As the Public Protector braces herself to face an inquiry into her fitness to hold office on Wednesday, her report into Helen Zille's colonialism tweets, released on Monday, once again called into question her understanding of the law.
In her report, Mkhwebane held that Zille had breached the Executive Members Ethics Code, when she tweeted in 2017 that "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," according to Eyewitness News (EWN).
Zille reportedly responded, saying she intended to take the report on judicial review.
The complaint against Zille was reportedyl laid by an ANC member of the Western Cape provincial legislature. The ANC in the Western Cape reportedly said it felt "vindicated" by Mkhwebane's findings.
Mkhwebane directed the Speaker of the Western Cape provincial legislature to sanction Zille.
Adv. Mkhwebane: The Speaker must within 30 working days table the report 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.— Public Protector SA (@PublicProtector) June 11, 2018
DA MP John Steenhuisen tweeted on Monday that his request for a hearing into Mkhwebane's fitness had been granted.
I have been informed today that my request for an inquiry into the fitness of the Public Protector to hold office will be heard by the Justice and Correctional services portfolio committee on Wednesday this week at 12:00 👍🏻 pic.twitter.com/JbQq98bX2Y— John Steenhuisen MP (@jsteenhuisen) June 11, 2018
In an opinion piece published on his blog on Monday, constitutional law expert Professor Pierre de Vos wrote that the report was "a legal nonsense" that was "so legally misguided that it is difficult to believe that a qualified lawyer wrote it in good faith".
One of the many legal flaws in her report, wrote De Vos, is that in making her finding, Mkhwebane held that Zille had breached the section of the Bill of Rights that deals with speech not protected by the Constitution. This would be speech that could, for example, stir up racial violence.
"The reaction of the South African public towards the Premier's tweets is indicative of the likelihood stirring up violence based on race..." she wrote.
But the Public Protector is not empowered to investigate alleged infringements on the Bill of Rights, De Vos wrote.
He also said that while the Public Protector is empowered to investigate corruption, maladministration and other abuses of power by the state, there are other Chapter 9 institutions empowered to deal with human rights abuses, like the South African Human Rights Commission and the Commission for Gender Equality.
Former DA leader Tony Leon was also of the view that Mkhwebane had made serious legal errors.
The ruling on the Zille tweet is both bad and mad in law and offends in terms of her even understanding her own jurisdiction let alone the Constitution. If she now trawls Twitter for 'persons of influence' making 'offensive' comments there is no end to it but her end must be nigh— Tony Leon (@TonyLeonSA) June 11, 2018
The Council for the Advancement of the South African Constitution (Casac) also questioned the report.
The Council for the Advancement of the South African Constitution, CASAC, has questioned the Public Protector's action in investigating Western Cape Premier Helen Zille's controversial tweet.— SAfm news (@SAfmnews) June 11, 2018
Financial consultant Dirk de Vos said Mkhwebane's findings would now "shake out" all those who had, in his view, misinterpreted Zille's tweet.
The public protector Mkhwebane might have done everyone a favour on her @helenzille finding. Her ludicrous finding will shake out all those who wilfully misrepresented what Zille actually said by way of a full ventilation of the matter in court. Excellent— Dirk de Vos (@DirkdeVos) June 11, 2018
South African Institute for Race Relations (SAIRR) researcher and former DA spokesperson Gareth van Onselen was one of many who were also critical of the report.
This Public Protector understands the constitution like Homer Simpson understands Einstein's theory of relativity. https://t.co/j8czi3ZczH— Gareth van Onselen (@GvanOnselen) June 11, 2018
Public Protector Mkhwebane's finding on Zille is bad in law, stupid in its construction, fundamentally illiberal, and beyond her remit - flawed, politically partisan and agenda-driven. DA was 100% right to object to her appointment. ANC's motives are clear for all to see. #twit— ghaleb cachalia (@GhalebCachalia) June 12, 2018
We miss Thuli. @AdvBMkhwebane is totally out of touch with reality. She thought she was going to be popular with her weird, absurd and illogical report on Zille.— Lood Louis (@CoolLood) June 11, 2018
She has united every reasonable and slightly intelligent person in SA to conemn her stupidity.@PublicProtector