By Lindsay Dentlinger and Murray Williams
Mayor Helen Zille has called out provincial Police Commissioner Mzwandile Petros for unlawfully assisting the then premier, Ebrahim Rasool, in "conducting a political witchhunt" against the DA-led City of Cape Town administration.
Zille's accusation follows the Cape High Court finding on Monday that Rasool had set up the Erasmus Commission unlawfully and with political intent.
Judges Kevin Swain and Chris Nicholson also ruled unlawful the police raid on the Parklands home of Phillip du Toit, the investigator at the centre of the Badih Chaaban "spy" row, after his arrest on a hijacking charge.
Judge Swain said the presence of Petros at the raid was "strange", and it could not be ruled out that the raid had been carried out with the express intention of obtaining information in support of the commission of inquiry.
At the time Du Toit was working for George Fivaz and Associates, the firm hired by the city to investigate charges of bribery and intimidation against maverick councillor Chaaban.
Now Du Toit and Niel van Heerden, a director of George Fivaz and Associates, plan to sue Rasool for damages they allege they suffered as a result of the Erasmus Commission fiasco.
Van Heerden's Mossel Bay home was also raided by police in December and he is yet to face fraud charges.
Zille charged on Tuesday: "It shows Petros was playing a political game all along and was abusing police powers to assist a political witch-hunt.
"He has clearly flouted the constitutional principle of separation of powers.
"It has revealed that neither the provincial government nor the police understood the principle of the separation of powers.
"There was no spying - there was just a completely legal investigation into Badih Chaaban."
After Monday's High Court ruling declaring the commission invalid, the lawyer for Du Toit and Van Heerden, Johann Nortjé, said it was clear his clients had been arrested and searched for the express purposes of the Erasmus inquiry.
The High Court upheld the view that there had been no evidence of illegal interception of communication during investigations by GFA.
Nortjé said Rasool would be sued in his personal capacity, as taxpayers should not be expected to foot the bill for his illegal actions.
The court found unacceptable the police view that criminal charges against Van Heerden and Du Toit would not be heard until the outcome of the Erasmus Commission was known.
On Monday the judges said this was an "intolerable situation".
Petros had also acted unlawfully by giving Rasool information seized during the raids and briefing the provincial executive on confidential police investigations.
The provincial executive had no entitlement to information from the SAPS.
The police had to be politically neutral, the judges said.
If there was sufficient evidence of a crime having been committed, the SAPS should have investigated and referred the matter to the Directorate of Public Prosecutions to prosecute.
A commission of inquiry could not be expected to determine criminal wrongdoing.
Responding to the judgment on Tuesday, Petros's spokesperson, Novela Potelwa, said they were still trying to obtain a copy of the judment and would not comment until they had studied it.
The DA's Lennit Max called for Petros to resign or be suspended immediately.
"The police national commissioner should now institute an investigation into the findings to determine whether Petros acted unlawfully.
"Secondly, if he contravened any act, he should be investigated criminally."
Of the finding on Rasool's ac-tions, Zille said: "Rasool, if he hadn't been kicked out earlier, would have to be fired now.
"It would be untenable for a sitting premier to have a full bench of court saying he had abused his power for an ulterior political motive and acted in bad faith."