The Premier of the Western Cape Province v The Public Protector and Another

Helen Zille, then Premier of the Western Cape Province, made a series of tweets on 15 March 2017 following a visit to Singapore, comparing Singapore's colonial experience with South Africa's and suggesting that there were "valuable aspects of colonial heritage" that could be built upon. The tweets included statements such as "For those claiming legacy of colonialism was ONLY negative, think of our independent judiciary, transport infrastructure, piped water etc" and "Would we have had a transition into specialized healthcare and medication without colonial influence? Just be honest, please." The tweets generated significant public reaction and controversy. Ms Zille issued multiple apologies for the tweets. A complaint was lodged with the Public Protector by a member of the Western Cape Provincial Legislature, alleging that the tweets breached the Executive Ethics Code. The Public Protector investigated and found that the tweets violated sections 2.1(d) and 2.3(c) of the Executive Ethics Code, the Preamble of the Constitution, sections 10 and 16(2)(b) of the Constitution, and constituted improper conduct under section 182(1)(a). She recommended remedial action requiring the Speaker to table the report before the Provincial Legislature for appropriate action. By the time the report was issued, Ms Zille was no longer Premier.

• Whether the Public Protector correctly interpreted and applied section 16 of the Constitution regarding freedom of expression
• Whether the tweets fell within the category of unprotected speech under section 16(2)(b) (incitement of imminent violence)
• Whether the Public Protector correctly determined that the tweets breached the Executive Ethics Code
• Whether the Public Protector's findings constituted material errors of law warranting review and setting aside
• Whether the matter was moot given Ms Zille was no longer Premier
• Whether offensive or insensitive speech falls within protected speech under section 16(1)

The appeal was upheld with costs, including costs of two counsel. The High Court's order was set aside and substituted with an order reviewing and setting aside the findings and 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. The Public Protector was ordered to pay the costs of the application, including costs of two counsel.

Section 16(2) of the Constitution is definitional, not prohibitive - it delineates what does not form part of protected speech under section 16(1), rather than prohibiting certain speech. All expression except speech falling under section 16(2) is constitutionally-protected speech under section 16(1). Speech that falls within section 16(2) is "unprotected speech" and any limitation of protected speech under section 16(1) must be constitutionally justified under section 36. An objective standard must be applied when determining whether impugned speech enjoys constitutional protection - the test is what meaning a reasonable reader of ordinary intelligence would attribute to the statement, considered in context. Section 16(2)(b) has two critical requirements: (1) objectively considered, there must have been an intention to incite violence; and (2) the speech must entail incitement of imminent violence. Offensive or insensitive speech remains protected speech under section 16(1) - the dictates of pluralism, tolerance and open-mindedness require that democracy fosters free exchange of ideas, no matter how offensive, shocking or disturbing. A material error of law occurs when, on application of the correct legal interpretation, the facts do not support the impugned decision - such errors warrant review and setting aside of administrative decisions. An apology cannot be used as proof that conduct was unlawful - this impermissibly conflates interpretation with recognition of impact.

The Court made observations about the abhorrent nature of colonialism, citing the Constitutional Court's statements about the divisive and harmful effects of colonialism and apartheid that continue to plague South Africa. The Court noted that colonialism is widely considered abhorrent and that the wounds of colonialism run deep, with insensitivity to continuing wounds exacerbating fraughtness. While these observations set important context, they were not necessary to the decision. The Court also observed that Ms Zille's continued posting of tweets despite realizing they offended some users "might well be indicative of insensitivity on her part" but noted this did not take the tweets out of protected speech. The Court commented that even though the Public Protector abided the Court's decision, this did not affect the costs order, as the appeal resulted from findings made against Ms Zille in the report. The Court noted that while the remedial action had fallen away due to Ms Zille no longer being Premier, she was still entitled to have the baseless findings reversed. The Court also made obiter remarks about the importance of not deterring public office bearers from participating in open debate on controversial issues of public interest, warning against a "chilling effect" on freedom of expression.

This case is significant for clarifying the scope and protection of freedom of expression under section 16 of the Constitution, particularly for political speech and speech by public office bearers. It reinforces the principle from Islamic Unity that section 16(2) is definitional rather than prohibitive, and that all speech except that falling within section 16(2) enjoys constitutional protection. The judgment affirms that offensive, shocking or insensitive speech remains protected speech, reflecting the demands of pluralism, tolerance and open-mindedness in a democracy. It establishes that public office bearers should not be deterred from participating in public debate on controversial issues of public importance. The case also provides important guidance on administrative law review principles, clarifying when errors of law are "material" and demonstrating the importance of decision-makers applying the correct legal tests and interpretive approaches. It confirms that findings must be supported by evidence and rationally connected to the reasons given.