Erasmus Commission verdict must have consequences for those complicit in the abuse of power

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 it 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 any form of public office.

It is inappropriate for Minster 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 and sanctioning 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.

Statement issued by Helen Zille, Democratic Alliance leader and Mayor of Cape Town, September 3 2008