City advised that Erasmus Commission illegal and unconstitutional

Today I have written to Western Cape Premier Ebrahim Rasool to draw his attention to the following points arising out of the Province's establishment of the Erasmus Commission into the City of Cape Town 's probe of Cllr Badih Chaaban:

1.) We have received senior counsel opinion stating that the Erasmus Commission is unlawful and unconstitutional.

2.) We have been advised that the MEC can only launch a commission in terms of Section 106(1)(b) of the Municipal Systems Act if the necessary conditions exist for this kind of intervention, namely the MEC must have adequate "reason to believe" that "maladministration, fraud, corruption or any other serious malpractice" has occurred.. However senior counsel has advised that none of these conditions applied at the time of the investigation, and that the decision to appoint the commission is therefore unlawful and unconstitutional.

3.) If the necessary conditions for the Erasmus Commission do not exist, there must be another agenda behind its appointment. This would be unconstitutional - it would amount to an illegitimate interference by one sphere of government in the affairs of another, and an abuse of the state by the ANC for party political purposes.

4.) An independent investigation carried out by Advocate Josie Jordaan of the Cape Bar found no evidence of illegal spying by the City, and concluded that the Speaker had launched a legitimate and legally required investigation into the activities of Councillor Badih Chaaban. Chaaban was considered so dangerous by the NIA that they wrote in 2004 to the City Manager and Mayor of Cape Town warning that he was involved in underworld and criminal activities (including murder) and posed a safety risk to the Municipality. Despite this, the police have never laid charges.

5.) The legal costs alone of the Erasmus Commission will amount to approximately R5 million, and the City can expect fees in the region of R2 million. Given the unlawful nature of the Commission, would amount to fruitless and wasteful expenditure.

6.) The City of Cape Town has already put all evidence in the public domain, and the police have been investigating this matter for five months, with full access to this evidence, including tape recordings. If they suspect criminal activities on the part of anyone in the City or any other organisation involved, the police must lay a charge. So far they have not done so.

7.) There is nothing that a hugely expensive commission can do over and above the work of the police except generate a media circus for the benefit of the ANC. We can also use this platform to great effect to expose the unconstitutional abuse of state instruments and public funds for the ANC's political agenda. But using the platform of the Commission could be seen as condoning this cynical abuse of power and public funds. That this is the MEC's real intention is supported by the fact that he took no similar action when other far more serious questions had been raised around the R8 million in unaccounted for expenditure on the African Jewellery City Contract, which came to light in 2005 under the former ANC administration. The same applies to the multi-million rand Big Bay deal, and more recently, the MEC has not acted on the R3.4 million in City funds unaccounted for in the appointment of Full Swing Trading by the former ANC administration. This even though the ANC's own chief whip, in his capacity as head of the City's Standing Committee on Public Accounts, has raised serious concerns about this contract.

I have told Premier Rasool that the Erasmus Commission is a gross abuse of power, taxpayers' money, and officials' time. It will waste millions of Rands on promoting the ANC's political purposes.

I have told him that this will be clear to everybody, and I will make it repeatedly clear from the witness box when I am called to testify. So will all other City witnesses.

I have asked him to apply his mind to correcting this serious and unconstitutional abuse of power and the use of state instruments for party political purposes, and I have told him that the City reserves its right in this regard.

Statement issued by the Mayor of Cape Town, Helen Zille, February 7 2008