By Lindsay Dentlinger
Former premier Ebrahim Rasool acted with political motive and beyond his powers when he established the Erasmus Commission of Inquiry to probe alleged maladministration and spying in the City of Cape Town, the Cape High Court has found.
Pietermaritzburg High Court judges Kevin Swain and Chris Nicholson, in a two-hour reading of their judgment on Monday, declared that the proclamation setting up the Erasmus Commission of Inquiry was inconsistent and invalid, saying Rasool had based his decisions on information that was obtained illegally.
Rasool had no right to request or receive an interim report of evidence from the commission, nor confidential police information supplied to him by provincial police Commissioner Mzwandile Petros, they said.
In addition, the chairman of the commission, High Court Judge Nathan Erasmus, was also not entitled to furnish the report to Rasool.
Following the reading of the judgment of the review application brought by the City of Cape Town in the High Court on Monday, the judges ordered that the Premier's office pay the legal costs of the city and the DA in all the legal proceedings it instituted with the aim of stopping the commission.
The judges said it was "clearly untenable" to conclude that Rasool was motivated to establish the commission by a "cogent belief" and that it was rather an arbitrary decision on his part.
But ultimately, Rasool's actions were unlawful.
"His only motive was to embarrass and discredit his political opponents, especially the DA," the court found.
The former premier's assertions that he had not acted with political motive when he established the commission was "far-fetched" and "untenable", the judges said.
Judge Swain said Rasool had acted ultra vires in establishing the second Erasmus Commission after disbanding the first.
"It is clear that such authority does not rest with the premier."
It was clear there was a high degree of animosity and mistrust between political opponents in the province and the rivalry between the ANC and the DA had to be taken into account in reviewing the legality of the Erasmus Commission.
Rasool had selected Judge Erasmus to chair the commission to "cloak his ulterior motives with the colours of a neutral office", said Judge Swain.
"That the executive would want to use a judge is one matter. That they allow themselves to be used, is another matter.
"It's an antithesis of the separation of powers," he said.
The court also found that it had been unlawful for Petros to have supplied information to the provincial executive. The judges said that if the SAPS was going to share information with the government, it should have been to the full legislature and not the executive only.
To expect the commission to investigate potential criminal conduct of those involved was "inherently undesirable" as it would blur the functions of the executive and the police.
Of the contentious interim report compiled by the commission's evidence leader, Frans Petersen, the court said this was "quite clearly" prepared at Rasool's request, in spite of his assertions to the contrary. He had no right to request or receive information from the commission.
By establishing the commission of inquiry, Rasool had usurped the functions of the former MEC for local government and housing, Richard Dyantyi, who had announced in November that he would be investigating claims of spying in the city council.
It was "superfluous" for the premier to have thus appointed a commission.
Judges Swain and Nicholson said the premier could not claim that the city had been unresponsive in responding to concerns raised by the provincial government, nor that it was unco-operative on any investigations into the issues.
The court said it was satisfied that city manager Achmat Ebrahim had responded in writing to letters from Dyantyi and had outlined the steps he planned to take on the matters raised. The city had thus demonstrated its willingness to co-operate with the provincial government.