Zille on the Erasmus Commission of Enquiry

EDITED EXTRACT FROM SPEECH BY HELEN ZILLE
LEADER OF THE DEMOCRATIC ALLIANCE
EXTRACT FROM A SPEECH DELIVERED AT THE CAPE TOWN PRESS CLUB
MONDAY 21 APRIL 2008 19:30

“Some judges allow themselves to be abused and I am afraid that Nathan Erasmus is one of them”

Strictly embargoed against delivery: Monday 21 April 2008, 19:30

The ANC has tried and failed to achieve what it wanted through due process of law, under the Constitution. It cannot find anything that I, the City of Cape Town or the Democratic Alliance did wrong in what it has dubbed the “Spygate saga”, a name that has stuck without foundation in the facts. So they have to find another route, via the Erasmus Commission, which we argue is an illegal and unconstitutional political hit squad that the Premier is using to by-pass the due process of law. We are prepared to take our case to the Constitutional Court if necessary to expose this commission for what it is.

If we had done anything wrong, the legal and constitutional route to nail us, would have been through a police investigation, via the prosecutorial authorities, into a court of law.

But, despite an exhaustive police investigation over many months, no charges have been laid and no evidence has emerged that the Spygate allegations have any substance. Indeed, the investigations so far have found no evidence that the City or the DA engaged in illegal spying. The allegation that the City paid a DA account has also been found to be groundless.

When the ANC realized we had done nothing wrong, and that I was correct when I told them that the first commission was unlawful, rather than back down gracefully, they simply established another commission, extending its terms of reference to issues completely unrelated to the so called “Spygate” matter in a desperate attempt to find something that they could use to bring me down.

This second Erasmus Commission is a platform for a parade of people, with deep personal grudges, to wreak revenge against me in particular and the DA in general. They include people like Kent Morkel, Badih Chaaban, Sheval Arendse and Anwaar Isaacs. This collective forms the core of “a coalition of the aggrieved”. The formation of such coalitions is unavoidable in politics, especially if you believe in running a clean administration.

In the process you have to confront people, and even fire them. They inevitably find common cause with each other and with your political opponents. All of these people, despite what they have done, and despite the fact that the criminal justice system has failed to deal with them, still have their rights. If I have breached any them, I am prepared to take the consequences through due process of law, but not through an unconstitutional political hit squad.

Make no error, (and I say this without any delusions of grandeur), the line-up that comprises this hit squad has me in its sights. This is the reason that the spin-doctors at the Premier’s office tried so hard to attach the “Zillegate” label to their probe. Premier Rasool’s aim is to do as much damage as possible, through smear and innuendo, to me personally in the run-up to the 2009 elections with the aim of preventing the party I lead from winning the Western Cape.

Apart from the distortions and outright lies their testimony to the Commission will produce, such hearings will also make the most innocuous events and actions seem suspect. Every morsel will be seized on by reporters labouring under the illusion that they are covering an impartial judicial commission.

The ANC has established this misperception by appointing a judge as chair. As I have said before, some judges allow themselves be abused, and unfortunately Nathan Erasmus is one of them. Instead of issuing a groveling apology to Erasmus for saying this, as some columnists have suggested I do, I am repeating this statement because it is relevant, because it is true, and because our Constitution protects freedom of speech.

By choosing to chair the Commission, Erasmus has ignored the guidelines accepted by the Constitutional Court to prevent this kind of abuse. Incidentally, when I first approached another Judge of the Cape High Court to chair the City’s inquiry, he declined on the basis that the Constitutional Court’s guidelines prevented him from doing so. Nathan Erasmus ignored them and, having done so, he cannot be protected from the consequences. The Commission is not a court, and its chairman is not acting in the capacity as a Judge and cannot expect the deference due to a judicial process. In fact, if anything, Erasmus’s decision to chair the Commission has undermined the independence of the judiciary required by the Constitution.

He showed his hand in the first week by dismissing the applications of four different parties to the matter, for a postponement of the Commission’s hearings until a court of law has ruled on our objections regarding its constitutionality. Instead, he pressed ahead. After all, if the Commission can squeeze in as many witnesses as possible before our case is heard, enough damage will have been done to make the outcome of our court case academic.

It is no coincidence that Zithulele Twala, the Commission’s secretary, is the brother of Mzukisi Twala, the regional editor of SABC television news. I think it is fair to describe SABC’s television coverage of the Commission as “selective” to put it mildly. But its reach is enormous. The Commission will prove to be a poison-dripping tap, over many months, leaving a lethal lake that will be impossible to mop up in the course of my testimony. And I will be overcome by the fumes as I try to do so. But that, of course, is the purpose. And it is pure power abuse.

It has worked very well before in the Desai Commission, which was also a political assassination attempt by floor crossers against their former DA colleagues from the safety of their new home in the bosom of the ANC.

After weeks of irrelevant and unrelated evidence from a parade of witnesses with axes to grind (similar to the line-up in the Erasmus Commission), Desai (who is a former ANC branch chair) pronounced that he had glimpsed into the DA and seen the “Heart of Darkness”.

Because he is a judge, most people treated this opinion with the deference due to the judgment of a court. It was quoted in banner headlines. And the damage to the DA, after weeks of similar front-page reporting, was profound. There is, of course, no appeal from the opinion of a commission. And so we had to live with the outcome of a commission given the cloak of respectability by the appointment of a judge to chair it, but which I believe was simply another political hit squad.

Ironically, just as the Erasmus Commission was getting under way in 2008, Jurgen Harksen was released from prison. He owned up to giving a donation of R500,000 to the ANC -- almost 5 times as much as he was alleged to have given to the DA. This little admission passed by without attracting the attention of a single reporter who so eagerly covered the Desai Commission. But it struck me like a hammer to the temple.

When we look back, we will see the Erasmus Commission in exactly the same cynical light. Then we will ask why we did not in 2008, focus on the burning questions. Questions like:

Why is the ANC so desperate to protect Badih Chaaban?
Who funded Chaaban’s lavish procurement of councilors prior to the floor crossing?
What was Uri the Russian’s links with local politicians; who killed him and why?
What financial transactions transpired between Morkel and Chaaban, and to what end?
Why did the provincial police commissioner, Mzwandile Petros, personally supervise the raid on investigator Philip du Toit’s house?
How did the Premier come to intimately know the contents of what had been confiscated from Du Toit a few hours afterwards?
What was the Premier’s purpose in inviting Patricia de Lille (but not me) to a private hearing and sharing selective snippets prior to a press conference?
What were the real reasons for du Toit’s arrest? Why was he denied bail?

All these questions point to threads in the real tapestry that should be woven into a proper investigation, both by the police and the media to expose the real scandal. No wonder the Premier is trying to divert attention from these issues that go to the heart of our constitutional democracy, through a ploy called the Erasmus Commission.

I have seen this all before, and I am not the kind of person to allow it to happen a second time without fighting back. If I allow this precedent to become established the ANC will abuse its overwhelming power, against any opponent anywhere who poses a credible threat.

My role is to do the best I can to govern Cape Town, to build a viable opposition and to prevent a one-party state. These goals are in the best interest of South Africa, but they are not in the interests of the ANC. The ANC is therefore going to do whatever is necessary to prevent me from achieving them, by fair means or foul.

Their means are often unconstitutional as well, including the unceasing provincial interference in the domain of local government, to frustrate our capacity to do our job. The media presents these as petty political rows, and rarely recognizes their profound constitutional implications.

In fact, they are all the small steps that cumulatively, over time, widen rather than narrow the gap between the ideals of our Constitution and the reality of our time. Bit by bit they take us in the direction of Zimbabwe.

Our struggle is to prevent that. Exposing and resisting the political abuse represented by the Erasmus Commission, is one small step in our quest to do just that. And I will not shrink from it.

A Message from Helen Zille

Recently, in a radio interview, I made the following statement regarding the Erasmus Commission of Inquiry:

“Some judges allow themselves to be abused, and unfortunately Nathan Erasmus is one of them.”

Die Burger criticized this statement as a challenge to the independence and integrity of the judiciary. On the basis of the advice of Senior Counsel, I am advised that Die Burger’s interpretation is incorrect. Below is my response to Die Burger, published this morning (Afrikaans version follows below).

Best wishes,

Helen Zille
Leader of the Democratic Alliance


To the Editor:

It is ironic that Die Burger’s editorial claiming to defend the independence of the judiciary does precisely the opposite.

The editorial is misguided and wrong. Its faulty premise is that Nathan Erasmus is chairing the Erasmus Commission in his capacity as a Judge and is therefore above criticism. He is NOT acting as a judge. He is merely the chairman of a commission. The commission is not above criticism and nor is its chairman. Furthermore, in accepting the appointment to chair the Commission, Erasmus ignored guidelines laid down by the Constitutional Court, which recommended that Judges turn down appointments outside of a court when such positions “create the risk of judicial entanglement in matters of political controversy.”

Nathan Erasmus has gone against this injunction and cannot be protected from the consequences. The commission he agreed to chair is, we contend, unlawful and unconstitutional. It was established by the ANC as a political hit squad to conduct a drawn-out witch-hunt to smear the opposition in the run-up to the 2009 election. The ANC’s purpose in appointing a judge as chair is to provide a veneer of judicial respectability and protection normally accorded by the public to a court of law. This strategy has worked well because many others, besides Die Burger, are treating the commission and its chairman with the deference applicable to a court of law. There is no legal or constitutional reason to do so. And there is no threat to the independence of the judiciary to say so.

There is, however, no doubt that the independence of the Judiciary is being harmed by Nathan Erasmus’s decision to accept appointment to such a political instrument. It is this decision -- and not my criticism of it -- that harms the independence of the judiciary.

Die Burger is also entirely wrong to suggest that I have a remedy in due legal process. Again Die Burger is confusing the commission with a court. There is no remedy in law from the outcome of a commission. The Commission delivers a report which is nothing more than the opinion of its members. A commission’s report does not have the status of a judgement or the weight of a court behind it. There is no right of appeal against its “opinion” and the “legal processes” that Die Burger states are available to me and the City do not exist. Die Burger made this claim because it was confusing the Commission with a judicial process. This confusion, which is widespread, is the very reason judges should not readily accept invitations by politicians to chair commissions of this type.

If there was any hint of wrongdoing by me or the City, we would have been charged in criminal proceedings instituted by the prosecuting authority if that authority was satisfied that there was a prima facie case that we should answer. The Premier has not used the ordinary judicial process because, despite months of investigation, there is no basis for any charge. So a smear campaign must do instead. That is what the Erasmus Commission is all about.

I will continue to say so because it is the truth and because we have a constitution that protects free speech. This is really the way to defend a “Regstaat”, not by cloaking a witch-hunt in the veneer of judicial respectability.


Aan die Redakteur:

Dit is ironies dat Die Burger se hoofartikel beweer dat hy die onafhanklikheid van die regbank beskerm, maar juis die teenoorgestelde doen.

Die hoofartikel (16 April 2008) is dwaas en verkeerd. Die onsuiwer veronderstelling is dat Nathan Erasmus in sy hoedanigheid as regter die voorsitter van die Erasmus-kommissie is, en daarom bo enige kritiek verhewe staan. Hy tree NIE as ’n regter op nie. Hy is bloot die voorsitter van ’n kommissie. Die kommissie is nie bo kritiek verhewe nie, en die voorsitter daarvan ook nie. Toe Erasmus die aanstelling as voorsitter van die Kommissie aanvaar het, het hy voorts die riglyne wat die Konstitusionele Hof neergelê het, in die wind geslaan, naamlik dat regters aanstellings buite ’n hof moet weier indien só ’n posisie “die gevaar van ’n geregtelike verstrengeling in polities omstrede sake” inhou.

Nathan Erasmus het geen ag op dié opdrag geslaan nie, en kan nie teen die gevolge beskerm word nie. Die kommissie waarvan hy ingestem het om die voorsitter te wees, is na ons mening onwettig en ongrondwetlik. Die ANC het dit as ’n politieke moordbende ingestel om ’n uitgerekte heksejag uit te voer ten einde die opposisie in die aanloop tot die verkiesing van 2009 verdag te maak en te ondermyn. Die ANC se doel toe hy ’n regter as voorsitter aangestel het, was om die skyn van geregtelike aansien en onafhanklikheid wat die publiek gewoonlik aan ’n geregshof toeken, daaraan te verleen. Dié strategie het goed geslaag, want buiten Die Burger benader talle ander die Kommissie en sy voorsitter met die agting wat ’n geregshof toekom. Daar is geen regs- of grondwetlike rede om dit te doen nie. Dit bedreig die onafhanklikheid van die regbank ook geensins om dit te sê nie.

Dit staan egter bo enige twyfel dat Nathan Erasmus se besluit om ’n aanstelling in só ’n politieke werktuig te aanvaar, die onafhanklikheid van die regbank skade aandoen. Dit is dié besluit – en nie my kritiek daarop nie – wat die onafhanklikheid van die regbank knou.

Die Burger is ook geheel en al die kluts kwyt deur aan die hand te doen dat ek ‘n behoorlike regsremedie het. Die Burger verwar die Kommissie nogmaals met ’n geregshof. Daar is geen regsmiddel teen die uitslag van ’n kommissie nie. Die kommissie lewer ’n verslag wat bloot die mening van die lede weerspieël. ’n Kommissie se verslag het nie die status van ‘n uitspraak of die gewig van ‘n hof ter steun nie, al word dit algemeen so gesien. Daar is geen reg op appèl teen sy “mening” nie, en die “regsprosesse” wat volgens Die Burger vir my en die Stad beskikbaar is, bestaan binne die konteks van die kommissie nie. Die Burger maak dié stelling omdat hy die Kommissie en ’n geregtelike proses verwar. Hierdie verwarring is baie algemeen, en juis die rede waarom regters uitnodigings deur politici om as voorsitters van hierdie soort kommissie op te tree, nie geredelik moet aanvaar nie.

As daar enige sweem van ’n misdryf deur my of die Stad was, sou ons strafregtelik voor ’n hof gedaag gewees het. Die vervolgingsgesag sou só ’n geding aanhangig gemaak het indien hy tevrede was dat ons ’n prima facie-saak sou moes verdedig. In só ’n geval sou ons nie net die grondslag van die aanklag kon betwis voordat die eerste getuienis gelewer word nie maar indien ons van mening was dat ’n ongunstige oordeel ten onregte oor ons uitgespreek was, kon ons dit met ’n appèl voor ’n hoër hof uitdaag. Die Premier het ’n gewone regsproses gesystap, want ondanks ondersoeke wat maande geduur het, is geen gronde vir ’n klag gevind nie. ’n Smeerveldtog moet dus maar deug. Dit is waarom die Erasmus-kommissie draai.

Ek sal dit bly sê, want dit is die waarheid, en ook omdat ons ’n Grondwet het wat spraakvryheid beskerm. Dit is hoe ’n mens ’n regstaat beskerm, en nie deur ’n heksejag die skyn van geregtelike aansien te gee nie.