/ 16 May 2008

Ruling on Erasmus commission reserved

A full bench of judges on Friday reserved a ruling on the bid by the City of Cape Town and the Democratic Alliance (DA) to quash the Erasmus commission.

The commission was set up by Western Cape Premier Ebrahim Rasool to probe the DA-led city’s investigation of renegade councillor Badih Chaaban, who allegedly tried to bribe colleagues in the run-up to last year’s floor-crossing window.

The city and the DA claim Rasool, an African National Congress politician, had purely political motives in appointing the body, and that the use of a serving judge — Nathan Erasmus — to head it, is unconstitutional.

However, Rasool’s senior counsel, Jan Heunis, told Friday’s hearing in the Cape High Court that the city had no legal right to even be in court to challenge the commission.

He told judges Kevin Swain and Chris Nicholson, brought down from KwaZulu-Natal to hear the matter as Erasmus is a Cape judge, that it would be hard to think of a better example of an intergovernmental dispute than this case.

The Intergovernmental Relations Framework Act laid down that an organ of state such as the city government had to formally declare a dispute in writing.

Only after making every reasonable effort to resolve the dispute could it approach a court.

It was fact that the city had neither formally declared the dispute, nor tried to settle it, and for that reason it could not have instituted the current proceedings.

Heunis said the fact that the DA had joined the proceedings at a later stage could be accounted for only by the city’s realisation that it was doomed to failure.

The DA participation kept the court challenge alive.

”The city should not be here as a matter of law,” he said.

However, Owen Rogers, for the city, said the Constitution laid down that a party need only make reasonable efforts to settle a dispute, and that the Act did not trump the Constitution.

In the circumstances, the city had indeed made all reasonable efforts towards a resolution.

He also said there was no rational foundation for the suggestion that the city had taken over a probe initiated by the DA.

Though a report commissioned by the city from investigators George Fivaz and Associates read at times more like a Laurel and Hardy show than Sherlock Holmes, there was nothing to show the investigation was directed at serving the DA’s interests.

Judge Nicholson said, at the end of two days of argument, that a mere glance at the legal authorities and papers handed in during the hearing indicated that it might be some time before judgement was delivered.

He said he and Swain would work as quickly as possible, because the case was clearly important for the region and the city. — Sapa