On Monday, the Cape High Court ruled that the Erasmus Commission of
Inquiry, appointed by former Premier Ebrahim Rasool to investigate
matters arising out of the City of Cape Town's investigation of
Councillor Badih Chaaban, is unlawful and unconstitutional.
When I stated that I would challenge the legality of the Erasmus
Commission, by going to court if necessary, the Multi-Party Government
of the City of Cape Town was criticised for trying to cover up alleged
wrongdoing, and both the DA and I were accused of becoming embroiled
in a narrow, local issue.
The Court's recent verdict shows that these criticisms were without foundation.
Looking back on the entire saga, the bottom line is this: Neither the
City of Cape Town nor the DA was involved in any illegal spying. The
City did not pay any account on behalf of the DA. The City and the DA
were entirely open with the police investigation, which did not result
in any charge. It was wrong for the Premier, as a politician, to usurp
the role of the police, the prosecutor and the courts, by trying to
set up a commission, with a political agenda, to discredit the DA and
the Multi-Party Government of the City. It was wrong for a judge, the
Police Commissioner and others to allow themselves to be abused in
this process. The Commission breached the principle of the separation
of powers, and was unconstitutional.
An important aspect of the Cape High Court's judgement is that it has
set a precedent that will have to be respected in future.
Yesterday in Parliament I spelt out the implications in a statement, below.
Best Wishes
STATEMENT BY HELEN ZILLE
LEADER OF THE DEMOCRATIC ALLIANCE
Erasmus Commission verdict must have consequences for those complicit
in the abuse of power
3 September 2008
The ruling on Monday in the Cape High Court – that the Erasmus
Commission of Inquiry was unlawful and unconstitutional – is a victory
for constitutional democracy in South Africa. It sends out a signal to
the African National Congress (ANC) that the abuse of state power can
not and will not be tolerated; and that the ruling party must not put
its narrow political interests ahead of the Constitution.
The verdict has five major national implications for constitutionalism.
Firstly, it represents a watershed judgment on the constitutional
principle of the separation of powers, by stating that the appointment
of a serving judge to chair the Commission was incompatible with that
principle, and was therefore unlawful.
Furthermore, the High Court ruled that the terms of reference of the
Commission had effectively given the judge prosecutorial powers, which
was itself a gross violation of the principle of separation of powers.
Secondly, the ruling corroborates the principles of co-operative
government and intergovernmental relations set out in Section 41 of
the Constitution.
These principles state that: "All spheres of government and all organs
of state within each sphere must…respect the constitutional status,
institutions, powers and functions of government in the other spheres"
and "not assume any power or function except those conferred on them
in terms of the Constitution".
By appointing the Erasmus Commission, the former Premier of the
Western Cape, Ebrahim Rasool, overstepped the powers of his office and
those of his provincial administration as they are set out in the
Constitution. In doing so, he disrespected the constitutional status
and powers of the City of Cape Town.
As the High Court judgment catalogues, the City did everything in its
power to co-operate with the provincial government in resolving our
dispute, as Section 41 (3) of the Constitution requires. The
provincial administration, by contrast, systematically violated the
constitutional principle of co-operative government by abusing its
power in an attempt to damage the City.
Thirdly, the ruling shows that a vital democratic institution – the
judiciary – is prepared and willing to check the abuse of state power.
At a time when the ANC is increasingly acting without regard to the
constitutional constraints on its power, and in contempt of the system
of checks and balances designed to enforce these limitations, this
sets an important precedent for the future.
Fourthly, the verdict deals a body blow to the increasingly popular
notion that the ruling party should be able to bypass the courts and
the due process of law in pursuing its own narrow political agenda.
That idea underpins the call for ANC President Jacob Zuma's corruption
trial to be halted, and for him to be given a special political deal
instead.
Fifthly, the ruling upholds the constitutional imperative of judicial
independence in finding that the Commission should not have been
headed by a judge. The Court declared that it was inappropriate for a
judge to head a commission of inquiry which was so clearly political
in nature, as this risked compromising the independence of the
judiciary.
The Erasmus Commission was a blatant abuse of power.
The Court found that Rasool did not have the power in law to appoint
the Erasmus Commission. This vindicates the belief held by the City of
Cape Town that it was both illegal and in bad faith for the Premier,
via the Commission, to try to take on the power of the police by
conducting a criminal investigation.
Instead of pursuing a legal and constitutional route, Rasool chose to
wage a political smear campaign against the Democratic Alliance-led
Multi-Party government. After his initial attempts stalled and the
first Erasmus Commission was disbanded, he re-appointed the Commission
with an expanded mandate.
But, like its precursor, the second Erasmus Commission was an
unconstitutional political hit squad, whose aim it was to do as much
damage as possible, through slur and innuendo, to me personally in the
run-up to the 2009 elections, with the aim of preventing the party I
lead from winning the Western Cape.
The Erasmus Commission was never about defending the law; it was about
defending the ANC's political interests. As the judgment states:
Rasool's "only motive on the evidence in establishing the second
Erasmus Commission, must have been to embarrass or discredit political
opponents, particularly the DA".
When I signalled my intention to resist the Erasmus Commission, the
ANC, much of the media, and several commentators suggested that both
the Democratic Alliance and the Multi-Party Government of the City of
Cape Town had something to hide. They even argued that I was becoming
bogged down in local issues, and used this as a pretext to argue that
I could not combine my dual functions as Mayor or Cape Town and Leader
of the Democratic Alliance.
But my opposition to the Erasmus Commission was never aimed at
concealing anything; otherwise, why would I have asked Advocate Josie
Jordaan SC to conduct an exhaustive inquiry into whether the City had
broken any law in the process of its investigation into Councillor
Badih Chaaban?
Furthermore, despite an exhaustive police investigation over many
months, no evidence emerged that the City of Cape Town or the DA had
engaged in illegal spying. The City opened up all its files to the
police to investigate, and held nothing back. If there had been any
substance to these allegations of illegal spying, charges would have
been laid.
My goal in opposing the Erasmus Commission was to expose it for what
it really was – a political witch-hunt by the ANC, which fundamentally
undermined the Constitution. I believed then, and it is a belief that
has now been vindicated by the Cape High Court, that by resisting the
Commission, we would be defending the Constitution and demonstrating
to the ANC that it could not lightly get away with abusing state
power.
As a result of the recent judgment, I have taken the following steps:
Firstly, I have asked my Party's representative on the Judicial
Service Commission (JSC) to approach that body with a view to
investigating whether Judge Nathan Erasmus is guilty of misconduct.
According to the judgment, "the involvement of Erasmus J in the
commission has unnecessarily involved the judge in the political
controversy surrounding the commission, which may damage the
confidence of the public in the judiciary's core function of
determining matters in court".
Not only did Judge Erasmus compromise himself, and the integrity of
the judicial system, by agreeing to chair the Commission in the first
place. In so doing he disregarded the guidelines accepted by the
Constitutional Court to prevent this kind of abuse.
Moreover, he also acted unlawfully by giving a so-called "interim
report" to Rasool when the Commission was about to be reconstituted.
This report contained confidential information, such as my cell phone
records, which had been illegally subpoenaed, and which have now, no
doubt, been disseminated in the ANC.
For these two reasons, I believe that Judge Erasmus may have a case to
answer for to the JSC.
Secondly, the DA's Chief Whip, Ian Davidson, has written to the
Minister in the Presidency, Kgalema Motlanthe, and asked him to
dismiss Ebrahim Rasool, whom he recently appointed to advise him on
his work in Parliament.
As a public servant, Rasool is required by the Constitution to promote
and maintain "a high standard of professional ethics". However, in the
light of the Cape High Court judgment, it is clear that he is unfit
for this form of public office.
It is inappropriate for Minister Motlanthe to be advised by someone
like Rasool, and if Motlanthe is to become the next President or
Deputy President of this country – as it is has been suggested in some
quarters – it is only right that he demonstrates his probity and
suitability for these positions by acting decisively now against the
mal-administrators in his midst.
Thirdly, I have written to the Public Protector, asking him to
investigate whether the Erasmus Commission constituted an abuse of
public funds. The Public Protector is obliged in terms of the
Constitution to "investigate any conduct in state affairs, or in the
public administration in any sphere of government, that is alleged or
suspected to be improper or to result in impropriety or prejudice".
The Cape High Court judgment provides ample prima facie evidence of
such impropriety.
Finally, in the provincial legislature, our representatives have
called on Police Commissioner Mzwandile Petros to resign, in light of
the fact that he acted illegally when he passed on to Rasool
information that the police obtained in a search of the home of
private investigator Philip du Toit. According to the court ruling,
that information should have been fully investigated by the police and
then handed to the director of public prosecutions.
Petros must appear before a standing committee to explain his conduct.
In addition, we will submit questions to assess how much the Erasmus
Commission has cost the taxpayer. Our legal advisors are also
currently assessing whether Rasool, or any other public official, is
personally liable in terms of the Public Finance Management Act.
The decision by the Cape High Court to declare the Erasmus Commission
unlawful and invalid was a landmark ruling for constitutional
democracy. As such, it will have repercussions far beyond the City of
Cape Town – by reaffirming the supremacy of the Constitution and by
rejecting the abuse of state power. We knew from the start that the
Erasmus Commission was illegal, unconstitutional, and politically
motivated. That is why we opposed it so implacably. Now that the Court
has passed judgment, we must see remedial action – along the lines I
have outlined – to ensure that power is never again abused in this
way.
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