Sweet vindication for Zille

2008-09-06 00:00

The bellicose response to the Erasmus Commission by Helen Zille, leader of the Democratic Alliance (DA) and mayor of Cape Town, was this week comprehensively vindicated by the High Court. And in scrapping the inquiry into Cape metro shenanigans that would likely have tarred the DA, the ruling also paves the way to a DA provincial victory in next year’s election by making unlikely further African National Congress (ANC) attempts to subvert Zille’s mayoralty.

Judges Kevin Swain and Chris Nicholson found that the ANC-appointed commission, set up ostensibly to probe alleged irregularities in the city, was unconstitutional and an improper means to political ends. Former premier Ebrahim Rasool’s motive was to em-barrass his political opponents, in particular the DA and Zille.

The judges ruled further that the appointment of a serving judge to chair the commission was incompatible with the principle of separation of powers, and was therefore unlawful and invalid. This is a particularly important finding and will leave stillborn any future attempts to use the cloak of the judiciary to give credibility to political vendettas.

This was a favourite tactic of the apartheid government. Immune from the checks im-posed by a Constitutional Court, the National Party politicians of the time shamefully mani-pulated judges to give a gloss of credibility to what were essentially politically motivated kangaroo courts.

Zille had refused to co-operate with the commission, had harried it with interdicts, and had castigated Rasool, who set it up, and its head, Judge Nathan Erasmus.

At the time her harsh words against Erasmus drew fierce criticism, including from this columnist. I accused Zille and the DA of hypocrisy: condemning the Jacob Zuma faction for its attacks on the integrity of the judiciary but, when it suited them, similarly impugning a judge without a shred of evidence.

Justifying the DA administration’s refusal to co-operate with Erasmus, Zille had said that Erasmus was “allowing himself to be abused” by the ANC.

“We will not sit back and allow the ANC to bypass the judicial process by setting up a political hit-squad, with a façade of credibility because it is chaired by a judge, to run a smear campaign of innuendo without any basis in the facts.”

Rasool has since been fired as Western Cape premier by the ANC and faces sliding into political obscurity. Embarrassingly, he has just been appointed as an adviser to Kgalema Motlanthe, deputy president of the ANC. The DA has called for his sacking in the light of the findings.

The judgment, unless reversed, has similarly grim implications for Erasmus who will be generally seen at best to be politically naïve, at worst possibly biased, conniving and incompetent.

Erasmus will likely have to explain to the Judicial Service Commission why he accepted chairmanship of the commission. The court ruled that in doing so he unnecessarily in-volved the judiciary in political controversy, “which may damage the confidence of the public in the judiciary’s core function of determining matters in court”.

Erasmus could plausibly argue the merits of this finding, since there are precedents for such appointments. And while the implication is that Erasmus indeed had been “abused”, the judges stressed that they were making no imputations regarding Erasmus’s behaviour.

More thorny and difficult to rebut is the ruling that he acted unlawfully in providing confidential information that was collected by the commission to the ANC, as did Police Commissioner Mzwandile Petros.

The judgment will also, ironically, be manna for the champions of ANC president Zuma. It lends coincidental credence to their arguments that there is a nexus of conspiracy between top law enforcement officials, politicians in President Thabo Mbeki’s camp and some in the judiciary.

• The full Swain-Nicholson judgment can be found at www.legalbrief.co.za

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