.’
21 City of Tshwane Metropolitan Municipality v Afriforum and Another fn 7 para 5.
22 Minister of Finance and Other v Van Heerden [2004] ZACC 3; 2004 (6) SA 121 (CC); 2004
(11) BCLR 1125 (CC); [2004] 12 BLLR 1181 (CC) para 23.
23 City of Tshwane Metropolitan Municipality v Afriforum and Another fn 7 paras 5-10, 65 and
126; Qwelane fn 14 para 49 and 51.
24 Mhlungu and Four Others v The State CCT 25 of 1994 [1995] ZACC 4 para 112.

[25] The difficulty that I have with the finding that Ms Zille’s tweets were at
variance with the commitment set out in the preamble is that that conclusion
seems to have been predicated only on the contents of Ms Zille’s apology. It
was also on the same basis that the Public Protector concluded that the right
to dignity enshrined in s 10 of the Constitution was also infringed. The
consideration of an apology as proof of contravention was misplaced, in my
view. This kind of reasoning impermissibly conflated the interpretation of the
tweets with the recognition of their impact. Expressed differently, the
unlawfulness of Ms Zille’s tweets could not be established by the after-the-fact
assessment of her apology. Clearly, the Public Protector’s finding on that
aspect was irrational as the conclusion reached was not supported by the
reasons furnished. It follows that the findings in relation to the alleged breach
of the preamble and s 10 of the Constitution falls to be set aside. It is to the
Public Protector’s findings in response to Ms Zille’s invocation of s 16 as a
defence that I now turn.

[26] It is noteworthy that the Public Protector remarked that ‘in principle’ Ms
Zille’s tweets were protected by s 16 of the Constitution, but proceeded to,
without any basis, to find that they infringed s 16(2)(b) of the Constitution. The
interpretation of s 16 determined in the judgment of the Constitutional Court in
Islamic Unity is instructive.25 The court held that the effect of the structure of s
16 of the Constitution is that all expression, except speech that falls under
s 16(2), is constitutionally-protected speech under s 16(1). Thus, speech that
falls within one of the categories in s 16(2) is ‘unprotected speech’.
Furthermore, it was observed that any limitation of protected speech under s
16(1) must be constitutionally justified under s 3626 of the Constitution.

25 Islamic Unity fn 11 paras 29-32.
26 Section 36(1) provides:
‘The rights in the Bill of Rights may be limited only in terms of law of general application to the
extent that the limitation is reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;

[27] The afore-stated principle was reiterated as follows in Qwelane:
‘Turning to how section 16 ought to be interpreted, it is well accepted that Islamic Unity
is the lodestar for the interpretation and application of section 16. In that case, this
Court outlined the contours of the right enshrined in section 16 of the Constitution.
Section 16(1) entrenches the right to freedom of expression and demarcates the scope
of the right. Section 16(2) is definitional in that it sketches what does not form part of
the scope of the right in section 16(1) and is expressly excluded from constitutional
protection.’27

[28] It is of equal significance that in Tsedu v Lekota (Tsedu)28, this Court
emphasised that when determining whether impugned speech enjoys the
protection of s 16(1) of the Constitution, an objective meaning of the impugned
statement must be established. It said that:
‘. . . Hypothetical reasonable readers should not be treated as either naïve or unduly
suspicious. They should be treated as capable of reading between the lines and
engaging in some loose-thinking, but not as being avid for scandal.’

[29] In Le Roux v Dey (Dey),29 the Constitutional Court described these
principles of interpretation in the context of defamation claim and held that the
applicable test is an objective one. Explaining the application of the objective
test, it pointed out that the criterion is what meaning the reasonable reader of
ordinary intelligence would attribute to the statement. It held that the reasonable
reader would understand the statement in its context and not only have regard
to what is expressly stated. In Qwelane the Constitutional Court endorsed the
approach set out in Dey, pointing out that ‘an objective standard gives better
effect to the spirit, purport and objects of the Bill of Rights.’30 The applicability
of the objective standard in relation to the assessment of whether a statement

(c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose;
and
(e) less restrictive means to achieve the purpose.’
27 Qwelane fn 14 para 76.
28 Tsedu and Others v Lekota and Another [2009] ZASCA 11 para 13.
29 Le Roux v Dey [2011] ZACC 4; 2011 (3) SA 274 (CC) para 89.
30 Qwelane fn 14 para 99.

is protected speech or falls within a category of unprotected speech under s
16(2) of the Constitution is therefore beyond question.31

[30] Applying the principles set forth in the above authorities to this matter, it
is clear that the Public Protector’s approach does not pass muster. In the first
place, she failed to determine the objective meaning and applied a wholly
subjective approach in terms of which she interpreted the tweets based on what
she perceived to be the public’s reaction. The only evidence of the public’s
reaction in the rule 53 record was a small selection of tweets in the twitter
conversation that unfolded and a few newspaper articles. The Public Protector
considered Ms Zille’s tweets to be similar to the statements published in an
article on colonialism, authored by a certain academic from the USA, Prof
Gilley, which received widespread backlash. She also included some pictures
depicting horrific human rights abuses caused by colonialism. Although Ms
Zille’s tweets, like Prof Gilley’s article, evidently sparked controversy, the
contents of her tweets are not the same as those in Prof Gilley’s article. Her
tweets must be interpreted on their own terms and in their own context.

[31] An important consideration is that not every instance of harmful and/or
hurtful speech will result in imminent violence.32 In this matter, the Public
Protector did not take into account the context in which the tweets were made,
which was that there were lessons that could be drawn from the Singapore
experience as it, too, had previously been colonised. Without any attempt to
objectively interpret the impugned tweets, the Public Protector concluded that
the reaction of those who responded to Ms Zille’s tweets sufficed to indicate the
likelihood of Ms Zille’s tweet stirring up racial violence in South Africa. In my
view, there was no basis for that finding. Objectively considered from the point
of view of a reasonable reader, the message conveyed by the tweets is that Ms
Zille’s perception was that, though bad and unfortunate, colonialism yielded
some beneficial aspects.

31 See Qwelane fn 14 paras 96-100.
32 Ibid para 111.

[32] In the second place, the Public Protector interpreted the provisions of s
16(2) incorrectly. By concluding that s 16(2) ‘prohibits’ or ‘curbs’ speech, she
failed to discern that s 16(2) is a definitional provision that excludes propaganda
for war, incitement of imminent violence and advocacy of hatred constituting
incitement to cause harm, from protected speech under s 16(1). She
misconstrued the application and effect of s 16(2) of the Constitution and
considered the impugned speech from a wrong premise, as she believed that
Ms Zille had committed a violation by engaging in conduct that was expressly
prohibited by s 16. It behoved the Public Protector to proceed from the premise
of the correct interpretation of s 16, to understand what test had to be applied
to determine whether there had been a violation, and finally, to pronounce a
conclusion that was in line with that test.33 Clearly, the Public Protector’s
approach was fatally flawed.

[33] Section 16(2)(b) has two critical requirements: first, objectively
considered, there must have been an intention to incite violence; and second,
the speech must entail the incitement of imminent violence - that is, violence
that is impending or close at hand. It is plain that none of these requirements
were considered by the Public Protector; they simply do not feature in her
report.

[34] Conduct constituting incitement was considered by the full bench in
Economic Freedom Fighters and Another v Minister of Justice and
Constitutional Development and Another.34 Having reviewed various judgments
of this Court, that court concluded that an intention to influence another’s
conduct is a fundamental component of incitement. As stated before, the Public
Protector did not apply her mind to any of the threshold requirements of s
16(2)(b) of the Constitution. This failure amounted to a material error of law.
Considering the materiality of this error, the high court was enjoined to review

33 Compare Qwelane fn 14 paras 62-63.
34 Economic Freedom Fighters and Another v Minister of Justice and Constitutional
Development and Another [2019] ZAGPPHC 253; [2019] 3 All SA 723 (GP); 2019 (2) SACR
297 (GP) at paras 19-34; S v Nkosinyana [1966] 4 All SA 456 (A) at 458-459.

and set aside the finding that Ms Zille’s tweets breached s 16 of the
Constitution.35

[35] The Public Protector purported to place reliance on Leroy v France
(Leroy),36 a judgment of the ECHR for her conclusion that the impact of Ms
Zille’s tweets should not be overlooked as they were capable of provoking race-
based violence. In Leroy, the applicant, a cartoonist, had submitted for
publication a drawing showing the terrorist attack that resulted in the collapse
of the twin towers in New York on 11 September 2001 with a caption: ‘We have
all dreamt of it… Hamas did it’. Following the publication of that drawing, the
applicant and the newspaper were criminally charged with complicity in
condoning terrorism. They were subsequently convicted and fined. All appeals
were rejected, culminating in the applicant approaching the ECHR. Relying on
Article 10 of the European Convention, he asserted that the drawing and the
inscription constituted free speech. A perusal of that judgment reveals that in
that matter, the ECHR undertook the exercise of considering various factors. In
its consideration of the context, it, among others, took into account the volatility
of the area in which the publication was made and the timing of the publication,
which was a mere two days after the incident. Having followed that interpretive
exercise, the ECHR found that the applicant had condoned terrorism.

[36] It bears mentioning that what is undeniable is that Ms Zille continued to
post further tweets despite realising that a number of twitter users were
affronted by her initial tweets. This might well be indicative of insensitivity on
her part. The fact of the matter is that insensitive speech still falls under the
purview of protected speech. Despite Ms Zille’s tweets having clearly offended
some sensibilities, I am unable to find anything that takes her tweets out of the

35 Public Protector and Others v The President of the Republic of South Africa and Others para
63.
36 Leroy v France No 36109/03, ECHR (Fifth Section), 2 October 2008, para 42. The court held
that ‘by making a direct allusion to the massive attacks in which Manhattan was the theater, by
attributing these events to a notorious terrorist organization, and by idealizing this disastrous
project by the use verb dream, giving an unequivocal valuation to an act of death, the applicant
justifies the use of terrorism, adhering by the use of the first person in the plural (“we” to this
means) of destruction, presented as the outcome of a dream and indirectly encouraging
ultimately the potential reader to positively appreciate the success of a crime’.

realm of protected speech. The view that Ms Zille’s tweets were protected under
the right to freedom of expression is fortified by the following passage in
Qwelane:

‘The right to free speech is equally protected. The right to freedom of expression, as
enshrined in section 16(1) of the Constitution, is the benchmark for a vibrant and
animated constitutional democracy like ours. . . . Freedom of expression “is of the
utmost importance in the kind of open and democratic society the Constitution has set
as our aspirational norm”. This is because it “is an indispensable facilitator of a
vigorous and necessary exchange of ideas and accountability”. . . . In addition, this
Court has highlighted that “[t]he corollary of the freedom of expression and its related
rights is tolerance by society of different views. Tolerance, of course, does not require
approbation of a particular view. In essence, it requires the acceptance of the public
airing of disagreements and the refusal to silence unpopular views.”’37

[37] Equally forceful is the observation articulated by the European Court of
Human Rights (ECHR) in Handyside v the United Kingdom38 and endorsed as
follows in Islamic Unity:
‘Freedom of expression is applicable, not only to information or ideas that are
favourably received or regarded as inoffensive or as a matter of indifference, but also
to those that offend, shock or disturb the state or any sector of the population. Such
are the demands of that pluralism, tolerance and broadmindedness without which
there is no democratic society.’39

[38] In similar vein, the court in Qwelane endorsed the same observation in
relation to the South African setting and stated that the ‘dictates of pluralism,
tolerance and open-mindedness require that our democracy fosters an
environment that allows a free and open exchange of ideas, free from
censorship no matter how offensive, shocking or disturbing these ideas may
be’.40 It follows that the Public Protector’s conclusion that the tweets violated s
16(1) of the Constitution on the grounds that they were ‘offensive and

37 Qwelane, fn 14 paras 67 and 73.
38 Handyside v the United Kingdom, (1976) 1 EHRR 737, [1976] ECHR 5493/72, [1976] ECHR
5.
39 Islamic Unity fn 11 para 26, quoting Handyside v The United Kingdom at 754.
40 Qwelane fn 14 para 74.

insensitive’ constitutes an unjustifiable limitation of the right of freedom of
expression protected under s 16 of the Constitution.

[39] There can be no doubt that had the Public Protector correctly interpreted s
16(2)(b), she would have embarked on a proper investigation of whether, in
making the tweets, Ms Zille intended to incite violence and whether the
existence of imminent violence was shown. The Public Protector did not engage
in that exercise. An error of law is not material if on the facts, the decision-maker
would have reached the same decision despite that error.41 However, if on the
application of the right interpretation, the facts do not support the impugned
decision, the erroneous interpretation is taken to have materially influenced the
decision42. In this matter, the rule 53 record did not point to any evidence that
suggested that Ms Zille’s tweets fell within the category of unprotected speech
envisaged in s 16(2)(b) of the Constitution. It follows that her conclusion that s
16(2)(b) was implicated constitutes a material error of law.

[40] What remains is to consider the finding that the impugned tweets
breached the Ethics Code. I am of the view that the Public Protector’s
conclusion that the tweets did not fall under the category of protected speech,
and her erroneous finding that s 16(2)(b) was implicated, are factors that
pervaded her reasoning and led her to wrongly conclude that the Ethics Code
was breached. In any event, she could only have come to the conclusion that
the Ethics Code was breached if there were sufficient facts to support it. The
relevant factual foundation is not manifest from the rule 53 record. There was
nothing to suggest that the tweets resulted in the office of the Premier being
undermined. Without those facts, it is difficult to find a basis for concluding that
the Ethics Code was breached.43 Based on the same reasoning, I am of the
view that there was no basis for finding that Ms Zille had violated the provisions
of s 136 of the Constitution, which enjoins members of the Executive Council
to act in accordance with a code of ethics and prohibits them from conducting

41 City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others
[2010] ZACC 11; 2010 (6) SA 182 (CC); 2010 (9) BCLR 859 (CC) para 91.
42 Ibid para 92.
43 Compare Westinghouse Electric Belgium SA v Eskom Holdings (SOC) Ltd & Another 2015
(3) SA 1 (SCA) paras 44-45.

themselves in a way that is inconsistent with their office.44 On the whole, the
available evidence plainly does not support the Public Protector’s findings and
remedial action. There is therefore no rational connection between the Public
Protector’s decision and the reasons for the decision. The high court’s decision
to decline to review the Public Protector’s decision on the grounds of irrationality
was therefore erroneous.

[41] It is plain from the tenor of the judgment of the high court that it did not
properly consider the materiality of the errors of law. Insofar as the high court
found no basis to set the Public Protector’ findings aside on account of its
conclusion that there were no material errors of law, it erred.45 It follows that the
judgment of the high court must be set aside.

[42] As regards costs in the appeal, it must be borne in mind that even though
the remedial action recommended by the Public Protector fell away on account
of Ms Zille no longer holding the position of premier, Ms Zille was still entitled
to persist with the appeal in order to have the baseless findings reversed and
the high court’s order set aside. It matters not that the Public Protector abides
the decision of this Court. The appeal resulted from the findings made in the
Public Protector’s report against Ms Zille. There is therefore no basis for a
departure from the general rule that costs follow the result. Given the complexity
of the matter, the employment of two counsel was justified. We were urged to
grant an order of court on an attorney and client basis. However, having due
regard to all the facts of this case, there is no basis for the punitive costs order
sought by Ms Zille.

44 Section 136 of the Constitution provides:
‘136.
(1) Members of the Executive Council of a province must act in accordance with a code
of
ethics prescribed by national legislation.

(2) Members of the Executive Council of a province may not –

(a) undertake any other paid work;
(b) act in any way that is inconsistent with their office, or expose themselves to
any situation involving the risk of a conflict between their official responsibilities
and private interests; or
(c) use their position or any information entrusted to them, to enrich themselves
or improperly benefit any other person.’

45 The Public Protector v The President of the Republic of South Africa and Others (Freedom
under Law as amicus curiae) [2021] ZACC 19; 2021 (9) BCLR 929 (CC) para 63.

Order
[43] The following order is made:
1.
The appeal is upheld with costs, including the costs occasioned by the
employment of two counsel.
2.
The order granted by the high court is set aside and substituted as
follows:
1.1
‘The findings and the remedial action in paragraphs 5.2.22, 5.2.27,
5.2.37, 6.2, 7 and 8 of the Public Protector’s Report No. 5 of 2018/19
entitled, “Report on an investigation into allegations of breach of the
provisions of the Executive Ethics Code by the Premier of Western Cape
Provincial Government, Honourable Helen Zille”, are reviewed and set
aside.
1.2
The first respondent is ordered to pay the costs of this application,
including the costs of two counsel.’

____________________
M B MOLEMELA
JUDGE OF APPEAL

Appearances:

For appellant: S Rosenberg SC (with him J Bleazard)
Instructed by: State Attorney, Cape Town
State Attorney, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

07 February 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Premier of the Western Cape Province v The Public Protector & Another (771/2020) [2022] ZASCA 16
(7 February 2022)
Today the Supreme Court of Appeal (SCA) handed down judgment upholding, with costs including the
costs of two counsel, an appeal against the decision of the Gauteng Division of the High Court of South
Africa, Pretoria (the high court).
This case concerned certain tweets made by the appellant, the Premier of the Western Cape Provincial
Government, Honourable Helen Zille (Ms Zille) about the impact of colonialism on South Africa. The
tweets in question were made on 15 March 2017, when Ms Zille was still the Premier of the Western
Cape Provincial Government. A complaint about the tweets resulted in the respondent (the Public
Protector) conducting an investigation and subsequently compiling and submitting a report in terms of
which certain remedial action was recommended. Ms Zille was discontent with the finding of the Public
Protector and the consequent remedial action, which then gave rise to the litigation that culminated in
this appeal.
The central issue in the matter was whether the alleged tweets on colonialism made by Ms Zille violated
the provisions of the Executive Ethics Code and the Constitution as found in the Public Protector’s
report.
In her report, the Public Protector said that although the tweet could have been made in the context of
the Premier’s right to freedom of expression as provided in section 16 of the Constitution and in good
faith, it was however, offensive and insensitive to a section of the South African population which
regarded it as re-opening a lot of pain and suffering to the victims of apartheid and colonialism,
particularly considering the position of influence she held. She said that Ms Zille’s tweets are likely to
cause racial tensions, divisions and violence in South Africa. She further asserted that section 16 of the
Constitution was not created to allow anyone, particularly those in positions of influence, to make such
statements. She concluded that the conduct of Ms Zille was in violation of the Ethics Code and the
Preamble of the Constitution as well as sections 10, 16, 136(1) and s 16(2)(b).
Before this Court, Ms Zille argued that the Public Protector failed to apply the basic principles of
interpretation in considering the tweets and fundamentally misconstrued the scope and application of
the right to freedom of expression envisaged in s 16 of the Constitution. It was submitted that the report
sets a dangerous precedent of limiting the right to freedom of expression, and political speech in
particular. It was contended that it is vital to democracy that all persons - and especially those who are
elected to hold high public office - should not be deterred from participating in open debate on issues
of public interest and importance, even if their views may be considered to be controversial or offensive
by some.
The SCA held that, the Public Protector’s conclusion that the tweets did not fall under the category of
protected speech, and her erroneous finding that s 16(2)(b) was implicated, were factors that pervaded
her reasoning and led her to wrongly conclude that the Ethics Code was breached. The court further

held that, there was no evidence showing that the tweets resulted in the office of the Premier being
undermined and without those facts, it was difficult to find a basis for concluding that the Ethics Code
was breached. In addition, the SCA found that there was no basis for finding that Ms Helen Zille had
violated the provisions of s 136 of the Constitution, which enjoins members of the Executive Council to
act in accordance with a code of ethics and prohibits them from conducting themselves in a way that
was inconsistent with their office. On the whole, the available evidence plainly did not support the Public
Protector’s findings and remedial action. There was therefore no rational connection between the Public
Protector’s decision and the reasons for the decision.
The SCA, as a result, upheld Ms Zille’s appeal, including costs occasioned by the employment of two
counsel.

~~~~ends~~~~