Introduction

My purpose here is to provide an analysis of the various opinions on the Erasmus Commission -and the DA's reaction to it - put forward by Pierre de Vos, Professor of Constitutional Law at the University of the Western Cape and occasional political commentator. I do so because his attitude towards the Commission serves as a powerful illustration of a broader problem: that is, the ability of experts in various fields to properly analyse politics and the disproportionate weight attached to their political opinions by the media.

In the case of Professor de Vos, the impression is created by those news agencies which use his services that, because he is a Professor of Law, his opinion on politics is expert and objective. In other words, the two disciplines - an ability to analyse the law and an ability to properly understand politics - are fused and presented as indistinguishable, the former an endorsement of the latter. Yet Professor de Vos is by no means an expert on politics, nor is he politically neutral, although he certainly has opinions. And, as an analysis of this particular issue illustrates, a deficiency in one area can dramatically undermine one's ability to properly carry out the other.

This is a problem indicative of a great many ‘political analysts' in South Africa today, and the news agencies that use them. There are exceptions to both. They are few and far between.

What was the Erasmus Commission

By way of background: The Erasmus Commission was set up by the former ANC Premier of the Western Cape, Ebrahim Rasool, to probe the allegation that the DA-led coalition in the City of Cape Town - and Cape Town Mayor and DA leader Helen Zille in particular - had improperly used public funds to spy on their political opponents, despite the City having initiated an independent investigation into the matter, which cleared the administration and the DA of any wrongdoing.

The DA labelled the Commission unlawful and argued it had been set up by the ANC to drive a party-political agenda; and it challenged its validity in the Cape High Court. Helen Zille also argued that the Judge appointed to head up the Commission - Justice Nathan Erasmus - had allowed himself (and his position) to be abused by agreeing to the accept the chairmanship. This comment provoked considerable outrage, epitomised by the writings of Professor de Vos.

On 1 September the High Court handed down its judgment, which found in favour of the DA and the City of Cape Town on every point. It found: the Commission had been set up with a political purpose and was unlawful; the City did not have a case to answer; and Judge Erasmus had acted inappropriately in accepting his appointment to the Commission.

Subsequent to this judgment, Professor de Vos offered a qualified apology.

De Vos vs Zille: How it happened

All-in-all, Professor de Vos wrote four pieces on the Erasmus Commission, three prompted by Helen Zille's comment about Justice Erasmus and each of which was used by the media - the SABC in particular - as the basis seeking his opinion. Zille had said during a radio interview in early April this year - and her exact words are important: "some judges allow themselves to be abused and I am afraid Nathan Erasmus is one of them".

On 16 April de Vos responded with an article posted to his page on Thought Leader. In it, he took issue with Helen Zille on two points: that the DA was being "hypocritical" in trying to shut down the Commission and that her comment about Justice Erasmus was "politically stupid" and served to undermine the independence of the judiciary. This post, more than the other three, was picked up on by the media, and prompted several interviews - for hard newspaper stories and radio news bulletins - in which he was presented as an "expert".

In a subsequent speech, on 21 April, Helen Zille responded to those people that had criticised her and addressed de Vos's argument in particular, which prompted a second - and deeply flawed article from de Vos (see here for a more detailed break down of the poor use of logic in this piece) also posted on Thought Leader. In it, he argued again that Zille was wrong to oppose the Commission; that, in opposing it, she was creating the impression that she, in turn, opposed the Constitutional principle of freedom of speech and, significantly, in terms of legal precedent, that there was nothing wrong with the appointment of Justice Erasmus.

Helen Zille responded to de Vos's second article in detail on 6 May and de Vos, in turn, again responded to her with a third article on Thought Leader, on 8 May, this time arguing in detail why Zille's attack was bad for the Judiciary.

Subsequent to the 1 September High Court judgment by Justices Swain and Nicholson, de Vos wrote a qualified apology, in which he said he had been overly critical of Zille but then proceeded to defend his various criticisms (and deny he had ever proffered a legal opinion on the matter).

Pierre de Vos and Politics

Before going any further, it is worth identifying Pierre de Vos's various political attitudes. He has strong opinions, and he has many of them. Space does not allow for a detailed description of them all - suffice to say they are wide ranging. Thus I shall summarise some of the political ones here and I invite you to read his website to obtain a more comprehensive picture.

He is generally favourable towards the ANC (and here I mean in principle, he certainly does not lack for criticism of the ruling party on an issue-by-issue basis) but he has a dislike for President Mbeki and contempt for Jacob Zuma - in short, he sees the party as inherently well-meaning but having lost its way somewhat. He has a fairly conventional attitude towards the DA (at least so far as political analysts go), epitomised by his attitude towards Tony Leon, who puts up a good fight but whose style is all wrong and whose attitude on certain issues is right wing.

But perhaps most importantly, he has a certain generic disdain for politicians, he certainly does not see politics as a noble profession and almost always attributes ignoble motives to supposedly ambiguous actions. And so on, and so forth. One might well quibble on the details but what is incontestable is that he is not neutral and - as most people do - he holds several very strong personal views.

These manifest in his writings and, naturally, affect his analysis - nowhere more so than with regard to the Erasmus Commission.

It is important at this point to explain myself. I am not saying de Vos is not entitled to his opinions. Of course he is. Nor am I saying he is not entitled to express them, he is and he should - they enliven debate and add to discussion - but what I am saying is that he should not present himself to the public, or at very least not allow the press to present him, as a neutral political commentator, because that he is not. He is a law Professor with strong personal views on politics, or a blogger, but not someone with an in-depth understanding or dispassionate view of politics. And to suggest so is disingenuous and misleading. In this sense, this piece is aimed as much at the media as it is at de Vos.

How political bias subverts expert opinion

Consider the following quotes, taken from Professor de Vos's various articles on this issue:

•·          "It is not for a politician to cast aspersions on the personal motivations of a judge..."

•·          "...obviously even the most astute and media-savvy of politicians lose all sense of decorum once running a city like Cape Town."

•·         "When politicians ask us to trust them, I for one start getting suspicious..."

There is clearly a certain bias at work here: de Vos's contempt for politicians, of any hue. He has various other biases, but this particular one is clearly the underlying problem in this case. From a personal point of view, his opinion is perfectly acceptable. But, if in his guise as a ‘political analyst' his basic assumption is that all politicians cannot be trusted and that "a politician" cannot stand up for the Constitution (the Professor might be interested to know that all politicians, no matter what he might think of them, take an oath to uphold the Constitution), then he should be upfront about that bias when he provides public comment as an ‘expert'. And so should the media.

And the reason is very simple. It leads to false assumptions. In other words, his personal bias affects his ability to properly analyse a given situation. And if he does not disclose that bias, the viewer or reader cannot properly contexualise his analysis and is misled. Take this quote from de Vos for example, about the DA's accusation that the Commission was politically motivated:

• "...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..."

After considering all the evidence, here is what Judge Swain had to say on that issue:

• "...I am driven to the conclusion that [Rasool's] purpose [in establishing the Commission] was the improper one of embarrassing political opponents and more specifically the DA."
• "[Premier 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."

De Vos got it completely wrong. Quite clearly de Vos's personal bias affected his ability to properly assess the situation. But for a member of the public - reading his view in a newspaper or hearing it on the radio - that is the expert opinion of a Professor of Law. Without any qualification, the credibility of his legal position merges with his credentials as a political commentator and he magically becomes an expert in both.

Here is a second example from de Vos, with regard to the allegation that the DA had something to cover up:

• "By trying to stop a judge from finding out whether some DA politicians had broken the law, Zille seems to suggest that the DA has something to hide and that the party will do everything in its power to make sure that the truth does not come out."

And here is Justice Swain on whether the DA had acted like it had something to hide:

• "[On the City of Cape Town's papers 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."

For the record, that evidence before the judge included the report of the independent investigation commissioned by the City itself. Again, de Vos got it wrong. He assumed the DA had something to hide and thus concluded its legal action against the Commission was devious and dismissed the investigation conducted by the City. His ability to analyse the law (and politics) was negatively affected by his personal bias.

One further example: on the issue of Helen Zille's attack on Nathan Erasmus - remember she had said "some judges allow themselves to be abused and I am afraid Nathan Erasmus is one of them" - de Vos said the following:

• "To attack him personally is irresponsible and, once again, hypocritical."
• "This personal attack is deeply irresponsible and flies in the face of existing precedent."
• "This was done in a way that reeks of hypocrisy."
•  "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 that Judge Erasmus was a political lackey of the ANC. She thus attacked him personally and impugned his integrity without following the legal route first and she did this for short term political gain."
• "... the judge is attacked an in Orwellian manner accused of undermining the judiciary. This is rich, because - 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.

And here is what Justice Swain had to say:

• "...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."
• "That government would want to use judges for their purpose is one matter but that judges should allow themselves to be so 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."
• "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."

In each of these instances it is quite clear that Professor de Vos's personal bias - his dubious attitude towards politicians - infected both his political and legal analysis. Despite the evidence to the contrary, he could not but come to the conclusion on every count that Helen Zille had acted in her own interest, that she and the DA had something to hide and that her attack on Justice Erasmus was typical of politicians, who have no respect for the Judiciary or the principle of the separation of powers.

On each count his assumption was wrong and, in turn, his analysis warped. (Alarmingly, it also says much about his ability to weigh up evidence - a rather disturbing deficiency for a Professor of Law - as almost all the papers before the court, and certainly the report on the City's investigation, were public documents.)

But the problem does not end there. His personal bias is one thing and the degree to which it distorts his analysis is another; but, perhaps most disturbingly, he then proceeded to offer political advice to the DA based of the conclusions he had reached. Not only did he assume his analysis was correct but also his understanding of politics, of the ANC and of Rasool, superior:

•·         "[Zille] has every right to challenge the legality of the Commission, but politically, this is a very stupid move on her part."

•·         "[To attack Justice Erasmus] is politically stupid because it would suggest to any reasonable bystander - let alone the average voter - that the DA is trying to hide very serious corruption or maladministration from us..."

Again, Judge Swain:

• "In addition, a reasonable member of the public viewing the appointment of a judge to chair a 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 or impartiality."

It might have been advice delivered from a lofty perch, but it has since fallen a long way indeed. And it demonstrates a profound inability to properly assess current affairs.

Conclusion

Here is the crux of the matter: thank goodness no one in the DA - least of all Helen Zille - took Pierre de Vos's political advice or bought into his analysis. If they had, a gross injustice would have been overlooked because of fuzzy thinking and poor reasoning.

It is disturbing that a Professor of Law can over-extend himself to this degree (there are a great many other statements in his various opinion pieces which I could point to as problematic and which stand in stark contrast to the High Court judgment); but, more disturbing still, is that his reputation as a political analyst is built by-and-large on the very public positions he puts forward on his personal blog and, more particularly, on the more authorative Thought Leader. If he is willing to trade on those credentials, then he must be upfront about his various political attitudes as well. For when the public listen to him on the radio or on television, or read his work in the newspaper, they are not able to contexualise his opinions in the way I have done here. They look to his title as an endorsement of his analysis. Clearly though, there is huge gulf between his ability to analyse the law and his ability to apply that analysis to politics.

It is perhaps understandable why de Vos harbours the particularly bleak view of politicians that he does. The ANC's behaviour over the past 14 years has helped generate an environment in which corruption is rife and the lack of accountability a defining trait of our new democracy. I would like to think the DA is different. Indeed, I believe it is. However, whether it is or it is not is not the point. The point is Professor Pierre de Vos is biased in this regard; and yet, he presents himself as an expert able to objectively dispense analysis to the public at large. That is misleading.

That it took the DA and the High Court to prove this bias wrong on this one occasion I would hope will cause him to give the DA the benefit of the doubt next time round; or, at the very least, to reconsider his first principles - or at least be upfront about them - when providing political analysis in the future.

Nor is he is alone in this regard, there are a number of other ‘analysts' who adopted a similar attitude to de Vos on this issue but, as a Professor of Law, he epitomises the problem. And it is a problem that involves two parties: those analysts who so willingly offer their services to the mass media, and the media itself, which presents them as objective experts able to provide inform and accurate insights into current affairs. Both would do well to reflect on this issue.

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

Click here to receive the Politicsweb headlines in your inbox in the morning