Cape Town mayor Helen Zille has accused cellphone giant Vodacom of helping the ANC-controlled Western Cape government to illegally spy on her.
Vodacom handed more than six months’ worth of Zille’s detailed call records to the Erasmus Commission of Inquiry. The inquiry was set up late last year by then premier Ebrahim Rasool to probe allegations that the City of Cape Town and the Democratic Alliance broke the law when investigating the controversial councillor Badih Chaaban.
The Cape High Court this week ruled that the commission was illegal and unconstitutional.
”[Rasool’s] only motive on the evidence in establishing the second Erasmus commission must have been to embarrass or discredit political opponents, particularly the DA,” Judges Kevin Swain and Chris Nicholson said in their ruling.
Zille’s call records formed a crucial component of an ”interim report” handed to Rasool by the commission last year. He used this report to justify reconstituting the inquiry after Zille challenged its constitutionality. The interim report stitches together the record of calls between Zille, senior DA leaders and the private investigators working on the probe of Chaaban in an apparent effort to show that she was the driving force behind the ”spying”.
Commission chair Judge Nathan Erasmus broke the commission’s own rules when he gave the report to Rasool, the judgement finds. ”Consequently, the information contained in the summary of evidence was obtained by the premier unlawfully.”
Zille told the Mail & Guardian that she phoned outgoing Vodacom chief Alan Knott-Craig to complain and had briefly considered taking legal action against the company.
”They handed my full phone records over a period of more than six months to a political opponent engaged in a witch-hunt. It is outrageous.
”They obviously didn’t do due diligence of any kind on the legality of the request to hand over my records. It just shows that they have to be a whole lot more careful about protecting their clients’ privacy.”
Zille suggested that her call records would have provided crucial political intelligence to the ruling party. ”They wanted to see who I had been speaking to during the floor-crossing period,” she said.
Vodacom’s chief communications officer, Dot Field, said: ”While we understand and respect Ms Zille’s concerns, Vodacom received a subpoena from the Erasmus Commission, which was deemed to be a judicial commission of inquiry, and as such, Vodacom provided the information as demanded in terms of the subpoena.”
This is not Zille’s first complaint about improper surveillance. She met with Intelligence Minister Ronnie Kasrils earlier this year after learning that the landline at her Rosebank home had been tapped.
The judgement is also sharply critical of police Provincial Commissioner Mzwandile Petros. The judges said Petros breached the separation of powers by passing evidence from police raids on Phillip du Toit and Niel van Heerden, the private detectives employed by the city, to Rasool, rather than to the prosecuting authorities.
Zille told the M&G Petros has ”no alternative but to resign”, and called on Minister in the Presidency Kgalema Motlanthe to sack Rasool, who was last week appointed as his special adviser. ”In light of the Cape High Court judgement he is unfit for any form of public office,” she told journalists on Wednesday.
Rasool was sanguine: ”I would probably be as opportunistic as her if I was in the position she finds herself in today,” he told the M&G. He went on to make what could be read as a subtle dig at his replacement in the premier’s office, Lynne Brown, who said she will abide by the judgement.
”The reason [Zille] finds herself in that position is that I no longer have the power to appeal. There are many things in the judgement that I would want to take issue with. There are some gratuitous statements and some dangerous precedents. But I don’t have the power, and it is in that vacuum that she has this opportunity. I would allow her this opportunity to make all the noise she was unable to make while I did have the power.”
Rasool’s opponents in the provincial ANC were always sceptical about the commission, and people close to the former premier now concede that his decision to press on with the commission can partially be explained by his political isolation at the time and his need for a victory.
They are critical of Brown, however, saying she is not using her platform in government to take the fight to the DA ahead of next year’s elections.
ANC deputy provincial secretary Max Ozinsky said: ”Those might be comrade Ebrahim’s views, but the provincial executive committee will discuss the matter this weekend and decide the ANC’s views.”
‘Erasmus commission ruined my life‘
Phillip du Toit, who conducted surveillance of controversial councillor Badih Chaaban on behalf of the City of Cape Town, is an angry man.
It was when police arrested Du Toit that they came across surveillance equipment and recordings of conversations, some of them between Chaaban and councillors he was trying to induce to cross the floor. Police initially believed they had found evidence of illegal bugging, but have so far been unable to substantiate the allegation.
”My life has been ruined by the Erasmus commission and what [Ebrahim Rasool] and the police said about me. I was in jail for two months. On national television I was called a criminal and a hijacker and perlemoen smuggler. Meanwhile I worked for the National Intelligence Agency [NIA] and the work that I’ve done has seen to the successful prosecution of at least 12 people,” he said.
Du Toit infiltrated Chinese perlemoen syndicates in the Western Cape and Gauteng and was arrested on two occasions by the police in possession of large quantities of perlemoen. At the time of his arrest he was in the process of being handed over as an informant from the NIA to the Scorpions.
”I was exposed by the police although I’ve asked them to protect me. Today my life is in danger,” he told the Mail & Guardian.
His NIA handler Kassie Carstens faced disciplinary charges over the affair and is in the process of appealing against his dismissal.
Both Du Toit and Niel van Heerden, the South Cape chief of investigation firm George Fivaz and Associates, say they plan to sue Rasool in his personal capacity. Van Heerden subcontracted Du Toit to do the Chaaban investigation.
”The interim report of the commission’s evidence leader said that there is no evidence of any illegal spying done by us — and yet Rasool continued to call us the ‘intelligence wing of the DA’ and to say that we are crooked,” Van Heerden said, adding that the publicity had seriously damaged his business. ”Our political clients are uncertain if they can still trust us. I’ve been arrested. I was handcuffed and led out of my house by the police. Before the end of the month, we’re suing”. — Pearlie Joubert