Having a judge head the politically loaded Erasmus commission undermined the principle of separation of powers, lawyers for the City of Cape Town and the Democratic Alliance argued on Thursday.
The DA-led city and the party have asked the court to quash the commission, appointed by Western Cape premier Ebrahim Rasool to probe the legality of the city’s spying on renegade councillor Badih Chaaban.
Mayor and DA leader Helen Zille has been engaged in a running battle with Rasool over the commission, which she claims was set up with the aim of discrediting her party.
Rasool gave the commission a legal makeover last month after Zille challenged its constitutionality, and it has now been put on hold pending the outcome of the current case.
Two judges — Chris Nicholson and Kevin Swain — have been brought in from KwaZulu-Natal for the hearing, as commission chairperson Nathan Erasmus is a judge in the Cape High Court.
Counsel for the city, Anshley Binns-Ward, told the judges that when the Constitutional Court was asked to rule on a challenge to judge Willem Heath’s position as head of the special investigating unit, it had ruled that the propriety of appointing judges to head commissions had to be determined on a case-by-case basis.
Erasmus had been given a mandate to investigate political corruption — which should be undertaken by the National Prosecuting Authority, and non-compliance with financial spending rules — which was the province of the Auditor General.
Binns-Ward asked what possible reason there could be to appoint a judge on a ”surrogate basis” to undertake those investigations.
The fact that an African National Congress premier had appointed the commission to look into possible criminal dereliction by an opposition party gave the matter an obvious political dimension.
”This is a matter of hot political debate … the political entanglement is there,” he said.
Appointing a judge to head this commission was ”constitutionally incompatible”, he said.
Counsel for the DA, Sean Rosenberg, said it was not for Rasool to ”hand-pick” allegations he believed would be embarrassing to the DA and use them as justification for establishing a commission.
Appointing a judge to head it in this politically charged climate could create the impression that the executive was ”pulling the judiciary over to its side”, he said.
The appointment fell foul of at least three of the caveats raised in the Heath ruling: it risked embroiling the judiciary in political controversy, it usurped the role of law enforcement, and it prevented the judge from carrying out his normal duties.
The establishment of the commission could well result in the public coming to see the judiciary, or at least Erasmus himself, as being functionally associated with the executive and therefore compromised.
The hearing continues on Friday. – Sapa