AFFIDAVIT

I, the undersigned,

HELEN ZILLE

do hereby make oath and say:

Introduction

1. Before dealing with the detail of the answering affidavit, it is convenient to succinctly state my overall reaction to what he has had to say. A consideration of the Premier's affidavit as a whole gives rise to the unfortunate but inescapable impression that he has acted herein on the basis of a paranoid suspicion that facts as reported to the Province by municipal officials and political office bearers in respect of the discharge of their statutory functions cannot be trusted and that there must be an investigation directed at establishing that what appears to be, is not what it appears to be. Not only is this a manifest breach of the Premier's obligations in terms of Chapter III of the Constitution, but if applied equally in all dealings with municipal government throughout the Province - a relevant test for the rationality of the Premier's conduct, in my submission - it would paralyse the working of local government and make working relationships between the respective spheres of government impossible. That would not only be unlawful, but also manifestly not to the public benefit.

2. It is also apparent from the Premier's answer that his appointment of a commission of inquiry is not intended to obtain information to enable him to make decisions or furnish the City with advice, as he claims. A reading of the document as a whole contains numerous indications that the Premier has already arrived at unfounded conclusions which he seeks to use to purely political advantage. I believe that the Premier is fully aware of the unfounded nature of the conclusions he describes in his answering affidavit. Were the position otherwise, and if he had any belief in the cogency of the spectre of corruption he conjures against myself and other members of the City's political government and civil administration, he would have referred them to the police and/or the NPA (being the constitutionally mandated organs of state specially provided to deal with such matters). The commissions of inquiry are the route he has chosen because he has realised that they afford a vehicle to cloak his political objectives with the outward respectability of an apparently judicial imprimatur notwithstanding that any findings that might be made by a commission are not amenable to challenge in a judicial process. In this respect it is significant that the Premier initially maintained that he had no intention of appointing a commission of inquiry and that he intended the matter to be dealt with by the auditor-general, police and prosecuting authorities. (I refer to paragraph 53 of his answering affidavit.) I find it unsurprising in the circumstances that he has given no plausible explanation for changing course.

3. I did not make the founding affidavit in this application because I was not in Cape Town when the application was launched and because the Speaker, Cllr Smit, was directly involved in the institution of the investigation into the suspected breaches of the Code of Conduct by Chaaban and the employment of GFA in that connection. I am making the main replying affidavit because I consider it appropriate to do so in the context of the misdirected suggestions in the answering papers that the application is an application by the Speaker instead of the City and because the answering affidavit raises wider issues including scurrilous innuendos about my personal probity and that of other senior political and non-political office bearers of the City. I also consider it appropriate in the context of my availability to make this affidavit that I as executive mayor should speak on behalf of the City in reply to the issues of fundamental constitutional significance that arise from the Premier's position as it appears from his answering affidavit.

4. I have read the answering affidavits and reply as set out below. For convenience I shall record the applicant's reply not only on matters within my own knowledge but on some matters which will be confirmed by others. Submissions on legal matters are based on legal advice, which I have considered and verily believe to be well-founded.

5. I adopt the abbreviations used in the founding papers. I shall refer hereafter, where convenient, to the Premier and MEC collectively as ‘the respondents'.

6. Given the urgency of the case, the scale of the answering papers and the limited time afforded by the agreed timetable to draft this affidavit, I do not intend to comment on every paragraph of the answering affidavits. The contents thereof are denied where they are at variance with what is stated in the founding papers or elsewhere herein. The respondents' legal submissions will be dealt with by counsel in argument. My failure to traverse them does not imply acceptance of their correctness.

Ad para 7 of first respondent's affidavit

7. I am unable to reconcile the deponent's professed ‘surprise' with the content of his counter-application.

Ad para 9

8. A consideration of my letter to the Premier, annexure ER 12 to his affidavit, will make it evident that the Premier's alleged perplexity is, to put it kindly, affected.

Ad para 10

9. The respondents take the point that the City's notice of motion does not seek an order reviewing and setting aside the MEC's s106(1)(b) decision of 27 November 2007. This was an oversight. It is clear from my founding affidavit (paras 121-167) that such relief was intended to be sought. The grounds of review aimed at that decision have been fully traversed by the respondents and is indeed sought by the DA, whose application to intervene as second applicant is not opposed by the respondents.

10. The City will thus at the hearing seek an amendment to its notice of motion by inserting a prayer 1A reading as follows: "An order reviewing and setting aside Second Respondent's decision, taken on or about 27 November 2007, to appoint an investigation in terms of s106(1)(b) of the Local Government: Municipal Systems Act 32 of 2000, as reflected in ‘DS12' to the founding affidavit".

Ad para 11

11. I deny the Premier's assertion, made here and elsewhere, that his decision to establish the first Erasmus Commission was an independent one rather than an ancillary decision as envisaged by s106(2) of the Systems Act. The objective facts are clear.

Ad para 12

12. The statutory provisions to which the Premier refers obviously fall to be construed and applied in a manner consistent with the Constitution. In this respect, the Premier's reference to what he perceives to be his ‘almost untrammelled power' is telling.

Ad para 17 and 18

13. The "other valid responses" mentioned by the Premier are not proper functions of a provincial government in relation to an autonomous municipality.

14. The second last sentence of paragraph 18 is demonstrably untrue. I shall deal with this more fully below.

15. I have been advised by both Nortje and Stewart that the SAPS investigation in this respect is not currently ongoing and that SAPS is awaiting the Erasmus Commission's findings. Nortje has been specifically informed that the current criminal charges against his clients, (Van Heerden and Du Toit) cannot proceed, as SAPS is awaiting the outcome of the Erasmus Commission. Stewart has been similarly informed. Indeed I am advised that the SAPS investigation in this matter has been directed to some extent by the Commission itself. I deal with this aspect in more detail below.

Ad para 20

16. It is fundamentally objectionable that the Premier solicited and relied upon information collected by the first Erasmus Commission in circumstances where he knew that its lawfulness was seriously contested. Although the respondents have declined to disclose the legal opinions they received, the Premier's guarded references to them later in his affidavit suggest that he was advised that there was substance in the City's objection to the establishment of the first Erasmus Commission.

17. For the rest, the City adheres to its case as to the Premier's motives as set out in the founding affidavit.

Ad para 21

18. The Premier's so-called "overarching concern" does not find expression in the full name of the second Erasmus Commission.

19. The Premier asserts here and elsewhere that the GFA investigation was prompted by the damage which Chaaban could cause the coalition in the run-up to the floor-crossing period. This is denied. The investigation was prompted by the improper methods Chaaban was using to entice floor-crossing, which methods prima facie constituted serious misconduct by him as a councillor. Chaaban was not the only politician likely to be engaged in municipal floor-crossing negotiations, but he alone was targeted for investigation precisely because of his suspected improper methods.

20. The Speaker has made it clear that it was his decision to institute the investigation into Chaaban. He took the decision in the discharge of his statutory duty in terms of the Systems Act. It should be evident to the respondents from the information with which they have been provided that the investigation was instituted as a consequence of reports to the Speaker by councillors and information that he was given that Chaaban was attempting to bribe councillors into crossing the floor. These complaints included a complaint from the ID supported by a taped conversation.

21. I deny that the commission was inspired by ‘serious allegations'. The Premier has not identified a single credible source of the allegations to which he refers. The allegations in question are in fact no more than the respondents' mischievous abuse of the information provided to the MEC in terms of s 106(1)(a) of the Systems Act and material seized in questionable circumstances in raids on the houses of GFA agents.

22. A true example of "serious allegations" were those which received headline news in 2005 to the effect that in consequence of the Big Bay tender debacle (which occurred during the ANC-led administration of the City) the people of Cape Town stood to lose some R15 to R20 million. Concerning these allegations (which proved to be true) the Premier and the MEC did absolutely nothing, not even a letter of inquiry under s106(1)(a) of the Systems Act.

23. Similarly, and notwithstanding SCOPA's comments regarding the abuse of millions of rands by the City under ANC leadership in the Full Swing Trading matter, neither the Premier nor the MEC have seen fit to pursue any inquiries at all.

24. In the circumstances, the Premier's explanation as to the motives which inspired his establishment of the Erasmus Commission ring hollow and should be rejected as false.

Ad para 25

25. It is telling in my view that the MEC's failure in more than six months to respond positively to the municipal council's resolution requesting that he exercise his statutory power to remove Chaaban as a councillor is not included in the expanded ambit of the second Erasmus Commission's terms of reference. It points strongly in support of my description of the exercise as nothing more than the provision of an ostensibly respectable vehicle for a political witch-hunt. I am therefore not surprised that the Premier has not considered that the public interest in the reasons why the ANC voted against the removal of a person described by the Premier as a ‘disservice to governance' and the consequent failure of the MEC to respond positively to the motion for Chaaban's removal should be satisfied by investigation by a commission of inquiry. I venture, however, that this Court and the public should regard this objectively as disturbingly anomalous. It bears on my contention that the respondents are not acting in good faith.

Ad para 26.1

26. I deny that the commissioned investigation went beyond what was appropriate in the light of Chaaban's suspected misconduct as a councillor.

Ad para 26.2

27. The Premier refers here and elsewhere to supposed unlawful surveillance. However, his affidavit contains no evidence that unlawful surveillance methods were used. On the contrary, the report of the first Erasmus Commission's evidence-leader (Petersen) dated 4 March 2008 ("ER14" - hereafter referred to as the Interim Report) records in paragraph 11.3.8 that Petersen had found no evidence to date that third-party monitoring of conversations took place without the permission of one of the parties to the conversations. As appears from paragraphs 10.8.1 and 10.8.2 of the Interim Report (where the relevant legal provisions are set out), the monitoring was thus lawful.

28. As regards other forms of surveillance, the Interim Report states Du Toit's assertion that all such surveillance was conducted from areas to which the public had access. The Interim Report contains no evidence of trespassing, unlawful entry or the like.

29. This vindicates what the City has consistently asserted. The Premier demonstrably acted under a fundamental misapprehension if he established the second Erasmus Commission in the belief that there had been unlawful surveillance.

Ad para 26.3

30. Here and elsewhere the Premier draws a sinister inference from the fact that at about the same time the DA and the City had similar concerns concerning Chaaban's conduct. However, it was entirely to be expected that Chaaban's behaviour should simultaneously attract the attention of the DA and the City. The simple fact is that Chaaban's behaviour was prima facie a serious breach of his duties as a councillor and thus a proper matter for investigation by the City. Indeed, the Premier elsewhere accepts that this was so.

Ad para 26.4

31. I dispute that correct procedures were not followed in GFA's appointment or that there was manipulation of any kind.

32. It appears that whereas George Fivaz & Associates Western Cape (Pty) Ltd (with company registration number 2001/026997/07) was listed with the City as an approved supplier, there is a company called George Fivaz & Associates Southern Cape (Pty) Ltd (with company registration number 2007/000447/07) which was not so approved, and that the GFA invoices submitted to and paid by the City bore the latter company's registration number. The corporate profile of the approved GFA ("ER17" at p 980) indicated that GFA had offices throughout South Africa . Apart from the company number on the invoices (which were submitted after GFA's engagement), there was nothing in GFA's quotations or reports to indicate that the entity which the City had engaged was not the approved GFA.

33. It was only upon reading the answering papers that the existence of the second GFA company came to my knowledge and that of the City Manager. If an error occurred, it was understandable, in good faith, and of a highly technical nature.

Ad para 26.5

34. The concerns as to physical security and safety were most definitely a genuine concern from the outset, as the Speaker attested in the founding affidavit. It is not correct that GFA's first report ("ER1") made no reference to these issues: paras 1.2, 2.2 and 6.2 of that report referred to intimidation, threats and threatened assaults. The Speaker's genuine concerns manifested themselves in the arrangement, at his behest, of extra security for various councillors, including for himself and me at the time. The notion that the Speaker would have been acting in this respect as a pawn in a DA-arranged charade (as the respondents would apparently imply) is utterly absurd. As mentioned, the information before the Speaker included a report by Cllr. Grindrod of the ID, supported by tape-recorded evidence. The respondents' professed suspicions cannot be founded in good faith.

35. It is not true that the City made no reports to SAPS. At the Speaker's request, Du Toit delivered statements and recordings which GFA had collected to Supt Siegelaar of SAPS (Head of Detective Services at Cape Town Central) on 26 June 2007. It appears from the Interim Report (para 11.2.3 p 811) that according to Siegelaar the statements were reviewed by a public prosecutor but were felt by him and the prosecutor not to be sufficient to justify criminal charges.

36. Smit disagreed. On 11 July 2007 he attended at the Cape Town police station with Mr Blythe (an attorney at Fairbridges) and laid charges based on these and further statements (case number 24477/10/2007.

37. I may add that as early as 11 June 2007 the Speaker caused to be posted on the City's website his letters of that date to me and to Chaaban, in which letters he referred inter alia to Chaaban's threats of violence and said that in accordance with his statutory duties he would be reporting the matter to SAPS. A copy of those letters, and the Speaker's statement, all as posted on the website, are annexed as "HZ1".

38. All of these facts could easily, and at no expense, be verified by the respondents without a commission of inquiry.

Ad para 27

39. It is correct that in the disciplinary hearing the prosecutor relied on direct evidence, but the evidence was from witnesses whom GFA had interviewed and from whom GFA had taken statements. The Interim Report (para 12.4.1) records that the charges against Chaaban related to services performed by GFA in its first investigation.

40. The fact that evidence uncovered by the later GFA investigations was not actually used in the disciplinary hearing does not justify the Premier's suspicion that these further investigations had some other purpose. Moreover, the prosecutor appointed by the City (an attorney at Fairbridges, Mr Bernhard Kurz) took the view that the charges as formulated with his assistance were sufficiently serious that it was unnecessary to complicate the proceedings with other charges which might be more difficult to prove. The Speaker has explained to me that he considers that it would have been inappropriate to have appointed an independent outside professional to act as initiator and then seek to prescribe how that professional should discharge his mandate. I agree. I also refer to Mr Kurz's affidavit to be filed herewith.

41. Since Chaaban's misconduct was believed to be ongoing, there was every reason for the Speaker to continue GFA's engagement beyond 24 August 2007, even though by then he believed he had enough evidence to formulate charges to put to Chaaban. The City would have been entitled to add further charges if further investigation revealed misconduct which the City's legal representatives thought appropriate to include in the disciplinary proceedings.

Ad para 28

42. The Speaker has pointed out to me that he emphasised on several occasions to Du Toit that the investigation had to be dealt with confidentially and professionally and that he was not to share information with any political party. According to the Speaker, this is borne out by the tape recordings made available to the Premier by the Provincial Commissioner of Police. It is notable that the Premier has refrained from disclosing these aspects of the recordings in his affidavit. His failure reflects adversely on the respondent's bona fides.

Ad para 30

43. The Premier claims here and elsewhere that I acknowledged the seriousness of the possible maladministration in the City by appointing the Jordaan inquiry. This is a cynical distortion of the truth.

44. The SAPS investigation had, as now appears from the Premier's affidavit, culminated in a briefing by Commissioner Petros to the Provincial Cabinet on 24 October 2007. I viewed the police investigation and press leaks as a campaign orchestrated by the WCPG to embarrass the City. I thus felt the need to respond to a controversy created by the respondents themselves. But for the respondents' actions, there would have been no misinformed controversy requiring refutation. However, since the controversy existed, I wanted to ascertain whether anything wrong had occurred so that mistakes (if any) could be acknowledged and corrected.

45. As pointed out above, there is to this day no evidence of unlawful surveillance, despite all the evidence collected by the first Erasmus Commission (which in turn includes all relevant evidence collected by SAPS).

Ad para 33.1

46. My assurance as here recorded is not gainsaid by anything in the answering papers, and I stand by the assurance.

Ad para 34

47. I deny that the Premier expected the City to acquiesce in the establishment of the second Erasmus Commission. He must have known that its establishment would be hotly contested. After all, at least two grounds contained in the draft review papers furnished to him in respect of the first Erasmus Commission were equally applicable to the establishment of the second Erasmus Commission (namely the absence of a power by the Premier to appoint a commission into municipal affairs independently of s106(2) of the Systems Act, and bad faith). It is profoundly disturbing that the Premier should characterise the issues raised in my letter, annexure ER 12 to his affidavit, as ‘technical concerns'. His attitude plainly illustrates the futility of pursuing further any dispute resolution process under the Framework Act.

Ad paras 38-39

48. Although (so I am advised) the filing sheet under cover of which the respondents' answering affidavits were filed indicated that an affidavit by Commissioner Petros would be served, the City's legal representatives have subsequently been informed that no such affidavit will be forthcoming.

49. The City does not admit that SAPS came across the material at Du Toit's home coincidentally while investigating "certain unrelated crimes" (though what Commissioner Petros told the Premier, I cannot say).

50. I personally do not know the true facts in this regard, but I understand from Du Toit's legal representative, Adv J.A. Nortje ("Nortje"), that Du Toit's home was searched by the Organised Crime Unit ("OCU") on 20 September 2007 (without a warrant, this being the occasion of his arrest on a supposed hijacking charge) and again on 28 September 2007 (this time on a warrant issued in respect of supposed illegal monitoring and interception). Commissioner Petros himself was in attendance during the first search, which is regarded by Nortje (who was formerly the Director of the Legal Department of SAPS Western Cape ) as highly unusual. The search on 28 September 2008 occurred just a few weeks after the Speaker had reported to the MEC on 24 August 2007 that Chaaban would be facing disciplinary charges. Du Toit believes that the purpose of the search at his home was specifically to discover information relating to the Chaaban investigation.

51. On 19 December 2007 (so I am informed by Nortje) no fewer than 17 members of the OCU searched Van Heerden's home in Mossel Bay for material relating to the Chaaban investigation. Supt Viljoen of the OCU, who was present during the search at Van Heerden's home, was in telephonic contact with the Erasmus Commission's secretary, Mr Twala, during the search. Van Heerden confirms that the police took instructions from Twala as to what material to seize during the raid on his house. This search was on a warrant issued in respect of supposed fraud committed by Van Heerden during the Chaaban investigation. The nature of the supposed fraud has never been explained.

52. According to Nortje, the bulk of the documents in the possession of the first Erasmus Commission came from the searches conducted by SAPS at the homes of Du Toit and Van Heerden. As recently as 15 April 2008, Supt Renier du Preez (also a member of the OCU) acknowledged in Nortje's presence that the OCU had "worked through many nights" to compile documents for the Erasmus Commission, and he confirmed that Twala had instructed the OCU to take documents from Van Heerden's home. He expressed unease at "getting involved in politics" but said he was "just doing as instructed".

53. It thus appears that one or more persons of considerable influence are able to procure the assistance of SAPS and the OCU (including top police officials) in an attempt to reveal wrongdoing in the City's investigation of Chaaban, and that this was so well before the establishment of the first Erasmus Commission.

54. The information described in the preceding paragraphs obviously came to the City's notice only after the current application had already been instituted. It is of considerable relevance. 

Ad para 40

55. I do not know what the Premier means by saying that it is ‘now known' that Du Toit was involved in the City's investigation into Chaaban. This was known to SAPS by not later than 26 June 2007 (when Du Toit submitted statements to Supt Siegelaar at the Speaker's request).

Ad para 41

56. If SAPS were in fact involved in a bona fide criminal investigation concerning Du Toit, it is not apparent to me (nor does the Premier explain) why any police official, let alone someone as highly placed as Commissioner Petros, should have disclosed evidence to the Premier. The Premier was not being interviewed as a witness in the investigation against Du Toit. I am advised and verily believe that the disclosure to third parties of private documents seized by SAPS from a suspect is unlawful and that SAPS must retain and use seized material only for purposes of the criminal investigation.

57. The only inference to be drawn is that the relationship between the WCPG and senior police officials in the Western Cape is such that the former is able to call on the latter's assistance for political purposes. This is in gross violation of s199(7)(b) of the Constitution.

58. The last sentence is denied and is contradicted by the Interim Report. The Interim Report found no evidence of unlawful monitoring or interception of telephone calls, nor does the report mention that any unlawful surveillance equipment was used by GFA. I am also advised that the Interim Report does not point to any other form of unlawful surveillance. The Premier himself has provided no substantiating evidence, admissible or otherwise, on these matters.

Ad para 42

59. The extract of the conversation to which the Premier refers is, I am informed by the Speaker, part of a far longer conversation, the full transcript of which was requested from the respondents. The audio recording (but not a transcript) was delivered to the City's attorneys shortly before I was to depose to this affidavit, and will be transcribed. I am advised that the transcript will show that the exchange that has been quoted has been taken out of context. The Speaker informs me that if the exchange highlighted by the Premier is heard in its context it will be apparent that the exchange was in jocular vein and not seriously related to the Speaker's actual instructions.

60. It will also be apparent, I am told by the Speaker and Nortje, that important parts of the conversation have been conveniently ignored. In that same conversation the Speaker provided specific instructions to Du Toit that this was to be a serious investigation that was not to degenerate into a party political matter. Indeed the Speaker stressed to Du Toit his independence from the DA in this matter.

61. When I myself listened to snippets of a badly recorded sound track of the tape at the Bellville police station as referred to hereunder, I found it impossible to make out most of the conversation as the recording quality was so poor.

Ad para 43

62. I am hardly going to make a statement to the public about something that the Speaker assures me was never an instruction given by him, whatever the Premier contrives to make of it.

63. Recordings of various conversations between Du Toit and other gentlemen were played to Stewart and me at the time of my being questioned by SAPS. It is incorrect that I was cordially invited to listen to the tapes as the Premier's affidavit implies. The invitation was extended only after I had enquired why De Lille had been invited to listen to the tapes while I had not been shown the same courtesy.

64. On my arrival at the police station in Bellville to listen to the tapes, I was informed that I would not be allowed to listen to the tapes if I did not first agree to submit to police questioning. It became apparent that an interrogation of me had been pre-planned as part of the exercise. It was clear to me that SAPS was abusing the situation created by the invitation eventually extended to me to listen to the tapes. But given that I have nothing to hide in this matter, I agreed to answer their questions so that I could listen to the tapes.

65. As it turned out I was not able to hear much at all on the tapes due to the poor quality of the recordings. It was clear to me however that the SAPS had spent a considerable amount of time listening to the recordings. They played me pre-selected extracts for comment and answers. This interrogation, of which I had had no prior warning, lasted over a period of about two hours. During this I was played certain extracts from the tape recordings confiscated from Du Toit and asked to comment. I was not given the opportunity to listen to the full recordings in question. Unfortunately the recordings were of such a bad quality that I could not make out much of what was being said on the tapes. Attorney Fiona Stewart, who accompanied me, had a similar problem. The exercise was completely meaningless as far as I was concerned.

66. Eventually, Captain Speed, of the SAPS, being one of the four SAPS personnel at the interview, had to either relay to me what we were supposedly listening to, or would ‘translate' what was being said on the tapes for me to comment on. I have very little recollection of what was played to us by SAPS, most of which was extracts from broken conversations of which I had no knowledge.

67. Annexure ‘ER7.1' to Mr Rasool's affidavit is an extract from the transcript of my interrogation at the Bellville police station. The transcript has not been made available to me. It is relevant to point out that during this interrogation Supt Viljoen professed to have no love for the DA and boasted of the damage he had supposedly done to the DA's reputation in the Desai Commission's investigation. I was shocked and deeply upset by this inappropriate behaviour.

Ad para 44

68. I refer to what is contained in the founding affidavit concerning the quotations and invoices. I dispute the validity and genuineness of the Premier's supposed concerns. I deny that GFA's investigation was at any stage beyond the legitimate ambit of an investigation under item 13 of the Code.

69. The Premier refers here and elsewhere to the reference in the first quotation to ICOSA, an organisation not represented in the City. The Speaker has pointed out to me that GFA did not undertake any investigations concerning Chaaban and ICOSA, but that if a councillor in Cape Town infringes the code of conduct by actions in any part of the country, he or she is liable to investigation by the Speaker for breach of the code. In any event, the reference to ICOSA was in a background section of the quotation which merely summarised information conveyed to GFA concerning Chaaban's conduct in general. The reports delivered by GFA ("ER1" and "ER10") reveal that for purposes of the City's mandate there was no mention of nor focus on ICOSA.

70. If the reference to ICOSA had been detected by the Premier as a point of concern prior to 24 October 2007, it is surprising that it was not mentioned in either of the MEC's letters of inquiry to the City ("DS6" and "DS9") nor in his public explanations for ordering a s106(1)(b) investigation ("DS12").

71. As to paragraph 44.4.3, I dispute that the City was not entitled to undertake a covert investigation. The principles of natural justice (item 14(7) of the Code) apply to an investigation by the council under item 14, which is an investigation in which charges are put to the councillor. GFA, by contrast, was engaged by the Speaker as part of an investigation under item 13(1)(a), which is in the nature of things a preliminary fact-finding exercise preceding an item 14 investigation. Again, therefore, the Premier (if he genuinely had the concern alleged) proceeded on a fundamental and rather elementary legal misapprehension.

72. As to paragraph 44.8, I refer to what I have said above concerning the appropriateness of ongoing investigation. What the Premier says about the nature and extent of Du Toit's contact with SAPS is incorrect.

73. If the respondents had wished to examine invoices submitted by GFA to the City, they could have requested these in the ordinary course of dealings between the Province and the City. The MEC was fully aware that an investigation had been undertaken by GFA at the City's instance.

74. Paragraph 44.10 is denied. This, too, was never raised as a concern by the MEC in his letters to the City.

Ad para 45

75. There was nothing unlawful about Mr Botha's tape recording of his conversation with Chaaban. Indeed the Premier would commend it if he were in way true to his claim in his affidavit that corruption wherever it occurs must be dealt with robustly. 

Ad paras 46-47

76. I repeat my submission that the SAPS briefing to the Provincial Cabinet was unlawful.

77. The minute ‘ER1.2' does not reflect the decision mentioned in paragraph 47.3, nor do paragraphs 47.1 and 47.2 accurately reflect the content of paragraph 3 of the minute.

Ad para 48

78. The Premier's statement to the press immediately after the executive council meeting is one of the many indications in his affidavit that he has an agenda to publicise his mischievous and unfounded allegations rather than a concern to establish the truth.

Ad para 51

79. What senior members of the DA may or may not have believed is entirely irrelevant. That such members apparently considered the matter differently from the Speaker should in fact have assured the Premier, if he were approaching the issues rationally, that the DA was not controlling the Speaker's investigation.

Ad para 52

80. The first sentence is false. The article "ER4" contains no statement that I was unaware of the Speaker's investigation. What I am reported to have said (which was true) was that I had been unaware at the time that the DA had previously obtained a similar quotation from GFA.

81. The second sentence is also denied. My statement in "ER4" that I hoped to appoint a retired judge or senior counsel to determine whether there had been any wrongdoing was not expressed as being mutually exclusive with co-operative investigation with the WCPG. The City's subsequent actions show that there was no such intention: the MEC's s106(1)(a) letters were fully answered. I should also emphasise that my decision to establish the Jordaan investigation was taken well before there was any talk of the establishment by the Premier of a provincial commission.

Ad para 54

82. The Premier's public assertions of illegality in surveillance, bugging and the use of private investigative agencies were untrue. Despite repeating the assertions in his affidavit, they have not been substantiated with any evidence and are refuted by the Interim Report.

83. The reference to ‘underworld agents' is also inappropriate and reflective of the Premier's pervasive desire mala fide to characterise the Speaker's investigation in opprobrious ways. GFA is a well-known private investigation agency established by a former commissioner of SAPS appointed to that post by President Mandela after the advent of democracy.

84. The reference to an "operative facing charges of serious criminal activities" is presumably a reference to Du Toit. I understand from Nortje that Du Toit was arrested on 20 September 2007 on charges of armed robbery and hijacking . This was about a week before his house was searched for documents relating to the Chaaban investigation and at which his laptop and cellular phone were removed by the SAPS, notwithstanding that these had nothing to do with the charges of robbery and hijacking. Du Toit has consistently maintained that the charges on which he was arrested were trumped up to discredit him, and he has not yet been charged, let alone convicted. According to Nortje, the State (supported by the OCU) has contended in Du Toit's criminal case that the prosecution cannot proceed until the Erasmus Commission has made its findings, which (so I am advised) is an untenable legal proposition.

85. Du Toit was not to the best of my knowledge facing any criminal charges when GFA was engaged by the City over the period June-August 2007.

86. The remaining supposed concerns have been addressed elsewhere.

Ad para 55

87. I have no knowledge of the Premier's discussions with De Lille. Annexure "ER6" does not reflect that De Lille had been granted access or listened to any tapes. The article reflects no more than that she had met with Commissioner Petros and could confirm that more than 300 tapes existed, and that she was waiting for Petros to inform the ID whether ID leaders had been bugged.

88. I refer to what I have said above as regards the assertion that I was to be given ‘access' to the tapes.

Ad para 57

89. The curious nature of some of the MEC's questions in the context of the report he had received from the City about the investigation into Chaaban has been remarked upon elsewhere in the City's papers.

Ad para 58

90. The MEC's letter to the NCOP (annexed to "DS9") was dated 29 October 2007 and was, I suspect, prepared and sent only after the City Manager had mentioned its absence in his letter to the MEC of 29 October 2007 ("DS7"). The inadequacy of the MEC's report has been pointed to elsewhere in the City's papers.

Ad paras 62-63

91. The Premier's information as to what had been given to SAPS is incorrect. I refer to what I said earlier, and also annex hereto marked "HZ2" a copy of the statement submitted to the Erasmus Commission by Supt Siegelaar. In it he confirms under oath inter alia that as early as 25 June 2007 he was informed by Van Heerden that the City wished to lay a charge with SAPS regarding this matter. Thereafter on 26 June Du Toit met with Siegelaar and fully informed him about the matter. Du Toit handed Siegelaar copies of the Trout transcript as well as statements under oath by various members of council regarding Chaaban. Du Toit asked Siegelaar to investigate the matter further, which he said he would do in conjunction with a prosecutor.

92. According to Du Toit, Siegelaar advised him that if the charge had a political context (which it obviously did) the case would be removed from Siegelaar's control and he would never hear of the matter again. Ironically this is exactly what happened in this matter and I refer to paragraph 9 of Siegelaar's statement in this regard in which he confirms under oath that the matter was referred to the "Provinsiale Kantoor" by him and he never dealt with the matter again.

93. The Speaker later contacted Sieglaar to enquire about progress in what he assumed would be the police investigation and on being informed that nothing was been done asked Sieglaar to visit him in his office.

94. The Speaker informs me that Supt. Siegelaar of the SAPS in fact attended on him personally at his office in the Civic Centre and confirmed receipt of the tape on which Chaaban is recorded trying to bribe a councillor and making threats against various individuals. Siegelaar advised that notwithstanding the evidence on tape ‘daar is geen vleis aan die been om ‘n ondersoek te regverdig nie'. The Speaker nevertheless insisted on receiving a reference number, and Siegelaar gave him the reference number 1/08/07.

95. When it became clear to the Speaker that notwithstanding his efforts Siegelaar intended to do nothing about the allegations, he personally attended the Cape Town police station on 11 July 2007 to lay charges against Chaaban (case 24477/10/2007). Siegelaar confirms this at paragraph 10 of his statement. That this case was likewise "removed" from Sieglaar's control is confirmed by him in paragraph 10 of his statement to the Commission.

96. In frustration at the absolute lack of action by the SAPS in this matter, the Speaker wrote to the National Minister of Safety and Security on 17 March 2008, enquiring as to what was happening in the investigation of his report and asking that the Minister report back to him in this regard. A copy of that telefax is annexed hereto marked "HZ3". In reply the Speaker was advised that the matter had been referred to the National Inspectorate: Western Cape for a response. Nothing further has been received in this regard by the City.

97. I point out that the recording between Trout and Chaaban was not even "potentially" unlawful (since - as the Premier himself says - Trout made the recording).

98. The close relationship between the Premier and Petros and the enthusiastic assistance which the former got from the latter stands in stark contrast to SAPS's attitude to the City and to investigations into Chaaban's conduct.

Ad para 64

99. It goes without saying that the Premier has grotesquely mischaracterised what he calls ‘the tone of my comment'. The mischaracterisation is typical of the entire exercise embarked upon by the Premier, of which the establishment of the Erasmus commissions is a central part.

Ad para 65

100. Chaaban's suspect reputation before he became a councillor stands on a very different footing to his subsequent suspected misconduct as a councillor. It was the latter which the Speaker was duty bound to investigate.

101. In any event, what the Premier says in this paragraph is a complete distortion of the truth:

101.1 When the AMP became part of the DA-led coalition Chaaban was not a councillor. I knew nothing of NIA reports concerning Chaaban, and had not even heard of him.

101.2 In the latter part of 2006 an AMP councillor Nazley Bester resigned, and the AMP had the right to nominate his successor. The AMP nominated Chaaban.

101.3 Although I personally knew nothing of Chaaban, I received very critical reports from various quarters, including the chief whip in the council, Anthea Serritslev. They were appalled at the notion that Chaaban would be a councillor in the coalition.

101.4 I thus approached Mr Gulam Sabdia and Dr Wasfie Hassiem of the AMP and urged them to find an alternative to Chaaban. They said this was impossible as he was the AMP's financial backer.

101.5 The AMP thus exercised its right to appoint Chaaban, very much against my wishes.

101.6 I nevertheless asked the City's finance department to investigate reports that Chaaban owed the City money (which he contested). The investigation took longer than I expected. In the meanwhile, Chaaban's conduct in the coalition confirmed the warnings I had received when the AMP had nominated him as Bester's replacement.

101.7 Be that as it may, by February 2007 the AMP had been expelled from the coalition because of evidence that Chaaban was secretly dealing with the ANC to overthrow the coalition.

101.8 In short, I never sought Chaaban as a coalition partner. He was foisted on the coalition, and mercifully his period as a councillor in the coalition was short-lived.

Ad para 68

102. I too had no knowledge at the time of the other investigations by GFA to which the Premier refers. They had nothing to do with the City.

103. While I was most concerned to read reports alleging that Theuns Botha had used GFA to spy on his fellow DA member Lennit Max, I received assurances from Botha that GFA has never been involved in any investigation of Lennit Max. Ms Stewart, the City's attorney, has received a similar assurance from Van Heerden of GFA. Whatever might be the truth in this regard, there is no basis to suggest that the City or the DA were involved in any such arrangement.

104. What I do wish to point out is that GFA has now confirmed that they have for many years been utilised extensively for investigations by ANC-controlled municipalities and other organs of state.

Ad para 70

105. This paragraph is untrue. The City continued to respond fully to the MEC's queries.

Ad para 72

106. The last sentence of this paragraph is refuted by the objective facts. The description of the MEC's approach as ‘co-operative' is in any event demonstrably inaccurate. I do not thereby intend to suggest that the MEC was not entitled to address whatever queries he saw fit in the circumstances. It is however evident in the context of developments that the queries and the answers provided thereto were not addressed by the MEC in the spirit of co-operative governance or supportive monitoring, as the Premier seeks to imply.

Ad para 74

107. The last sentence of this paragraph is manifestly incorrect. It does however say much about the WCPG's hostile and untrusting interpretation of communications even from non-political representatives of the City government.

Ad para 75.3.1 (and 75.4.2)

108. The Premier's statements in these two sub-paragraphs provide an excellent illustration both of the respondents' desperate endeavour to dredge up supposedly suspicious circumstances and their failure to establish the true position by the simple expedient of asking (which is what I did by asking the Speaker, who by his affidavit will confirm what is set out hereunder):

108.1 In both sub-paragraphs, the Premier implies that the "applicable cost centre" had insufficient funds to meet the expenditure for which the City Manager sought a deviation approval.

108.2 The applicable cost centre (1108001) was a cost centre established by the City Manager in respect of the Speaker's proposed use of an external agency to assist in the Chaaban investigation.

108.3 The City Manager, who has a budget running to many millions of rands, provisionally allocated a sum of R100 000 to this cost centre.

108.4 Since the first quotation for which deviation approval was sought was for R57 500, the balance available from the provisional allocation of R100 000 was R42 500.

108.5 As to paragraph 75.4.2, the relevant document (attachment "F" to annexure "DS10") contains a signed handwritten annotation which indicates that an additional R100 000 was allocated by the City Manager from his budget to cost centre 1108001, that R57 500 had already been spent, and that R142 500 thus remained, which was more than sufficient to cover the requested deviation approval of R89 150.

Ad paras 75.3.5 and 75.5.4

109. I have already shown that what the Premier says in this regard concerning GFA's first quotation is incorrect. Paragraph 75.5.4 is denied.

Ad para 76.5

110. It is denied that the Speaker sought an investigation going beyond breaches by Chaaban of the Code. If the City Manager was under a duty to more closely interrogate the Speaker's requisition (which is denied), that was a matter to be addressed by the auditor general. It does not support the establishment of a commission of inquiry, whether in terms of s 106 of the Systems Act, or at all.

Ad para 79

111. I submit that the safest guide as to the MEC's reasons (if they were genuine at all) are those he offered publicly to explain his actions. That is the basis on which the founding papers were prepared, and I submit that it is the correct approach. The respondents have established no foundation for the proposition advanced in the last sentence of this paragraph, simply because there is no foundation for it.

Ad para 80

112. I deny that the Jordaan investigation was a "recipe for a whitewash" and not an appropriate way for the City to investigate the matter. If coercive examination was required because of suspected criminal wrongdoing, the police and NPA should have been left to investigate. The Premier notably refrains from suggesting precisely how the Speaker's investigations into the corruption and intimidation allegations against Chaaban should have been circumscribed. In the context of his allegation of a ‘sprawling invasive...investigation' I would have expected him to be forthcoming in this respect. His reticence does not however surprise me: it demonstrates the extent to which his complaint is contrived.

Ad para 83

113. I do not understand the implication of the deponent's statement that the acting City Manager did not question the decision of the MEC to institute an investigation in term s of s 106(1)(b). If it is to suggest a waiver by the City of its rights, it is without foundation. The MEC's intervention was obviously a matter for the political arm of the City's government to respond to. As is apparent from the papers, the City sought legal advice on the validity of the MEC's intervention. The import of that advice was conveyed to the Premier in accordance with the principles of co-operative governance and plainly induced him to disestablish the first Erasmus Commission.

Ad para 87

114. The disposition of the Sector Co-Ordinating Committee of the executive council described in this paragraph is a further example of the WCPG's inability to live up to its constitutional obligations of fostering trust and good faith in its mutual relationship with the City of Cape Town. The establishment of the Erasmus Commissions is a manifestation of this constitutional non-compliance.

Ad para 88

115. I deny that the Premier took a decision which was independent of the MEC's s106(1)(b) decision, and deny in any event the appropriateness or legality of his decision.

Ad para 89

116. I deny that the first Erasmus Commission was established to investigate matters going wider than the municipal affairs of the City. Everything to be investigated was regarded as encompassed within s106(1) of the Systems Act.

Ad para 90

117. I deny that the Premier had the belief alleged in the first sentence. I also deny the integrity of his description of the opportunity that the Commission would afford. Notably, the Premier and the MEC are not offered for cross-examination in the forum. The probity of their response to the information elicited concerning the Speaker's investigation is an integral part of the insight they maintain is desirable in the public interest.

Ad para 92

118. The process that the Premier has sought to use is directed at a politically managed media show in which lurid allegations will be given wide publicity in the media, without there being any binding judgment on their substance. The process, including its ‘use immunity' feature, will undermine the ability for the proper investigative organs of state, namely the police and the NPA, to properly discharge their functions in respect of the complaints and reports that have been lodged. The founding papers set out why the appointment of a serving judge to discharge a non-judicial function in chairing the Commission is incompatible with the Constitution and invalid.

Ad para 94

119. It is apparent that the Premier determined that Judge Nathan Erasmus should chair the commission. The allocation of judges to matters falling to be dealt with by judges in their judicial capacity is the prerogative of the judge president. The appointment of Judge Erasmus as the choice of the executive arm of government only emphasises the divide between Judge Erasmus's position as a judge and the non-judicial function he has been appointed to discharge as chairperson of the commissions established by the Premier. I would have expected that if the Premier sought bona fide to obtain the benefit of judicial independence, he would have requested the Judge President to release a judge for the purpose, leaving the choice to the person ordinarily charged with judicial allocation. This, I am advised, is the practice followed in certain other jurisdictions where judicial commissions are still used. It is significant, in my opinion, that in making his selection the Premier chose an individual who prior to his appointment to the Bench was an active member of the ANC, rather than one of the many judges on the High Court who do not have a party-political history.

Ad paras 97-98

120. The inclusion of this irrelevant material in the Premier's affidavit lends force to what the City has said concerning his motives. To respond to this entirely irrelevant matter would be to give it the respect that it does not deserve. Suffice to say that the allegations are either untrue or one-sided and unrepresentative in each case of the full facts.

Ad paras 102-106

121. My letter (‘ER12') should not have been annexed by the Premier as it is privileged (see paragraph 99 of the Speaker's founding affidavit).

Ad paras 113-114

122. I repeat that the Premier could not have believed it was proper for him to receive an interim report from a commission whose legality was in issue and in regard to which he was meant to be engaging in a bona fide dispute-resolution process, particularly since his avowed purpose was to use the report in an attempt to justify further action.

122.1 I do not intend to comment on the Interim Report except to say the following: Except to record tersely that the Commission had requested and received documents from the POCU (para 5.1), the author fails to disclose the extensive way in which the police apparently were used to seize and collate documents for the Commission.

122.2 The Interim Report is lengthy. Its preparation must have involved the author in virtually fulltime work from 11 February 2008 (when the Premier announced that he was suspending the sittings of the first Erasmus Commission) until 4 March 2008 (when the report was furnished).

122.3 The Premier opines later in his affidavit (paragraph 233) that the Interim Report was a document prepared by Petersen "primarily for his own use to keep track of the burgeoning documentary evidence". I submit that this view can be given no credence. In Judge Erasmus's covering letter (p 743) he says that he (in consultation with his co-commissioners) requested Petersen to prepare the report, i.e. it was not something Petersen was doing in the ordinary course of his own accord.

122.4 Moreover, it is clear that Judge Erasmus's request to Petersen must have been made after the Premier "suggested" to the Commission that such a report be furnished (see "DS24" and paragraph 112 of the Premier's affidavit).

122.5 It is thus perfectly obvious that the Interim Report, the compilation of which must have taken Petersen virtually the whole of the period between 12 February and 4 March 2008, was solicited by the Premier and prepared at his request by Petersen on the instructions of the commissioners.

122.6 The Premier obviously wanted the report in order to use potentially unlawfully collected evidence to justify his next move.

122.7 Moreover, by annexing the report to his affidavit he has ensured that even if both Erasmus Commissions are set aside the untested information is in the public domain. A prominent article published in the Sunday Times of 4 May 2008, a copy of which is annexed hereto marked HZ5 exemplifies this point. This is a further indication of his true motives.

122.8 It was, of course, unnecessary for the Premier to annex the report to his affidavit. He could have furnished it to the City when requested by its attorneys to do so in the latter's letter of 2 April 2008 (this after the Erasmus Commission itself had refused to do so). The Premier says (in paragraph 150) that he instructed his officials to respond to the City's request "within the applicable legislative time-frames". If by this he means within the 30 days prescribed by s25 (1) of the Promotion of Access to Information Act 2 of 2000, it speaks volumes for the Premier's attitude. There was no reason for him not simply to send the report to the City as soon as it was requested. The urgent provision of the report became even more pressing when it was announced that the second Erasmus Commission was scheduled to resume its hearings on 14 April 2008 and the City needed the report to prepare therefor. It was nevertheless withheld until its annexure to the Premier's answering affidavit in this application.

122.9 Moreover, the urgent application brought by the City on 8 April 2008 was no reason to hold back a response to the City's request (see paragraph 151 of the Premier's affidavit), more particularly in the context of the Premier's expressed wish that the sittings of the Commission proceed notwithstanding the pending application impugning its legality.

Ad para 116

123. Paragraph 4 of ‘ER15' reflects that the Premier continued to be assisted by SAPS in his endeavours to keep the Erasmus Commission alive.

124. Paragraphs 6 to 10 of ‘ER15' suggest that the first opinion furnished by the Premier's external counsel on 28 February 2008 may have been negative and that it was the further information contained in the Interim Report which was felt to perhaps justify the establishment of the second Erasmus Commission. The first of the quoted extracts from the Chief Director's memorandum is far from a recommendation in favour of the continuation of the exercise.

Ad para 119

125. I deny that what the Premier did on 19 March 2008 was done in a spirit of co-operative governance. I also deny that on proper analysis the Interim Report ‘indicated that the original allegations against the City were well justified'. The Premier's statement in this regard is however significantly demonstrative of my contention about his a priori position in the matter.

Ad para 120

126. The allegation that I was involved in regular Monday-morning meetings with GFA operatives is absolutely false, and is not supported by the Interim Report. I first met Van Heerden and Du Toit in August 2007, when Theuns Botha unexpectedly brought them with him when he came to my office to discuss the meeting he had had with Chaaban. I later met Van Heerden at Nortje's home in October 2007 on an unrelated matter (concerning PAGAD).

127. The Premier alleges that my telephone records indicate personal contacts with GFA. The Interim Report makes reference to my cellphone records (improperly, for reasons to be explained below), but only in connection with communication between myself and two members of the DA (Messrs Selfe and Arendse) - see par 9.7.5. It is clear that the Commission also had access to the cellphone records of Du Toit and Van Heerden. It can be accepted that the Interim Report would have listed any telephonic contact between me and Du Toit and Van Heerden. It is thus notable that there is no reference in the Interim Report to any telephonic contact between Du Toit and myself, and there is a single reference to a 24-second connection between Van Heerden and me on 13 June 2007 (see para 10.6.2).

128. As appears from "DS33" to the Speaker's founding affidavit, the legality of the Erasmus Commission's obtaining of my cellphone records was an unresolved legal dispute at the time of the disestablishment of the first Erasmus Commission, and it was thus improper for the evidence-leader to have included reference to them in his Interim Report.

129. Notwithstanding the above, I confirm that my cellphone records reveal the following:

129.1 On 13 June Neil van Heerden made a 24-second telephone call to my cell phone. I missed the call and although I tried to call him back I was unsuccessful.

129.2 During the entire Chaaban investigation no calls were made by me to Du Toit (or vice versa). The first time I called him was on 4 October 2007, after he had been arrested. I first enquired from the Speaker as to why he had been arrested and when he could not help me I made a call to Du Toit after the Speaker had provided me with his cell number. That call (unsuccessful) was 3 seconds long and while I tried again to speak to him on that same day, which calls lasted 4 seconds, I was again unsuccessful.

129.3 My said calls to Du Toit were preceded by an unsuccessful call to Van Heerden to try to ascertain why Du Toit had been arrested.

129.4 On 4 October 2007 I received a call back from Van Heerden at 21h25 which lasted 2 minutes and 12 seconds in which he informed me that Du Toit had been arrested in connection with an alleged hijacking and was being asked ( by SAPS) to make an affidavit implicating me in unlawful activity as a condition of bail. Van Heerden called me again later that same night, and left a 26-second message, the contents of which I cannot recall.

130. The above is a complete record of my entire telephonic contact with both Van Heerden and Du Toit.

131. By any stretch of the imagination, these facts do not rationally amount to a reasonable suspicion that I was personally involved in any of the investigations by GFA, or party to their appointment by the Speaker and the Premier's assertion that my denials of personal involvement in the matter were false is untrue and unsubstantiated. If he genuinely established the second Erasmus Commission with this belief in the forefront of his mind, he acted under a completely false and unsubstantiated misapprehension. His apparent readiness to believe and make such assertions indicates his attitude to the City in general and to me in particular.

Ad para 121

132. The information that I received regarding the ANC's plans to cause trouble at the Mitchell's Plain march, at which I was subsequently arrested and the charges later withdrawn, was provided to me by a colleague who informed me that a high ranking member of SAPS had confirmed it to him.

Ad para 122

133. The fact that Botha happened to be in his office at the provincial legislature when he monitored his conversation with Chaaban (see para 14.1 of the Interim Report) does not make the matter a provincial rather than a municipal issue. Chaaban was a municipal councillor, not a parliamentarian, and Botha monitored the conversation as part of the investigation into Chaaban's conduct as a councillor.

134. The Premier's endeavour to make out that the second Erasmus Commission was not confined to municipal matters is contrived.

Ad para 124

135. This again shows that the Premier has used the Interim Report he solicited in an attempt to justify his further actions.

136. The Premier's statement that I or the DA as a party may have been complicit in corruption is denied, and all my rights in respect of the Premier's defamatory assertions are reserved. The facts regarding Arendse show my strong opposition to corruption, rather than the contrary:

136.1 Arendse, who was originally a DA member, had joined the ID and was elected in his ward in the 2006 municipal elections.

136.2 However, in the council election for mayor which followed shortly thereafter I received one more vote than expected. Shortly thereafter, Arendse told me that he had voted for me (against the ID's mandate) in protest against the ID's decision to support the ANC.

136.3 Arendse also let it be known that he wanted to return to the DA, which he did, leading to the need for a by-election in his ward. He was nominated as the DA ward candidate, and was convincingly elected.

136.4 Up to then I was not aware of any arrangement by which he would get a sub-council chair nor of any financial arrangement with him. However, after his successful election as a DA councillor Arendse approached me with an agreement apparently signed by Kent Morkel, the DA's then provincial chairperson, in which Arendse was promised a sub-council chair. I rejected this out of hand. I made it clear within the DA that I regarded the behaviour of Arendse and Morkel as entirely unacceptable and that I would never honour such arrangements.

136.5 The attempted corruption had been thwarted and it appeared to me that nothing more needed to be done. However, when in February 2008 the disaffected Arendse and Morkel began to speak publicly about their wrongdoing, I concluded that if they really wanted a public ventilation of their behaviour it would be best for this to be dealt with by the courts rather than a commission of inquiry and so I laid a charge with the police.

Ad para 126

137. I cannot credit that the content of this paragraph was uttered seriously. The illegality of Chaaban's conduct had already been established in the Speaker's investigation. A resolution had been adopted by the municipal council consequent upon its consideration of the investigation into Chaaban that he should be removed from the council and a relevant request to that effect was addressed to the MEC. My concern was and remains the respondents' failure to act in terms of that request.

Ad paras 129-147

138. I dispute that the Jordaan report was deficient. It was an appropriate way for the City to deal with the public controversy and to get to the truth. If coercive powers of examination were needed for further investigation (which I deny), these would either have had to be justified under s106 of the Systems Act or be dealt with by the police and NPA. The copy of the Jordaan report annexed to the Premier's answering affidavit is incomplete. As appears from the report, the annexures to the report are intended to be read as an integral part of the report. The Premier's failure to remark on his omission of the annexures leads me to believe that he may well not have considered the full report.

Ad paras 151-153

139. There was no attempt, deliberate or otherwise, to catch the Premier off guard. The previous draft affidavit required some revision and substantial supplementing and was served as soon as humanly possible. The City was given no prior notice of the decision of the Premier to disestablish the first commission and replace it with a second commission. The decision was announced immediately before a holiday long weekend and the availability of counsel who had previously advised the City in the matter was limited. The circumstances were explained in the supplementary affidavit of Ms Stewart. The founding papers were served only seven days after the announcement by the second Erasmus Commission of the dates on which it would commence its public sittings.

140. I submit that the procedure adopted by the City was, given the circumstances, appropriate. It was expected that common sense would prevail (as eventually it did) and that there would be a single hearing for final relief on an expedited basis, with the Commission's activities being suspended in the meanwhile. Two separate hearings (for interim and final relief) would have been costly and inconvenient not only for the litigants but for the court.

Ad para 160

141. I deny that the Commission's refusal of the postponement was "self-evidently correct", but the issue is now academic. It should have been apparent to Judge Erasmus from the founding papers in this application that I considered that it was inappropriate for him to be chairing the commission. His reference to ‘recusal' was so I am advised in any event inappropriate; it is his resignation from the commission that was in my view indicated. I reiterate my position that it is most undesirable for any judge to accept an appointment to undertake a non-judicial function of the nature that chairing a commission such as that established in this matter entails. Press reporting on my comments demonstrates the general inability of many members of the public to distinguish Judge Erasmus's position as a judge and his non-judicial function as chairperson of a Premier's commission of inquiry.

142. I am advised that the chairperson of the commission raised the issue of the comments I had made during a radio interview that morning at the commencement of the sitting of the commission on 14 April 2008. I am informed that the City's legal representatives were not even aware of the comments that I had made and were completely taken off guard by the chairperson's questions to them. I wish to make it clear that my position with regard to the appropriateness of Judge Erasmus continuing to chair this commission if it is to proceed is reserved.

Ad para 164

143. If insistence on a proper respect for the principles of legality is understood by the Premier as ‘bloody minded resistance', so be it.

Ad para 165

144. This is a matter for legal argument. Past "precedents" are not, I am advised, a safe guide, since the circumstances would have differed and since the legality of those commissions was in any event never judicially considered.

Ad para 167

145. Judge Erasmus is not immune from personal criticism when he accepts an invitation personally to assume a non-judicial position in connection with a matter with highly charged political connotations and such criticism does not amount to disrespect for the judiciary. On the contrary my concern is that the acceptance by judges of such appointments undermines the constitutional role of the judiciary. The Premier's professed shock is indicative of his persistent endeavour to cloak his political initiative with a cloak of judicial respectability. The Premier's concluding sentence highlights the problem when a judge is appointed to chair a commission: my legitimate criticisms are opportunistically labelled by the Premier (and may indeed be so viewed by the public) as an attack on the judiciary, whereas in truth Judge Erasmus as chairperson of the Erasmus Commission is not performing a judicial function. His actions in that capacity are entitled to no greater deference than those of any other chairperson of a commission of inquiry.

Ad para 169

146. Although the Speaker stated in his founding affidavit that he was duly authorised to make the affidavit, I am advised that this was legally unnecessary. The City's attorneys (Fairbridges) issued the application, and did so on my instructions, as appears from "ER18". The power of attorney, dated 24 April 2008, confirms that I had authorised Fairbridges. If it were necessary (which it is not), the power of attorney constituted ratification of Fairbridges' action.

147. I also annex as "HZ4" a copy of my letter to Fairbridges dated 27 March 2008 in which I authorised the institution of the review proceedings. I added by hand an authority in the Speaker's favour to sign any affidavit required, though as noted such authority was not in law necessary.

148. I deny that the principles of co-operative governance (by which I assume the Premier means the requirements of the Framework Act) precluded the institution of the application in the circumstances of the present case. That is dealt with in my founding affidavit.

149. I deny that I was obliged to consult with the mayoral committee before instructing Fairbridges.

150. I am advised that the Deputy Mayor approached the Speaker to apologise for the effects of the misapprehension that gave rise to reports in the media referred to in annexure "ER19" .

Ad para 174

151. As regards paragraph 174.5, Fairbridges' letter of 23 April 2008 ("ER21"), apart from explaining the slight delay in responding to the MEC's request, correctly pointed out that the City's request to the MEC to remove Chaaban had been made on 5 November 2007 and that the MEC had waited until 26 March 2008 to request documents. The delay remains unexplained. The MEC and Premier have acted with far greater alacrity and forcefulness in addressing supposed wrongdoing in the City's investigation of Chaaban than in dealing with the problem of Chaaban himself.

Ad para 176.3

152. The Deputy Mayor has, since the newspaper report in question, confirmed to the City's internal legal advisor, Koos Celliers, that he misunderstood the legal position regarding the signing of the affidavit and he and his party are now satisfied that this matter has been correctly handled.

Ad para 177

153. I deny that the Speaker "follows instructions" or that he acted inconsistently with my statutory and traditional responsibilities. Indeed the Speaker was more than a little surprised to read the imputations against him by the Premier in view of the approach to him by the ANC caucus of the municipal council in August 2007 prior to the cross over period to indicate that if they took over power in the City they would wish him to remain as Speaker. The ANC has congratulated the Speaker on the impartiality with which he discharges his duties.

Ad para 181

154. I deny that the cost estimates in the founding papers are vastly exaggerated. The costs of the current and related court proceedings are an unfortunate necessity if the respondents' abuses of power are to be checked.

155. There is no realistic prospect that an impartial investigation would show what the Premier suggests in the first sentence of paragraph 181.4.

Ad para 187.4

156. I explained in paragraph 203 of my founding affidavit why compliance with the requirements of the Framework Act could not reasonably have been expected. The Premier does not state in his affidavit that he would have co-operated with the City in suspending the activities of the second Erasmus Commission pending compliance with the Framework Act. His opposition to the City's requested postponement of the hearings of the second Erasmus Commission, and the Commission's own refusal of the City's requested postponement, merely confirm that the City had no choice but to launch proceedings forthwith.

Ad para 188

157. I am advised that the SCA's judgment in Umlambo predated by two months the Premier's decision to establish the first Erasmus Commission.

158. I deny that the Premier separately applied his mind or exercised a power independently of s106(2) of the Systems Act. Apart from the formulation of his decision (as reflected in the proclamation published on 4 December 2007), it is difficult to see how time would have allowed any independent process of consideration by the Premier. The MEC's Head of Department submitted his report to the MEC on 27 November 2007 ("ER11"). On the same day the MEC reported to the Sector Co-ordinating Committee (paragraphs 86-88 of the Premier's affidavit), and on the same day the MEC communicated his s106(1)(b) decision to the City and made a public announcement in respect thereof, stating that his s106 investigation would take the form of a commission appointed by the Premier. Nothing of substance occurred thereafter except the formal proclamation. It is quite obvious that the MEC and Premier together took a joint decision on 27 November 2006 to give effect to s106(1)(b) by appointing the first Erasmus Commission. 

Ad para 189

159. I am advised by the City's legal representatives before the Commission that the affidavit of Enwar Isaacs is not yet before the Commission as is averred in paragraph 189.4. The affidavit is in the possession of the evidence-leader Petersen.

160. In the late afternoon of 14 April 2008 it became apparent to the City's legal representatives that Petersen intended leading the evidence of Isaacs the following day without the evidence having been formally placed before the Commission in accordance with the established procedural arrangements and without any of the parties having had insight into his affidavit. Only at the insistence of the City's legal representatives was the affidavit of Isaacs, complete with the annexures thereto, was made available afterhours that day.

161. I am advised that on the morning of 15 April when the Commission re-convened, the City and the Speaker's representative, Adv Webster SC, objected to the leading of Isaacs on the grounds that the documentation had been received late the previous day and none of the parties had had the opportunity to take instructions from their clients on the matters that Isaacs was apparently being called to testify on. Petersen conceded the point, and stated that he did would not be calling Isaacs on that day.

162. However, Petersen nevertheless attempted to have Isaacs' affidavit formally admitted as evidence before the Commission. Adv Webster SC objected, and the issue stood down for later determination. That remained the position when, later in the day, the activities of the Commission were suspended by agreement.

163. The attempted introduction of the Isaacs affidavit in the circumstances described is indicative of the manner in which the Commission is being conducted. I have no doubt that the evidence-leader appreciated at that stage that it was likely that the Commission would be suspended pending the determination of this application and was attempting to introduce unfounded yet salacious evidence that would not be tested in cross-examination before the curtain was brought down temporarily or permanently on the Commission.

164. I have been advised that Isaacs distributed copies of an affidavit deposed to by him to the media and other persons attending the sitting of the Commission. Indeed I am advised that the Chairperson himself commented that he was aware that a version of Isaacs' affidavit that differed from the one in the possession of the evidence-leader had been distributed by Isaacs. Given that this has now been confirmed by the Premier in his affidavit I intend to proceed to sue Isaacs for defamation in due course. Isaacs was dismissed by the City for attempting to bribe and corrupt councillors.

165. The innuendo that the Premier seeks to introduce by his reference to Isaacs is a further illustration of his animus and motives in this matter. It is not defused by his attempt at propriety in paragraph 189.5.

Ad para 190

166. The imputations made by the Premier against the City Manager are serious and most regrettable. The City Manager is the most senior non-political office bearer of the City administration and has an impeccable record of service in local government in the City reaching over 20 years.

167. The City Manager's discharge of his functions as the City's accounting officer is subject to oversight and audit by the auditor- general. If the respondents had any legitimate concerns about the financial management of the City they could call upon the auditor general to enquire into their areas of concern. As it happens the auditor-general has recently reported favourably on the functioning of the City. Indeed, the City received an unqualified audit report. Unfavourable reports were furnished in respect of 19 municipalities in the Western Cape . There is no indication that these are to be subject of commissions of inquiry by the WCPG. The respondents have shown no interest in trying to get to the bottom of demonstrated serious maladministration under the previous ANC-led administration of the City, whether for the purpose of policy-making, furnishing advice or any other purpose.

Ad para 191

168. As I have emphasised elsewhere investigations to establish contraventions of the Corruption Act (i.e. relevant ‘fact-finding') are especially provided by the Act to be the province of the investigating units of the NPA and take place under direction of specialised legally qualified professionals. That a commission chaired by a judge should be appointed in a surrogate capacity to that function is fundamentally inappropriate. I have repeatedly stated that the City and its various office bearers have nothing to fear from an investigation by the appropriate authorities. The respondents' dogged (and expensive) avoidance of the use of such specially established organs of state is inexplicable except on the basis of improper motives.

169. The Premier's assertion that the terms of reference do not mandate the second Erasmus Commission to conduct a criminal investigation is contradicted by those very terms of reference.

Ad para 194 -5

170. The establishment of the second Erasmus Commission was the respondents' response to the City's dispute-resolution initiative under the Framework Act. One is unable to conceive of a more non-conciliatory response. The Premier's establishment of the first Commission had been unambiguously declared a matter of intergovernmental dispute. The establishment of the second Commission did not avoid that dispute. Resolution under the Framework Act is not possible while the Commission runs on regardless of the City's protest. The Premier's endeavour in the circumstances to avoid these proceedings by reliance on the Framework Act is disingenuous.

Ad para 199

171. The letter that the City Manager received from NIA was never brought to my attention by the City Manager, prior to the arrest of Du Toit, when the so called "Spygate" scandal broke in the press and I felt compelled to become more involved in getting to the bottom of the allegations against the City and appointed Adv Jordaan in this regard. It was in his report that I first became aware of the said letter.

172. The alliance that Chaaban would have needed to form to take power away from the multi-party coalition would of course have had to include the ANC. There have been no indications that the ANC would have avoided partnership with Chaaban on account of the NIA report, of which it must have been aware, having been in power in the City in 2004. The Premier's attempt at self-righteousness is starkly unconvincing.

Ad para 200.3

173. I refer to the affidavit provided to the First Erasmus Commission by the Speaker, a copy of which is annexed hereto marked "HZ6", iIn which he clarifies these apparent discrepancies by specifically pointing out that his recollection of dates has not always been accurate, but the content of what conversations that took place on those dates is. His reference to ‘early May' should have been ‘late May'. I fail to see any significance in the inaccuracy, and the Premier's affidavit provides no enlightenment in that regard.

Ad para 201 - 202

174. The explanation for the billing and payment in respect of attendances by GFA before 1 June 2007 has been dealt with at length elsewhere, as has the wording of the GFA quotations.

Ad para 203

175. In view of the conclusions stated by the Premier in this paragraph, all of which are false, it is not apparent what facts he needs to be found. He has formed a clear-cut opinion, which if he had any confidence in it, he would have referred to the police or to the NPA. The Premier conveniently overlooks that in documentation created before any interest was shown by the respondents into the Speaker's investigation of Chaaban, Du Toit reported to the Speaker that he had advised Selfe on 4 June 2007 that he was not at liberty to disclose the state of the investigation to Selfe as the DA was not his principal.

Ad para 204

176. Selfe has gone on affidavit to the first Erasmus Commission (annexure ER 24 to the Premier's affidavit) confirming that he did mention to the Speaker on 28 May that the DA had been intending to undertake its own investigation into Chaaban and intended using GFA. I deny that there was anything inappropriate about the Speaker electing in the circumstances to investigate using the services of GFA. In doing so he made it quite clear to GFA that it was to report to him in the matter and not to any political party. If the Premier regards the Speaker's conduct as ‘highly inappropriate' it is not apparent what he believes that a commission of inquiry is to do about it.

Ad para 205

177. The deponent has difficulty with the failure of various persons to go to SAPS. The Speaker did relay a report to the SAPS and Selfe explains why it was decided not to immediately approach SAPS. The inactivity of the SAPS in respect of matters that have been referred to it justifies the approach described by Selfe at paragraph 6 of his affidavit (annexure ‘ER24' to the Premier's affidavit). The Premier's state of perplexity about people's failure to report to the SAPS is difficult to reconcile with the respondents' own reticence about leaving an investigation of their alleged concerns to the police.

Ad para 206

178. The Premier does not explain why he considers that the Speaker should have mentioned in his letter to the MEC that GFA had been involved in the investigation into Chaaban. I do not understand the significance of the omission, save to serve as an illustration of the respondents' paranoia.

179. I have dealt elsewhere with the issue of the Speaker's instructions to Du Toit and the passage in the transcript of their conversation about which the Premier is so fixated. The alleged importance of the matter is beyond my understanding in the context of there being no evidence in the Interim Report presented to the Premier that any unlawful conduct occurred by the GFA investigators.

Ad para 207

180. The Premier could easily have assuaged his paranoid concerns about ‘coincidences' by obtaining a copy of the council agenda for its meeting on 31 October 2007 (not 30 October) and confirming that the meeting was arranged on the municipal calendar long before any request from the MEC could have been known about. The Premier shows a disturbing lack of appreciation that the Disciplinary Committee's report of 10 October 2007 required to serve before the Council. It did so under a report dated 19 October 2007 (annexure DS4 to the founding affidavit) which bears a council meeting agenda item number (C 84/10/07). The report was cleared for submission to the council meeting by the Legal Compliance Officer and the Acting Director: Executive Support on 25 October 2007 (I refer to page 166 of the papers). The resolution adopted is at page 170 of the papers.

181. If he really is ignorant about it, which I doubt, the Premier shows a remarkable lack of curiosity in the circumstances about the reasons why the ANC voted en bloc against the resolution. He offers no basis for his description of that party's stance as a ‘cautious approach'. Frankly, his own party's vote was contrary to any belief in the importance of democracy and good governance, and therefore nothing short of an embarrassment. It was explicable only on the basis of that party's intention to go into alliance with Chaaban to unseat the multi-party governing coalition. 

Ad para 210.2

182. The Premier has not identified a single instance of unlawful conduct by GFA in the investigation.

Ad para 211.3

183. I have no knowledge of the circumstances in which ‘ER 25' was produced, nor any idea of the reliability of the test that was apparently administered. I am more than a little confused by the Premier's use of this document, as he refers at length in his affidavit to his having listened to a tape recording of the conversation in which the Speaker is said to have given Du Toit instructions (i.e. tape recordings which objectively prove the truth of what Du Toit was supposedly lying about, namely that the Speaker did give instructions to Du Toit). I am even more at a loss to understand the Premier's contention that ‘ER25' justifies the establishment of a commission of inquiry.

Ad para 211.5

184. I understand that Nortje will confirm that "ER26" is a document seized by SAPS from Van Heerden's home in electronic form and that it is a privileged document of a draft nature. I understand that according to Nortje the background to the preparation of the document is the following:

184.1 Nortje, who was at that time unfamiliar with any of the background of the matter, was asked by GFA to prepare a briefing note conveying information from GFA to the DA. His engagement in this regard was in his professional capacity as a legal advisor.

184.2 The DA's request to GFA was made because when the "Spygate" story first broke in the press it was stated that the DA (not the City) had used GFA to spy on politicians, and the DA thus wished to ascertain the facts from GFA.

184.3 For purposes of his mandate Nortje consulted inter alia with Du Toit at Goodwood prison on 2 November 2007. He took notes as best he could, but it was agreed between himself and Du Toit that he (Nortje) would need to check dates and details with Van Heerden.

184.4 Nortje sent the draft briefing note to Van Heerden for this purpose. Van Heerden indicated to Nortje that some of the dates and detail in the draft were definitely incorrect. The drafting note was not finalised or amended, and was never sent to the DA.

184.5 It follows that the document is not only privileged but is one which cannot be relied upon for factual accuracy.

185. As to paragraph 211.5.1, it is clear from the context of "ER26" that the imminence of floor-crossing was relevant because Chaaban's suspected misconduct related to the use of improper means to induce floor-crossing.

186. As to paragraph 211.5.2, Nortje in his report was recording what Supt Viljoen had claimed, not what Nortje himself had witnessed. I was not "shocked" at the content of the tapes - as noted earlier, I could hardly make out their contents.

187. As to paragraph 211.5.3, Nortje's note is inaccurate - either because Du Toit's recollection was at fault or because Nortje himself misunderstood what Du Toit had told him. I have stated elsewhere, and repeat, that I met Du Toit for the first time in August 2007, which was long after the Speaker had engaged GFA.

188. I have dealt elsewhere with the matter mentioned in paragraph 211.5.4.

Ad para 214

189. The Premier's unfounded allegations that the Speaker and the City Manager were unwilling to co-operate with the MEC do not improve with repetition.

Ad para 215

190. In the Full Swing Trading matter to which reference was made in the founding affidavit, the then City Manager under the ANC administration authorised payments in amounts totalling over R3m without sight of supporting documentation. The respondents saw no reason to intervene or establish a commission of inquiry. The Premier's expressed concern in the current matter is inexplicably inconsistent. The only apparent explanation that offers itself is a lack of bona fides.

Ad para 225.3 -225.5

191. The content of these sub-paragraphs is utterly irrational and once again demonstrative of the respondents' disregard of their obligations in terms of Chapter III of the Constitution.

Ad para 228.3

192. As explained above, I only became aware of the NIA letter to the former City Manager in 2004 in or about November during the Jordaan Investigation. The ANC, which was in power when the letter was addressed to the City Manager, certainly took no steps to draw the letter to my attention when I assumed the mayoral chair. I point out that Wallace Mgoqi, who was the City Manager in 2004, effectively retained that position for a few weeks after the change of government.

Ad para 233

193. I have responded to the assertions in this paragraph elsewhere.

Ad para 236.2

194. The Premier could at least have decided not to appoint a judge to chair the second commission. It is clear that the establishment of the second commission was no more than a manoeuvre to try to avoid the illegality that the Premier was no doubt advised by his own legal advisers attended his establishment of the first commission.

Ad para 240.2

195. The information could only come have come from one of two sources, the commission or the Premier's office.

Ad para 240.4

196. There are two points arising out of this sub-paragraph on which I wish to comment.

197. The first concerns the provision by the Commission of a private report to the Premier. The incompatibility is demonstrated in conduct by the chairperson of the Commission that indicates that his role was that of a tool of the executive. The chairperson was party to the making of a report by the Commission to the Premier outside of the terms of reference or the regulations pertaining to the Commission. I point out that the furnishing of the so-called progress report is contrary to the provisions of regulations 4 and 5 of the regulations made in respect of the Commission. The private dealing between the commission and the Premier in this manner was irreconcilable with the openness, accountability and independence fundamental to the discharge of judicial functions. The fact that the dealing occurred when the Commission was chaired by a serving judge is liable to undermine public confidence in the judiciary and, having regard to the subject matter of the Commission's inquiry, emphasises the conflict posited by the chairperson's situation in the context of the constitutional framework of a separation between the executive and judicial arms of power.

198. The second point concerns the notion that ‘judges generally chair commissions even in circumstances where it involves executive interests or politically sensitive information'. The Premier's words are resonant of sentiments mired in pre-constitutional legal philosophy. I am advised that a similarly misdirected opinion was expressed by Coetzee AJ in South African Association of Personal Injury Lawyers v Heath and Others, which opinion was strongly criticised by the Constitutional Court in its judgment overruling Coetzee AJ's decision.

Ad para 243

199. The legality of the Premier's decision to establish the first Erasmus Commission was dependent upon the proper compliance by the MEC with the requirements of s 106. As mentioned, the City will apply to amend its notice of motion to expressly introduce a claim for the review and setting aside of the MEC's decision.

Ad para 245

200. As already pointed out the MEC's reasons are required to be set out in a statement to the NCOP. It is plain from the provisions of s 106 that such statement would require to be made contemporaneously with the designation of investigators in terms of s 106(1) (b). No such statement was ever made. The City had no reason to understand that the MEC was purporting to act for any other reason than those which he saw fit to disclose in a media statement, and I deny that he did.

201. The supposed concerns related to the wording of the quotation are pre-eminently matters that the MEC should have canvassed with the City before resorting to the interventionist measure of an investigation in terms of s 106(1) (b) of the Systems Act.

202. The explanations furnished to the MEC should have made it clear that the wording of the quotations was inept and that it had been based on a template of a quotation given in a related matter to the DA.

203. As stated earlier in this affidavit, there is no basis for the contention that the investigation contemplated by item 13 of schedule 1 to the Systems Act had to follow the rules of natural justice.

204. In the context of the explanation furnished to him, the MEC had no plausible reason to be concerned about the ‘back dating' of the approval of the quotation.

205. As to the quotation not having been accepted in writing, I am advised that the requirement for the contract to be "written" is satisfied by the existence of a signed quotation fully recording the contract's terms, however such quotation was accepted.

206. The Premier's reference to "some discrepancy between the procurement of the services of GFA and the available budget within which to do so" has been shown to be based on an elementary misunderstanding of the facts.

207. The authorisation of the expenditure as an exception to the general compliance requirements of the supply chain management policy was plainly justified in the exceptional circumstances. This is cogently explained in the report by Adv Jordaan SC.

208. I have no knowledge of what the Premier means by ‘an intelligence driven investigation'. Investigations are in my experience invariably motivated by a consideration of information received i.e. intelligence. The Shorter Oxford English Dictionary confirms that I have not misunderstood the word. The Code does not define the investigation that the Speaker is required to undertake. As Advocate Jordaan's report correctly points out it is for the Speaker to determine the nature and ambit of the investigation.

209. Assuming that the Premier were able to demonstrate the non-compliance with the supply chain management policy alleged in paragraph 245.7, that would afford no cogent basis for a commission of inquiry. I point out that the City has recently received an unqualified positive report from the auditor-general. In that respect it was one of only eleven of 30 municipalities reported on to receive a positive report, and the only one to receive an unqualified report. I have no doubt that the MEC and the Premier have no intention of appointing commissions of inquiry into the nineteen municipalities that did not receive positive reports.

210. I do not agree with the Premier's contention in paragraph 245.12. In my view it is entirely in order for the City to pay for services in respect of which it received value. Like the City Manager, who is a longstanding non-political senior municipal official, I have no reason to believe that the attendances by GFA in late May 2007 were not relevant and helpful to the investigation they undertook at the Speaker's behest.

211. Mr Nortje was not reporting to the City. Van Heerden's assessment of why, in his assessment, it would be a good business risk to commence work on the investigation in respect of which the DA had made an enquiry before any contract was concluded is an entirely private matter in respect of which a publicly funded inquiry is quite misdirected. As I have already mentioned the impending floor-crossing period was indeed relevant to the suspected misconduct by Chaaban. His alleged misconduct was primarily directed at floor-crossing. The fact that the misconduct was directed at unseating the incumbent multi-party alliance of which the Speaker and I are part in no manner compromised the Speaker's statutory obligation to undertake the investigation.

212. I have dealt fully and adequately with the Premier's professed concerns about the GFA quotations and invoices elsewhere

Ad para 246

213. The WCPG has never troubled to enquire of the City whether other service providers were involved. The Interim Report furnished by the first Erasmus Commission also does not suggest the existence of any evidence that other service providers were involved. I fail to understand in any event what the significance would have been had other service providers in fact been involved. The Premier's affidavit does not suggest an answer.

Ad para 250.2

214. I am advised and verily believe that it is not an ordinary judicial function to issue subpoenas. The protagonists in a matter before the court are ordinarily the parties responsible for obtaining the issuance of subpoenas by the registrar or the clerk of court as the case might be. It is difficult to conceive of a shallower attempt to justify the appointment of a judge to chair a commission of inquiry.

Ad para 250.3

215. I have already addressed the obvious politically charged dimension to this commission earlier in this affidavit. The contention in this sub-paragraph is contrived naïveté.

Ad para 254.4

216. The content of this sub-paragraph is another revealing indication of the respondents' inability to come to grips with their obligations in terms of chapter III and VII of the Constitution. They plainly feel more comfortable in an adversarial role vis à vis the City under non-ANC administration than in the co-operative mutually trusting and supportive role mandated by the Constitution. 

Ad para 258.2

217. Read in their constitutional context, it would be plainly inappropriate for the MEC to resort to the more invasive tool of an investigation through a commission of inquiry. Indeed the requirement of an investigation being ‘necessary' is expressly provided in s 106(1)(b). The MEC does not enjoy an untrammelled choice between acting under s 106(1)(a) and s 106(1)(b) as the Premier would appear to believe. Section 106 should moreover not be read in isolation: the provisions of part I of chapter 10 of the Act read as a whole contains clear confirmation of the notion that the MEC should act with reasonable restraint. (I refer in particular to s 105(3).) Such indications are plainly reflective of the applicable constitutional principles. I submit that s 106 is an integral part of part I of chapter 10 of the Act.

Ad para 261.6

218. The provisions of s 106 afford no proper basis to launch an investigation into the internal conduct of an opposition political party at the local level or an unwarranted and inappropriate intervention into the sphere of local government by the WCPG. The Premier's wrongdoing derives no respectability from his cynical invocation of principles of openness and transparency. The Premier's regard to those principles is highly selective 

Ad para 261.7

219. I have already demonstrated how the Premier has misdirected himself in his assessment of the information that was available to him when he determined on the establishment of both the first and second Erasmus Commissions.

Ad para 261.8

220. The WCPG has no grounds to intervene in the City's administration in terms of s 139 of the Constitution and the Premier's attempt to explain his establishment of the commissions of inquiry as a "prudent" alternative approach is risible.

Ad para 262.2

221. The allegation that I have done nothing to investigate apparently corrupt and unlawful dealings under the former ANC administration is utterly false. My administration has commissioned forensic audits, requested information under relevant statutory provisions, made reports to SAPS as required in terms of the Finance Act and has instructed the City's legal representatives to institute civil recovery proceedings where this is possible. Some of these measures have been reported in the press.

222. If the respondents were conscientiously fulfilling their monitoring roles they would not only have been aware of this, but would have asserted a proactive role in terms of part 1 of chapter 10 of the Systems Act. As I have pointed out elsewhere, the reality is that they have shown no interest, no doubt because of the political embarrassment to their political party. Unfortunately, the City has also not received any help from SAPS (again in strong contrast to the alacrity with which SAPS has assisted the WCPG).

Ad para 262.3

223. The circumstances giving rise to the corrupt sales could have been investigated and appropriate steps initiated against those responsible, particularly in the context that the cancelled sales were to companies reported in the media to have been linked with, among others, the ANC Youth League and the then City Manager's wife. In the current matter, by contrast, it has not been necessary to cancel the contract concluded with GFA or to reclaim any money paid to them; yet there is a commission of inquiry.

Ad para 262.4

224. I fail to see why the Premier hides behind the uncompleted consideration SCOPA in the Full Swing Trading matter. His excuse merely highlights the inconsistency in the WCPG's conduct, since in the present matter the City's request to be allowed to complete its own investigations was ignored. The only explanation for the inconsistency is the respondents' party-political motivation.

Ad para 262.5

225. The Premier's claimed ignorance about other matters of alleged maladministration and corruption under the ANC led administration of the City is unconvincing. One of his given reasons for the establishment of the commissions is the media attention given to the issues he has referred for investigation by the commission - much of that media attention generated at the instance of the MEC; the other matters to which the Speaker referred in the founding affidavit were also matters of media attention. To name just two: the Jewellery City Project; and the N2 Gateway project.

Ad para 265.2

226. To the best of my knowledge and belief GFA has never "worked for the DA". The DA had been considering employing the GFA to investigate Chaaban, but as is clear from the evidence did not pursue that plan when the Speaker decided to proceed with his investigation. I am advised that Ms Fiona Stewart of the City's attorneys of record has ascertained from Van Heerden of GFA that there are a number of GFA companies throughout the country which all operate in association with Ramathe Fivaz Inc. The organisation has, according to Van Heerden, undertaken investigations at the behest of a wide variety of state organs including ANC-controlled municipalities such as the Ekurhuleni Municipality , the Potchefstroom Municipality , the City (when it was under ANC government), the Department of Justice, SARS and Land Affairs to name just some. This shows up the ignorance and paranoia inherent in the remark by the Premier (at para 288 of his affidavit) that the employment by the City of the GFA in the Chaaban investigation ‘points to a systematic use of non-state intelligence sources by the DA in various municipalities'.

227. I am advised that the City's legal representatives indicated to the chairperson of the commission that no imputations were made against him personally as chairperson of the commission. That is correct. It does not detract from the clearly articulated case that his appointment as such was contended by the City to be constitutionally incompatible and invalid; and it also does not detract from my assertion that it was inappropriate for the judge chairing the commission to have been selected, as a former ANC member, by the Premier. I reiterate my publicly stated view that in the circumstances Judge Erasmus should not have permitted himself to have been engaged in the commission. In this sub-paragraph the Premier therefore misconstrues both the City's and my personal stance in respect of Judge Erasmus's appointment.

Ad para 265.4

228. The content of this paragraph is a further instance of the gratuitously defamatory nature of much of the Premier's affidavit. The Interim Report does not afford a respectable platform for his remarks. ‘What has Zille got to hide?' has been the populist refrain effectively, but irresponsibly, maintained by the respondents from the very outset of the City's objection to the legality of the commission. Its corollary is that the City should consent to subject itself to an unlawfully constituted political circus simply because it has nothing to hide. If that were a valid approach in principle the private citizen should then not be heard to object to the unlawful searching of his or her house by a state authority unless he or she has something to hide. If that were the proper approach the rule of law would have little meaning and the potential for the abuse of state power would be unrestrained.

Ad para 265.5

229. The application by the City Manager and various other non-political officers of the City administration who have been separately represented before the Commission for a postponement of the hearings on 14 April was because the hearings had recommenced on a date on which their senior counsel had previously indicated to the Commission was a time when he was unavailable. As barely over a week's notice had been given of the hearings commencing on 14 April they had not been able to obtain a replacement counsel at such short notice. As apparent from the papers, their application for a postponement was refused. This is not the place to go into the merits of the Commission's refusal of the postponement, but the facts do call into doubt the Premier's claim that City officials and office bearers are being ‘accommodated'. The dislocation occasioned to work by the obligation to attend at hearings to listen to evidence and to attend on consultations with legal advisers is obviously not only costly in financial terms, but also disruptive to the efficient running of the City.

Ad para 287.2

230. The content of this sub-paragraph falls to be assessed in the context of the evidence that the establishment of the Commission was preceded by discussions between the Premier and the Provincial Commissioner of Police and a subsequent presentation by the latter to the executive council which on the face of matters occurred in conflict with the provisions of s 199(7) of the Constitution and that the secretary of the commission gave directions to the police during the raid on Van Heerden's house. The Premier's claim is also difficult to reconcile with the information given to me by Adv Nortje, their defence counsel, that Du Toit and van Heerden have been informed that their criminal prosecutions are not proceeding because they are dependent on the outcome of the Erasmus Commission.

Ad para 298

231. The potential for political entanglement by the judge appointed to chair the commission is even more evident in the context of the Premier's answering affidavit than it was when the founding papers were deposed to. As I have said elsewhere, it is also inappropriate to involve a serving member of the judicial arm of government in an exercise that properly resorts in the province of the investigatory organs of executive government such as the police, the NPA and the police. The ‘central mission' of the judicial arm of government is the determination of issues in an adjudicative, not an advisory, capacity. Such determinations ordinarily arise out of such investigations; certainly where matters of alleged criminal conduct are entailed. Importantly, the judiciary's role also includes dispute determination, including legal and constitutional disputes, between organs in different spheres of government. The inappropriateness of Judge Erasmus's appointment is illustrated in the current case also by the considered necessity to import judges from courts outside the Western Cape to hear this matter.

Ad para 300

232. I do not accept the veracity of the contention that the subject matter of the Commission did not have a political dimension. I have dealt elsewhere at length with the inconsistency of the Premier's behaviour that is explicable only on the grounds of political allegiance and motivation. The terms of reference of both commissions make the political dimension of this inquiry patently apparent. If the Premier or Judge Erasmus were not astute thereto at the outset, they can have been under no illusions in that regard by the time of the appointment of the second Erasmus Commission.

Ad para 302

233. I have spoken to the exhaustion of all reasonable steps to avoid litigious dispute with the Premier elsewhere. I emphasise that in invoking the Framework Act, the Premier does not tender effective interim relief if the matter were to be referred back to be dealt with in terms of the Act. It is plain that the dispute is not amenable to further resolution in terms of the procedures available in terms of the Act and that without interim relief the City would in effect be deprived of a remedy in the event of the Commission continuing with its activity. I note that the Premier dismisses this reality elsewhere in his affidavit (at paragraph 305) as ‘academic'. His demeanour in this respect is nothing but cynical. I am advised and verily believe that the Framework Act has to be read consistently with the Constitution and that it cannot be applied to stultify the City's rights in terms of s 34 of the Constitution.

Ad para 304

234. It is unnecessary for the City to demonstrate prejudice. The prejudice inherent in being subjected to unlawful action by an organ of state in another sphere of government is, I would have thought, axiomatic. I have spoken elsewhere about the dislocation in terms of time and money that the Commission is occasioning for the City and its political and non-political functionaries. The political government of the City has a duty to ensure that the integrity of the democratic process is protected by ensuring that the constitutional separation of powers between the respective spheres of government is not subverted. (I emphasise that this is a separate consideration from the issue raised elsewhere in the papers concerning the subversion of the separation of powers affecting the judicial and executive and legislative arms of government.)

Ad para 306

235. The Premier's conduct in proclaiming the second Erasmus Commission with no prior reversion to me on the communications I had initiated in terms of the Framework Act made it plain that he would not have a constructive regard to any further approaches in terms of the Act. His attitude was confirmed by his failure to suspend the sittings of the Commissions to enable the court to determine issues of interim relief. The Premier's offer of certain interim relief on 16 April 2006 was forthcoming only after the presiding judge in the City's application for interim relief had directed a request to the chairperson of the Commission (through counsel appointed by the Commission to appear in opposition to the separate application by the City Manager), to suspend the hearings pending further developments in the hearing of the application for interim relief.

Ad MEC's affidavit

236. I have, in commenting on the Premier's affidavit, already dealt with the matters raised in the MEC's affidavit. I deny the contents of his affidavit where they are inconsistent with what I have said elsewhere.

237. I dispute the MEC's belated attempt to justify his s106(1)(b) decision with reference to additional matter not previously mentioned in his public statement explaining his actions. I do not accept that he had all these other matters in mind.

238. The assertion that the City Manager evinced any intention to avoid co-operation is entirely unjustified, and untrue.

Conclusion

239. The City thus persists in seeking the relief claimed in the notice of motion as amended by the additional prayer set out in paragraph 9 above.

HELEN ZILLE

The deponent has acknowledged to me that she knows and understands the contents of this affidavit which affidavit was signed and sworn to before me in my office at on the day of 2008 in accordance with Regulation No R1258 dated 21 July 1972 as amended by Government Notice R1648 dated 19 August 1977, as further amended by Government Notice R1428 dated 11 July 1980 and by Government Notice R774 of 23 April 1982.

 BEFORE ME

_______________________________

COMMISSIONER OF OATHS

FULL NAME:
DESIGNATION:
AREA OF JURISDICTION: