The second main source of information relied upon by the Premier [Ebrahim Rasool] was the police in the form of Commissioner Petros who, during October 2007 disclosed to the Premier information discovered at the home of [Phillip] du Toit of [George Fivaz and Associates], during a search conducted at du Toit's home:

This information included audio recordings of conversations found on du Toit's computer, which were played to the Premier, as well as electronic copies of quotations and invoices from GFA. At the request of the Premier, Commissioner [Mzwandile] Petros addressed the Provincial Cabinet on the evidence he had shown the Premier Commissioner Petros did not show the members of the cabinet the evidence, but talked them through it. As a consequence, it was decided that the MEC should address a Section 106 query to the City.

The City submits that the sharing of this information by the police with the Premier, was unlawful and, this would have been realised by any senior political figure with a modicum of appreciation for constitutionality and the rule of law, on the following grounds:

A search warrant constitutes an invasion of the individual's fundamental right of privacy According to the City, as alleged in its replying affidavit, du Toit was arrested on 20 September 2007 on suspicion of hijacking and a warrantless search was conducted at his home, which Commissioner Petros attended. A further search at du Toit's home, on a warrant issued in respect of suspected illegal monitoring and interception, was conducted by the Organised Crime Unit. Documents and audio recordings were seized.

A search warrant is issued for a purpose and in the case of du Toit, to investigate the suspected crime of illegal monitoring. The documents and recordings, being the private documents and property of du Toit, could be used for no other purpose. than the criminal investigation. In accordance with the constitutionally mandated invasion of privacy required for criminal investigations; it is implicit in the search provisions of the Criminal Procedure Act No, 51 of 1977 that documents or articles seized under a search warrant must be used only far the mandated purpose.

On this basis it is submitted that the disclosures made by Commissioner Petros to the Premier were unlawful.

It is also submitted that a consideration of the Constitution reveals that it was improper of Commissioner Petros to do so.

The objects of the police service are listed in Section 205(3), and do not extend to sharing with the executive government information seized in criminal investigations.

Section 206 (3) sets out the province's powers in respect of policing, and the province does not have an entitlement to receive information from the police on specific criminal investigations.

Section 206 (9) empowers the Provincial Legislature to require the provincial commissioner to appear before it, or any of its committees to answer questions and in terms of Section 207 (5) the provincial commissioner must report annually to the Provincial Legislature.

It is submitted these provisions are in keeping with the view that the relationship of the police with government should be politically neutral. If the provincial commissioner is to give information, it should be to the Legislature (in which all parties are represented), not the executive. The Premier is given no constitutional power to require a provincial commissioner to answer his questions. Section 199 (7) provides that, neither the security services, which includes the police service, nor any of its members, which includes Commissioner Petros may, in the performance of their functions, prejudice a political party interest that is legitimate in terms of the Constitution, nor "further in a partisan manner, any interest of a political party".
The City has referred us to a number of Commonwealth cases, where the need for independence between the police and the executive, when it comes to criminal investigations has been emphasised.

[CUT]

In the light of the aforegoing the City submits that the use by the Premier and the MEC, of information obtained by the police in searches conducted at the home of du Toit was unlawful.

I agree with this submission. The independence of the police in the Investigation of crime is a vital aspect of the rule of law and the separation of powers. The vesting of powers of search and seizure in police officers in terms of Section 21 of the Criminal Procedure Act, encroaching as such powers do upon the rights of individuals, have to be exercised in a fair and reasonable manner, with the sole object of achieving the purpose for which such powers were conferred, namely the investigation of crime by the police. The use of information obtained as a result of the exercise of such a power for any other purpose would be unlawful.

If the information obtained as a result of the searches at du Toit's home revealed the commission of any crimes by du Toit, or anybody else, this should have been fully investigated by the police and then handed to the Director of Public Prosecutions for the appropriate action.

Such information should not have been supplied to the executive branch of government in the form of the Premier, for investigation by a commission of inquiry. Even if such information carried an implication of maladministration on the part of the City, in relation to any suspected criminal conduct, this did not justify the disclosure of what had to be regarded as confidential information in the hands of the police, which had to be used for one purpose, namely the investigation and prosecution of any crimes revealed by its contents, by the appropriate prosecuting authority.

Once any criminal prosecution had been finalised, if evidence of maladministration emerged during such process, that would be the appropriate stage for such evidence to be handed either to the City for disciplinary purposes, or to the MEC for possible action in terms of Section 106 of the Systems Act.
We are advised in the City's heads of argument, which has not been disputed, that du Toit has not had any charges put to him and that the Organised Crime Unit has stated that the case against him cannot proceed until the findings of the Erasmus Coinmissian are finalised.

This is an intolerable situation, where a private citizen has to wait for a commission of inquiry, (which for reasons I will deal with below, has no business investigating the specified criminal offences), to achieve finality in respect of criminal charges which may or may not be preferred against him, depending upon the outcome of the investigation of the Erasmus Commission.

The City submits that the inference is inescapable that the conduct of Commissioner Petros in supplying this information to the Premier, had as its object the furthering of the interests of the ANC in the Western Cape, in a partisan manner and that the Premier knew and intended that Petros should do so. Such conduct would be a violation of the provisions of Section 199 (7) of the Constitution.

Although I find it strange indeed that a police official of the seniority of Commissioner Petros would find it necessary to attend a raid on du Toit's home, and I have a grave suspicion that Commissioner Petros may have had such an objective in mind in furnishing the information to the Premier, I cannot on these papers, find as a fact that this was his objective.

An important point made by the City is that a provincial commission under the Western Cape Commissions Act has the power to issue subpoenas, but has no power to issue search warrants, or to cause search warrants to be issued. Consequently, the search powers of the police, under the Criminal Procedure Act which are conferred solely for the purposes of criminal investigation by the police, have been used to provide extensive information to the Commission.

In my view therefore, the furnishing by Commissioner Petros of this information to the Premier, was unlawful and this should have been appreciated by an official of the seniority of the Premier.

This is an extract from the judgment by Swain J in the matter of the City of Cape Town versus The Premier of the Western Cape and The Honourable Justice Nathan Erasmus (and others) September 1 2008