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How the press got it wrong on the Erasmus Commission

Gareth van Onselen |
04 September 2008
What the commentators had to say versus what the High Court decided

A comparison of some of South Africa 's mainstream political analysts' views on the DA's criticism of the Erasmus Commission and the judgement handed down by the High Court on the Commission's legality.

By Gareth van Onselen

What follows is a brief collection of quotes, drawn from a range of political commentaries and editorial opinions. They all have two things in common: they all concern the Erasmus Commission and they are all completely wrong. Indeed, when one places each quote in comparison with the respective finding in the judgment of the two High Courts Judges who delivered their verdict on the Commission's legality, the stark contrast between the Judge's conclusion - reached after careful scrutiny of the evidence - and the knee-jerk reaction that defines all the opinions pieces referenced below, is marked and unmistakable. So, the question then becomes, if these commentators are the experts we look to for our political analysis, how good are they really? Read their opinions for yourself and make up your own mind.

On the appropriateness of the Erasmus Commission:

The Analysts:

  • "The provincial government, acting properly, in my view, has instituted a commission of inquiry to probe the allegations and make recommendations." ( Jovial Rantao , The Star, 14.04.2008)
  • "...to say that Mr Rasool might have a political axe to grind and might want to gain a political advantage out of this, and that the whole exercise is therefore illegitimate is also laughable - coming as it does from the DA." (Pierre de Vos, Thought Leader , 23.04.2008)
  • "Here we have a Commission set up in terms of Provincial Legislation to establish wrongdoing by the City, which seems very close to the judicial function and therefore does not suggest an infringement of the principle of the separation of powers." (Pierre de Vos, Thought Leader , 23.04.2008)

Justices Swain and Nicholson:

  • "What then was the Premier's purpose? If due regard is paid to the above factors, namely, evidence the Premier was aware of which contradicted concerns of beliefs he professed to hold on major issues, his reliance upon two sources of information which he must have appreciated was unlawful, as well as the political background against which the Commission was established, as well as the absence of any credible purpose advanced by the Premier for establishing the Commission, I am driven to the conclusion that his purpose was the improper one of embarrassing political opponents and more specifically the DA" (Swain J, Pg 74, The City of Cape Town versus The Premier of the Western Cape and others, 01.09. 2008)
  • "...[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." (Swain J, Pg 130, The City of Cape Town versus The Premier of the Western Cape and others, 01.09. 2008)

On Helen Zille's attack on Judge Erasmus and its effect on the judiciary:

The Analysts:

  • "...Zille has resorted to personal slight by repeatedly attacking the integrity of Judge Nathan Erasmus - a ploy that itself threatens to undermine the judiciary." (Editorial, Cape Argus , 23.04.2008)
  • "Democratic Alliance leader Helen Zille's stinging attack on Cape High Court Judge Nathan Erasmus is wrong." (Editorial, Sunday Times, 27.04.2008)
  • "Her outburst... has the potential of casting aspersions on the entire judiciary." (Editorial, Sunday Times, 27.04.2008)
  • "...let's face it, it is the statement by Zille - and not the actions of a judge acting in terms of legislation - that is undermining the independence of the judiciary." (Pierre de Vos, Thought Leader , 23.04.2008)
  • "In an attempt to undermine the credibility of the Commission and to score a short term political advantage for herself and her party, she suggested Judge Erasmus was a political lackey of the ANC." (Pierre de Vos, Thought Leader , 23.04.2008)

Justices Swain and Nicholson:

  • "Having found that the Premier did not possess an honest belief that good reasons existed for establishing the Second Erasmus Commission, and acted with the ulterior motive of embarrassing political opponents, these words assume even greater significance on the facts of this case. In this context I find the inference irresistible that one of the reasons why the Premier appointed a judge to chair the Commission, was in order to cloak his ulterior motive with the neutral colours of the judicial office." (Swain J, Pg 138, The City of Cape Town versus The Premier of the Western Cape and others, 01.09. 2008)
  • "My abiding concern is that the ultimate loser in this dispute, will be the administration of justice, in the form of a loss of confidence on the part of the general public, in the independence of the judiciary." (Swain J, Pg 142, The City of Cape Town versus The Premier of the Western Cape and others, 01.09. 2008)
  • "That the government would want to use judges for their purposes is one matter but that judges should allow themselves to be used is quite a different one... The notion of being used by the executive in this way is anathema to the judicial calling and is the very antithesis of the separation of powers." (Swain J, Pg 150, The City of Cape Town versus The Premier of the Western Cape and others, 01.09. 2008)

On the DA's political judgement and the ‘average voter':

The Analyst:

  • "[Suggesting Judge Erasmus is being used] is also politically stupid because it would suggest to any reasonable bystanders - let alone the average voter - that the DA is trying to hide very serious corruption and maladministration from us..." (Pierre de Vos, Thought Leader , 16.04.2008)

Justices Swain and Nicholson:

  • "It is therefore quite clear that the appointment f a judge to chair the commission created the risk of judicial entanglement in the matters to be investigated which were politically controversial. I addition, a reasonable member of the public viewing the appointment of a judge to chair the commission, having due regard to the subject matter to be investigated, would reasonably apprehend that the participation of a judge would conflict with the judge's independence of impartiality." (Swain J, Pg 150, The City of Cape Town versus The Premier of the Western Cape and others, 01.09. 2008)

 

On the DA's opposition to the commission and the party's ‘hidden agenda':

The Analysts:

  • "Zille's vehement opposition to the commission... is alarming... Instead of taking her evidence to the commission to be tested, Zille is attacking an institution essential to the culture of accountability in a democracy." (Editorial, The Times, 12.02.2008)
  •  "...it is with bafflement that one watches the DA - twisting and turning with the desperation of a buck trying to slip away from a predator - in its efforts to kybosh the Erasmus Commission's inquiry into the murky world of Cape Town politics." (William Saunderson-Meyer; Natal Witness, 19.04.2008)
  • "What is Helen Zille got to hide? What is it that the Democratic Alliance is desperately trying to keep away from the public? What is it that the City of Cape Town , run by the DA, is trying to hide from the ratepayers?" ( Jovial Rantao , The Star, 14.04.2008)
  • "How can the residents of Cape Town be comfortable that the city is spending a huge amount of money to conceal something from them?" ( Jovial Rantao , The Star, 14.04.2008)
  • "One would have thought that if the DA - and Zille in particular - had nothing to hide, it would welcome the chance to clear its name through such a commission of inquiry." (Pierre de Vos, Thought Leader , 16.04.2008)

Justices Swain and Nicholson:

  • "[On the basis of the City's evidence before me] there is no evidence to cast doubt on the veracity of these responses. Consequently, in my view, as the responses deal directly and fully with the Premier's concerns, they should have been allayed by appropriate enquiries." (Swain J, Pg 96, The City of Cape Town versus The Premier of the Western Cape and others, 01.09. 2008)
  • "The evidence he [Rasool] has before him, which contradicted his beliefs, did not reasonably call for elucidation by way of a commission of inquiry, but by way of reasonable enquiries directed at the City." (Swain J, Pg 128, The City of Cape Town versus The Premier of the Western Cape and others, 01.09. 2008)
  • "The most obvious source of information to re-evaluate the need for a Commission, namely the City, was ignored." (Swain J, Pg 74, The City of Cape Town versus The Premier of the Western Cape and others, 01.09. 2008)

On the cost of the City of Cape Town opposing the Commission in court:\

The Analyst:

  • "[The delays in establishing the commission, caused by the DA's legal action] are totally unnecessary, will cost the Cape Town ratepayer a bomb in fruitless expenditure. They are almost an abuse of office by the city which has the majority seats in the Cape Town city council." ( Jovial Rantao , The Star, 14.04.2008)

Justices Swain and Nicholson:

  • "The First and Second Respondents [Premier Ebrahim Rasool and MEC Richard Dyanatyi] are ordered to, jointly and severally to pay: 3.1. The costs of the Applicant and the Intervening party [The City of Cape Town and the DA], the cost of three counsel and in the case of the intervening party, the cost of two council." (Swain J, Pg 155, The City of Cape Town versus The Premier of the Western Cape and others, 01.09. 2008)

On the DA and hypocrisy:

The Analysts:

  • "So it cannot be correct that the DA demands transparency only when the dirty linen of its opponents must be hung in public and then oppose any moves for their own linen to be seen by the public. It is hypocritical." ( Jovial Rantao , The Star, 14.04.2008)
  • "[Anything other than cooperating with the Commission] will leave them tarnished as hypocrites who want rules to be followed only when they suit them." ( Jovial Rantao , The Star, 14.04.2008)
  • "[With regard to Zille's attack on Judge Erasmus]: "What hypocrisy." (William Saunderson-Meyer; Natal Witness, 19.04.2008)
  • "[Opposing the Commission] also makes Zille look like a rank hypocrite..." (Pierre de Vos, Thought Leader , 16.04.2008)
  • "[Opposing the Commission] is a deeply illiberal stance and flies in the face of the values espoused by the DA and Zille, and creates the impression of serious hypocrisy." (Pierre de Vos, Thought Leader , 23.04.2008)
  • "...the way this was done reeks of hypocrisy." (Pierre de Vos, Thought Leader , 23.04.2008)
  • "Hypocrisy of the highest order rules again." (Pierre de Vos, Thought Leader , 23.04.2008)

Justices Swain and Nicholson:

  • "I am therefore satisfied that the appointment of a serving judge to chair the Second Erasmus Commission was incompatible with the separation of powers and therefore unlawful and invalid." (Swain J, Pg 153, The City of Cape Town versus The Premier of the Western Cape and others, 01.09. 2008)

On the DA being just like the ANC:

  • "There are interesting similarities between the strategies adopted by Zille and the DA and that of ANC President Jacob Zuma." ( Jovial Rantao , The Star, 14.04.2008)
  • "[The DA's argument that the Commission is politically biased] sounds awfully familiar. Is that not the kind of thing that ANC politicians say when they try to rubbish investigations of corruption against its own members?" (Pierre de Vos, Thought Leader , 16.04.2008)
  • "[Attacking Judge Erasmus] is no different from the ANC Youth League and Young Communist League diatribes and shows a scandalous disregard for our Constitution." (Pierre de Vos, Thought Leader , 16.04.2008)
  • "Her conduct is no different from that of the ANC..." (Editorial, Sunday Times, 27.04.2008)

On Helen Zille's responsibilities:

  • "As national leader of the DA, Zille has a duty to demonstrate that she practices what she preaches. She has a responsibility to lead the DA to co-operate with the Erasmus Commission." ( Jovial Rantao , The Star, 14.04.2008)

On the DA and constitutional values:

  • "...by attempting to stop the Erasmus Commission from hearing allegations of illegal spying activity, the DA is indirectly pushing for these matters to be heard away from public eye and ears." ( Jovial Rantao , The Star, 14.04.2008)
  • "To impugn the judiciary, without a shred of evidence, is to undermine our valuable young democracy." (William Saunderson-Meyer; Natal Witness, 19.04.2008)
  • "[Helen Zille] is adjusting her principles in front of the very voters she promised she would run a clean and accountable administration." (William Saunderson-Meyer; Natal Witness, 19.04.2008)
  • "...Zille seems to suggest that she does not believe in freedom of expression because she does not trust the truth to come out in the end." (Pierre de Vos, Thought Leader , 16.04.2008)

On Helen Zille and the DA's ‘political judgement' in opposing the Commission:

  • "Zille is making a political mistake that will cost the DA dearly." (William Saunderson-Meyer; Natal Witness, 19.04.2008)
  • "She has every right to challenge the legality of the commission, but politically, this is a very stupid move on her part." (Pierre de Vos, Thought Leader , 16.04.2008)

On the DA's need to apologise

  • "...a grovelling apology to Erasmus wouldn't come amiss." (William Saunderson-Meyer; Natal Witness, 19.04.2008)
  • "[Helen Zille] should retract her statement." (Editorial, Die Burger, 16.04.2008)
  • "If Zille was really a woman of principle, she would, at the very least, have apologised for the comment..." (Pierre de Vos, Thought Leader , 16.04.2008)

Gareth van Onselen is the DA's director of special issues, based in Parliament