Erasmus Commission set up for political ends - ruling

The commission was set up by former Western Cape Premier Ebrahim Rasool, ostensibly to probe the legality of the City of Cape Town's bribery investigation into renegade Councillor Badih Chaaban. However, the judges said Rasool's motive had in fact been the 'improper one' of seeking to embarrass his political opponents, in particular the DA, which leads the city. Rasool's actions in establishing it had been arbitrary and unlawful, and his decision therefore 'falls to be set aside'. Swain, who took more than two hours to read the judgment, said the context of the tensions between the DA and the ANC for control of the City Council could not be ignored. 'There were clear battle lines between the Premier and the MEC and the Mayor and the DA, with the prize being control of the City of Cape Town.' The case was heard by Swain and Nicholson, who are from the KwaZulu-Natal Bench, because Erasmus is a Cape judge. The Erasmus Commission had suspended its sittings pending the outcome of the case. Full Mail & Guardian Online report

The involvement of Western Cape Police Commissioner Mzwandile Petros was also scrutinised, with the judges ruling that his disclosure to Rasool about a police raid pertaining to the investigation was unlawful, according to a Cape Times report. Advocate Johnny Nortje, acting for private investigator Philip du Toit, said his client would take legal action seeking damages from Rasool in his private capacity. Nortje said Du Toit's house was raided in a bid to find evidence for the Erasmus Commission. DA provincial leader Theuns Botha said the DA would ask that Petros appear before the province's standing committee 'as a matter of urgency' to answer questions about his impartiality. Full Cape Times report (subscription needed)

The judges did not criticise Erasmus directly for taking the appointment and being party to what Rasool had set out to do, but they said that it was 'inherently undesirable' for sitting judges to take up positions to chair commissions of inquiry. A Business Day report notes they also questioned Rasool's specific request that Erasmus head the commission. Full Business Day report

The DA has welcomed the ruling. James Selfe, the federal chair of the party, said that the commission had been established out of political malice, and with the overriding objective of smearing the DA. 'It is particularly gratifying that the judges held that the appointment of Judge Nathan Erasmus to chair the commission was incompatible with the separation of powers,' Selfe is quoted as saying in a report on the News24 site. And the Cape Times quotes Mayor and DA leader Helen Zille as saying the judgment vindicated the city's contention that the commission was 'a blatant abuse of power by the ANC-led provincial government'. She said the decision would set a precedent to discourage the abuse of power in other municipalities. Full report on the News24 site See also a report in Die Burger Key points of the judgment

The commission was set up by Rasool in 2007 to investigate allegations that the City of Cape Town had paid George Fivaz & Associates to spy on councillors. 'The spark that ignited the inferno was the conduct of (councillor) Badih Chaaban,' said Swain, referring to allegations that Chaaban had bribed councillors to cross the floor in a bid to topple the DA-led city council. The city appointed George Fivaz & Associates to investigate Chaaban, who was later found guilty on six charges of misconduct. Then Local Government MEC Richard Dyantyi was asked by the city to remove Chaaban from the council in October that year. This was never done and in December, Rasool established the first Erasmus Commission to investigate allegations that the city had used DA money to finance its probe, notes a Cape Times report. The first commission was repealed after the city challenged its constitutionality. A second commission was set up in March, with expanded terms of reference to include an investigation of the George Municipality. Erasmus chaired both commissions. Although Swain and Nicholson would not rule on the constitutionality of the first probe, the judges found Rasool had failed to investigate the state of affairs before proceeding with the establishment of the second commission. Swain said Rasool had argued that the city had been unco-operative. However, letters from the city to the province revealed there were strong attempts to supply Rasool with information about the alleged spy scandal. It was clear that Rasool's reluctance to allow the city to respond to the province's concerns suggested that the commission's purpose was to 'embarrass' the DA. Full Cape Times report (subscription needed)