CITY AFFIDAVIT IN ERASMUS COMMISSION CASE: RASOOL LIED UNDER OATH

As part of the City of Cape Town 's legal action against the Erasmus Commission of inquiry into the City's probe of bribery and intimidation allegations against Cllr Badih Chaaban, I have today submitted an answering affidavit [a copy is appended below] to the Cape High Court in response to Premier Rasool's affidavit. This is the second submission by the City, following the Speaker's founding affidavit last month.

In this affidavit I reveal that Premier Rasool has lied under oath on a number of points to justify his illegal appointment of the Erasmus Commission:

• The Premier states in his affidavit (paragraphs 26.2 and 54) that he was compelled to launch the second Erasmus Commission because he had evidence that unlawful surveillance had been carried out by the City.  However, the interim report of the first Erasmus Commission, which is annexed to Rasool's affidavit, directly contradicts this. The report dated 4 March 2008 records in paragraph 11.3.8 that evidence-leader Petersen found no evidence to date that third-party monitoring of conversations took place without the permission of one of the parties to the conversations. The monitoring was thus lawful. The Interim Report also contains no evidence of trespassing, unlawful entry or the like by George Fivaz & Associates.
• The allegation (para 120) that I was involved in regular Monday-morning meetings with GFA operatives is absolutely false, and is not supported by the Interim Report or any other evidence.
• The Premier makes the false statement in his affidavit (para 26.5) that the City made no reports to SAPS on the allegations against Cllr Badih Chaaban. In fact, two charges were laid with the SAPS, one on 26 June 2007 on behalf of the City by Fivaz & Associates, and a second, when no action was taken, by the Speaker on 11 July 2007.
• The Premier's claim (para 62) that a tape recording between Cllr Trout and Cllr Chaaban handed by the City to the SAPS as evidence was "potentially" unlawful is false - Trout was party to the conversation and the recording was therefore legal.
• In his affidavit (eg. Paragraphs 70 and 214) the Premier states that the City Manager and Speaker did not co-operate with the MEC for Local Government Richard Dyantyi during his enquiries into the GFA investigation. This is a lie. At no point did the City refuse to answer questions, or fail to respond to correspondence from the MEC.
• The Premier's claim (para 262.5) to have ‘insufficient detail' about other matters of alleged maladministration and corruption under the ANC led administration of the City is dishonest given the media attention these received.

The City also submits that the Premier has acted contrary to his stated objective of ensuring ‘transparency' through the Erasmus Commission:

• From the list of witnesses to appear before the Erasmus Commission, neither the Premier nor the Local Government MEC Richard Dyantyi were going to take the stand, even though it is on the basis of their concerns that the Commission was called. Commissioner Petros was also not listed.
• The Premier did not make the Interim Report of the Erasmus Commission available to the City when we requested a copy.
• The Premier has refused to reveal the senior counsel opinion that he received on 28 February 2008 on the legality of the first Erasmus Commission. This raises the question of whether he was advised it was illegal. If this is so, then he acted in bad faith by not admitting this to the public, and in using evidence gained in that commission as a basis for the second one.
• The Premier appointed a judge who used to be a member of the ANC to chair the Commission of enquiry, instead of appointing one who had no political history.

A number of the allegations in the Premier's affidavit are misleading and made in bad faith:

• The Premier states that my cellphone records indicate personal contacts with GFA, insinuating that I was in some way improperly involved in the investigation into Chaaban.  However, the records show I received one missed call from GFA's Van Heerden in June 2007, and I had one conversation with Van Heerden some months later (in October 2007) after the investigation into Chaaban had been completed. This does not constitute the kind of close involvement that Rasool has insinuated.
• The Premier makes repeated references to ‘underworld agents' when mentioning George Fivaz & Associates in an attempt to place the City's procurement of their services in a negative or sinister light. Yet this company is used by ANC controlled governments and government organs across the country, including Erkhuleni Municipality, the Potchefstroom Municipality, Cape Town Municipality (when it was under ANC government), the Department of Justice, SARS, Land Affairs and the Presidency to name just some.

The City submits that the police have acted inappropriately and in some cases illegally in assisting the Premier in his political activities:

• When the police questioned me in Bellville Police Station, Inspector Viljoen boasted about the embarrassment his investigation had occasioned to the DA in the Desai Commission and made it clear he was convinced that I personally had done something wrong.
• I have been informed that police have not acted in criminal cases against Chaaban or Du Toit because they are awaiting the outcome of the Erasmus Commission. This is unlawful, since the SAPS should carry out their investigations independently of government actions launched by politicians.
• The SAPS and the Organised Crime Unit closely assisted the Erasmus Commission and the Premier with gathering evidence, which is a breach of the Constitutional separation between the political sphere and the police. For example, GFA's Van Heerden claims that police Organised Crime Unit took instructions over the telephone from Zithulele Twala, the secretary of the Commission, on which items to seize during a raid on his house. If true, this violates section 199 (7)(b) of the Constitution of the Republic of South Africa.
• Under cross examination during the Erasmus Commission, Supt Siegelaar, with whom the City's charges against Chaaban were laid, admits to not having read all of the statements provided to him, or listened to the full tape recording between Chaaban and Trout in which Chaaban makes offers of bribes and threats against councillors. At best this is gross dereliction of duty. The City was also advised by Du Toit that when he laid the charge against Chaaban Siegelaar told him if the charge had a political context the case would be removed from Siegelaar's control and he would never hear of the matter again. The assistance the police gave the Premier's Office stands in stark contrast to their (lack of) service to the City of Cape Town.

To conclude, the City submits that the Premier has acted beyond his powers in appointing the Erasmus Commission, and has done so in bad faith:

• The financial concerns he raises (which are not valid concerns in the City's view) should rightly be considered and checked by the Auditor General.
• The criminal allegations he makes should have been given to the police or the National Prosecuting Authority, not investigated by the Premier himself, who is a politician.
• The series of lies in the Premier's affidavit and in his public statements used to justify the Erasmus Commission points to bad faith.
• The fact that the Province failed to institute a Section 106 investigation or Commission of Enquiry when the Big Bay and Jewellery City tender scandals were reported in the media while the ANC was in office in Cape Town reveals his true political motives.

Statement issued by Mayor of Cape Town Helen Zille May 7 2008