Introduction

These days one hears the word corruption or mismanagement, or even investigation, and one's eyes cloud over, so prevalent is the problem. Inevitably, any serious form of corruption involves a thousand different threads, which cross in significant ways and imply a hundred disturbing things. In the same way, any proper interrogation of a corrupt act is often detailed and complex, for one needs to fully account for motive and means. It's all a bit much.

The judgement handed down by Justices Swain and Nicholson in the Cape High Court this past week, concerning the Erasmus Commission, is a case in point. It runs to 157 pages and, if anything, is a fairly dense read. But that does not mean it is not important. Quite the opposite - it is a deeply significant piece of legal precedent and worth exploring in some detail.

And it is significant for two reasons: first because it provides some relief for those who would argue (quite rightly) that the judiciary is under threat in South Africa today. It constitutes a powerful example of a court checking the power of the state and enforcing the Constitutional principle that our system of justice and our system of government be separate.

Second, it constitutes authoritative and commanding evidence of the way in which the ANC is prepared to abuse executive power to achieve its own political agenda. Very often these sorts of accusations are made but very rarely are they tested in a court of law.

So, in an attempt to make the judgment a bit more accessible, today's edition of The Real ANC Today will set out the key findings of the court, explain what they mean and elaborate on some of the implications for the ruling party. In our regular section on the Open Opportunity Society for All, at the end of this piece, we have a look the judiciary and the role the DA envisions it would play in that kind of democracy.

What was the Erasmus Commission?

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 accept the chairmanship (she had said on a radio interview: "some judges allow themselves to be abused and I am afraid Nathan Erasmus is one of them"). This comment provoked considerable outrage in the press.

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. Most importantly, and for the purposes of this overview, it found that:

· The Commission had been set up with a political purpose and was unlawful;

· The City did not have a case to answer, that it had fully cooperated and that it had nothing to hide; and

What did the press say?

With a few exceptions, the press - and in particular political commentators and editorial opinion - was highly critical of the DA. This criticism took three general lines. First, it was argued that the DA's opposition to the Commission was hypocritical, because it so often called for Commission of Inquiries itself, and, in opposing it, it was acting like it had something to hide. Second, there was wide spread condemnation of Helen Zille's attack on Judge Nathan Erasmus - she was accused of undermining the integrity and independence of the Judiciary. And, third, it was argued that the DA's attitude was indicative of a party with little respect for democratic principles such as transparency, accountability and even freedom of speech.

For a full breakdown of all the most significant comments made by the press on these three issues, and a comparison with how they contrast to the findings contained in the judgement handed down by the High Court, see here. (Also, see here and here for a detailed analysis of one of these commentators various opinions, in particular.)

What did the High Court say?

The High Court found in favour of the DA on every point. There were a number of technical arguments, which I will not explore here, but on those three key points identified above, this is what the judgment found:

On whether the DA acted like it had something to hide:

· "[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)

In short, it found that the DA had cooperated fully, that the evidence it presented - which included the report of the independent investigation initiated by the City - negated the need for a Commission of Inquiry and was comprehensive and transparent. Significantly, implicit in these findings, is the fact that the Premier presented an entirely unconvincing case to the contrary.

On whether the Commission was set up with a political purpose:

· "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)

In other words, the Premier had an entirely political agenda in trying to establish the Commission, one which was not supported by the evidence and which was based on several unlawful actions on his part.

On the appropriateness of selecting a Judge to chair the Commission:

· "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)

In other words, the Premier had used the appointment of a Judge to create the impression that the Commission was objective where it as, in fact, partisan; and it was both wrong to for a Judge accept and government to appoint a member of the bench to the Commission, as this undermined the independence of the Judiciary.

What does the judgment mean for the ANC?

The judgment has a number of significant implications for the ANC but, as space is at a premium, I will address just the four most important one here:

What it says about Premier Rasool and the Western Cape Government:

After having considered all the evidence, the High Court found that Premier Rasool and the MEC for Local Government, Richard Dyanatyi, had abused state resources for party political purposes. This is an indictment of the ANC in general and these two members of the executive in particular. It shows they are undemocratic, unable to separate party and state and willing to abuse their position. It is not simply the final verdict in this instance that is significant - i.e. that what they did was wrong - but the way in which they went about doing it that is perhaps the most disturbing. According to the judgment, the Premier was willing to use unlawful means to generate ‘evidence' and misuse the Police - who were willing accomplices - in doing so (more about that later). He was then content to overlook the facts and abuse the judiciary by attempting "to cloak his ulterior motive with the neutral colours of the judicial office". In short, there was nothing the Premier would not do to pursue his own agenda and the state and the judiciary became nothing more than play-things for him to manipulate.

What it says about the ANC's attitude to the judiciary

There is a case to be made that Judge Erasmus committed an error in agreeing to the chairmanship but, as we are focusing on the ANC here, let us look at their approach to the matter. The judgment found that Premier Rasool had done three things that acted to undermine the judiciary. First, he appointed a Judge to it, despite it serving a political purpose. Second, the procedure he followed in doing so was deeply flawed - he chose the Judge himself. The judgment puts it like this: "the correct procedure would be for the representative of the executive [Rasool] to approach the Judge President... and request that he provide a judge..." By choosing the judge himself, the Premier gave the impression that Judge Erasmus might produce a favourable outcome, which undermined the judiciary's independence. Thirdly, the High Court found that to attempt to hold the Commission's hearings in a court room was problematic, as it would only serve "to further blur the distinction between a judge performing his judicial functions and his functions as a commissioner, in the eyes of the reasonable member of the public". Thus, on almost every count, the ANC provincial government - led by Premier Rasool - used and abused the judiciary and the services of a judge for their own political ends. The consequence was damage or potential damage to the judiciary.

What it says about cadre deployment and the police:

One of the other points of contention was the behaviour of the police, in particular provincial police Commissioner Mzwandile Petros, who personally oversaw a raid on the home of Philip du Toit, unlawfully gathered evidence and then proceeded to hand it straight over to the Commission. The High Court not only found this entire procedure unlawful but had the following to say about Commissioner Petros: "I find it strange indeed that a police official of the seniority of Commissioner Petros, would find it necessary to attend a raid on do Toit's home, and I would have a grave suspicion that Commissioner Petros may have had such an objective [furthering the interests of the ANC] in mind, in furnishing the information to the Premier..." (Remember this is the same Commissioner who, in 2004, banned his communications officers at police stations across the province from reporting on crime to the media, accusing them (the media) of feeding a "psychosis of fear, despair and distrust in the authorities". The worm turns. But the main point is this: Petros's political affiliations, and his inability to separate party and state, warped his public office into a party-political machine designed to carry out and further the ruling party's agenda.

What it says about the ANC's attitude to public money:

The Premier and the Western Cape government lost the case with costs. This means that not only will the public be forced to pay for a Commission of Inquiry that was illegal, but also for a court case which stood no chance of winning. The costs will be significant and the tax-payer, not Ebrahim Rasool or Richard Dyanatyi, will have to foot the bill.

Conclusion

Very often this section of The Real ANC Today is used to discuss an ideal or value; that is, it focuses on principles, which are intangible but important because they inform practice and policy. However, in light of the High Court's judgment, today we are able to illustrate the Open Opportunity Society for All in action - i.e. in practical terms - because the DA's approach to this issue epitomises exactly that.

First, very briefly, let me set out some of the principles that govern the judiciary in an Open Opportunity Society for All and which are relevant to this example: One of the chief benefits of a properly functioning and independent judiciary is that it acts as a safeguard against the abuse of power by the state. By existing at all, it acts as a buffer - a well-established system between the state - or other sources of power in society - and individual citizens. As such, it also levels the playing field - by reducing even an entity as powerful as the government to an equal standing with that of any given individual.

Returning to our practical illustration; by attempting to set up an unlawful Commission and to cloak it in the ostensibly neutral colours of judicial office, what the ANC was doing was acting to warp this buffer, to introduce unfair advantage into a system of due process and, ultimately, to nullify the space between the government and the judiciary. The buffer was supposed to be the Erasmus Commission of Inquiry but it was deeply flawed and, instead of maintaining that space between state and judiciary, it brought them closer, even blurring the two.

Thus the DA's intervention and the High Court judgment powerfully illustrate the importance of this principle: The DA's action as the City of Cape Town - in being prepared to fight for this value by going to court - and the Court's ruling - in enforcing this principle in the face of executive abuse. Here we have both parties, on either side of the buffer, acting to ensure it is not abused but respected. There was recognition, by both sides, that the space between state and judiciary is sacred and under threat by the ANC, that it must be properly constituted, respected and that any unjust encroachment on it must be defeated.

That, is the Open Opportunity Society for All in action.

This article first appeared in the Democratic Alliance weblog, The Real ANC Today, September 7 2008