Counsel for Cape Town Mayor Helen Zille asked the Cape High Court this week to strike down the Erasmus Commission investigation into Cape Town’s ”Spygate” saga, arguing that it is unconstitutional and should not be headed by a judge.
Minister of Justice Brigitte Mabandla appointed two KwaZulu-Natal judges to adjudicate the latest bruising round between Zille and Western Cape Premier Ebrahim Rasool over the legality and constitutionality of the commission.
It was deemed inappropriate for Cape Town judges to sit — Judge Nathan Erasmus is a member of the Cape division — so Judges Kevin Swain and Chris Nicholson heard argument this week from Zille’s legal team that the commission is illegal and in breach of constitutional principles.
The DA brought a similar application, while Rasool’s legal team, led by Jan Heunis and Norman Arendse, opposed. Heunis is also acting for Western Cape local government minister Richard Dyantyi.
Rasool established the commission six months ago to probe ”Spygate” — the city’s allegedly illegal investigation of National People’s Party (NPP) leader and councillor Badih Chaaban, accused of using unlawful methods to encourage DA councillors to defect to an NPP-ANC alliance.
It has hardly got off the ground after the first commission was incorrectly set up and set aside. Rasool’s initiative now faces another challenge.
Calling the commission ”absurd” Zille’s counsel, Owen Rogers, said Rasool had no business appointing an inquiry into the legitimate business of an autonomous municipality with independent powers.
He called for the court to strike down the commission altogether, arguing that its establishment is unconstitutional and that for a judge to head such a commission also violates the Constitution.
”This is not a judge’s job, it is the job of the chairperson of a commission. The Constitutional Court makes it clear that there has to be a separation of powers,” said Ashley Binns-Ward, also acting for Zille.
”The premier is still anxious to show that the first Erasmus Commission was valid because of its collection of information.
”We want to say that its information was unlawfully collected and was therefore not valid,” Rogers said.
Heunis said Rasool’s argument is ”straightforward”: ”The Constitution allows the premier to appoint a commission and he is merely exercising that.”
Zille has consistently maintained that the Erasmus Commission has politically abused the police to aid Rasool in his fight with the DA-led city council.
The police’s organised crime unit has denied this, saying that it was subpoenaed by the commission to hand over confiscated information.