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[2008] ZAWCHC 52
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City of Cape Town v Premier of the Western Cape and Others (5933/08) [2008] ZAWCHC 52; 2008 (6) SA 345 (C) (1 September 2008)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION
)
In the matter between:
CASE NO. 5933/08
THE CITY OF CAPE TOWN
.................... APPLICANT
and
THE PREMIER OF THE
WESTERN CAPE .................... FIRST RESPONDENT
THE MINISTER FOR LOCAL
GOVERNMENT AND
HOUSING IN THE
PROVINCIAL GOVERNMENT
OF THE WESTERN CAPE
.................... SECOND RESPONDENT
THE HON. MR. JUSTICE
N.C. ERASMUS N.O. .................... THIRD RESPONDENT
GEORGE
PAPADAKIS N.O. .................... FOURTH RESPONDENT
HERDIE VERMEULEN N.O.
.................... FIFTH RESPONDENT
DEMOCRATIC
ALLIANCE .................... INTERVENING PARTY
________________________________________________________________
JUDGMENT
Delivered
on
1
st
SEPTEMBER 2008
________________________________________________________________
SWAIN, J.
[1]
The present dispute arose in the context of the political battle
between the Democratic Alliance (DA) and the African National
Congress (ANC) for control of the City of Cape Town, the council of
which is currently led by a coalition of
the DA, together with other political parties, which was previously
controlled by the ANC.
[2] The applicant is the
City of Cape Town (the City) the executive Mayor of which is M/s
Helen Zille, a member of the DA and its
national leader.
2.1
The first respondent is the Premier of the Western Cape, Mr. Ebrahim
Rasool (the Premier) and the second respondent is the Minister
for
Local Government and Housing in the Provincial Government of the
Western Cape Mr. Qubudile Dyanatyi (the MEC). The Western
Cape
Provincial Government is controlled by the ANC which currently has a
majority in the Western Cape Provincial Legislature.
The Premier and
the MEC are members of the ANC.
2.2
The third respondent is the Honourable Mr. Justice Nathan Erasmus, a
Judge of the Cape Provincial Division of the High Court
of South
Africa, in his capacity as the Chairperson of the Commissions of
Inquiry to be referred to hereunder.
2.3
The fourth and fifth respondents are the other two members of the
said Commissions, namely Mr. George Papadakis, a forensic
accountant
and M/s Herdie Vermeulen, an attorney.
2.4
No relief is sought against the third, fourth and fifth respondents.
[3] The spark which
ignited the inferno between these political protagonists was the
conduct of an individual by the name of Badih
Chaaban, a councillor
on the council of the City, and a member of the Africa Muslim Party
which was originally part of the DA led
coalition governing the City
until January 2007, when his party was dismissed from the coalition.
The Speaker of the
council of the City, Mr. Jacob Smit, as well as Mr. James Selfe, a DA
member of Parliament and the Chairperson
of its Federal Executive,
were informed that Chaaban was allegedly approaching coalition
councillors with offers of bribes to change
political allegiance in
the run up to the so-called "floor-crossing" window period
between 01 to 15 September 2008. During
this period councillors were
entitled to change party membership and continue to hold their seat
on the council as representatives
of their new party, as provided for
in Schedule 6B to the Constitution. It was feared that the object of
his conduct was to topple
the coalition by such unlawful means.
[4] The City therefore
engaged the services of a firm of private investigators, George Fivaz
& Associates (GFA), to investigate
the conduct of Mr. Chaaban.
The investigation spanned the period June to September 2007 and
culminated in a finding by the disciplinary
committee of the City on
19 October 2007 that Chaaban was guilty on six counts of misconduct.
The council of the City decided on
31 October 2007, in terms of
Clause 14 (2) (e) of the Code of Conduct for Councillors (Schedule 1
to the Municipal Systems Act
No. 32 of 2000 "The Systems Act")
that the MEC be requested to remove Chaaban from office.
[5]
The lawfulness of the conduct of the City in investigating Chaaban
and hiring a firm of private investigators to do so attracted
the
attention of both the MEC and the Premier. Their response was as
follows:
5.1 On 27 November 2007
the MEC established an investigation in terms of Section 106 (1) (b)
of the Systems Act with the third,
fourth and fifth respondents as
investigators.
5.2.
The Premier by way of a proclamation on 04 December 2007 established
a commission of enquiry into "Possible Occurrences
of
Maladministration, Corruption, Fraud or other Serious Malpractice in
the City" with the third respondent as the Chairperson,
and the
fourth and fifth respondents as commissioners (the First Erasmus
Commission).
[6]
The Premier repealed the proclamation establishing the First Erasmus
Commission by way of a proclamation on 19 March 2008, and
established
a new commission into "Possible Occurrences of Fraud,
Corruption, Maladministration, Serious Malpractice and other
unlawful
conduct in the City and George Municipality ", again with the
third respondent as its Chairperson and the fourth
and fifth
respondents as commissioners (the Second Erasmus Commission).
The proclamation also
provided that the First Erasmus Commission "shall be deemed to
have been established in terms of this
proclamation and everything
done by that commission or under its auspices shall be deemed to have
been done in accordance with
this proclamation….".
[7] The City, initially
alone, and thereafter joined by the DA, as an intervening party,
whose intervention was not opposed by the
respondents, seek orders
declaring the decision taken by the MEC to establish an investigation
under Section 106 (1) (b) of the
Systems Act, as well as the
decisions of the Premier to establish the First and Second Erasmus
Commissions, as being inconsistent
with the Constitution and invalid.
The City, apparently due to an oversight, did not initially attack
the decision of the MEC but
thereafter sought to do so by way of an
amendment to the relief sought, which was granted without opposition.
The challenges raised
in terms of the
Intergovernmental Relations Framework Act No 13 of
2005
[8] Before dealing with
the substantive challenges raised in respect of the first and second
Erasmus Commissions, it is necessary
to deal with what may loosely be
referred to as "procedural challenges", raised by
8.1 The MEC and Premier
in respect of the launch of the present proceedings by the City and
by
8.2 The City in respect
of the establishment of the Second Erasmus Commission by the Premier.
[9] The MEC and the
Premier submit that the City acted prematurely by instituting the
present legal proceedings, in a manner which
was inconsistent with
the Constitution and the provisions of the Intergovernmental
Relations Framework Act No. 13 of 2005 (the
Framework Act).
[10] The Framework Act
was enacted to fulfil the requirements of Section 41 (2) of the
Constitution, which provides that an Act
of Parliament must
establish, or provide for, structures and institutions to promote and
facilitate intergovernmental relations,
and provide for appropriate
mechanisms and procedures to facilitate settlement of
intergovernmental disputes. It is clear that
Section 41 of the
Constitution, seeks to promote co-operative government and
inter-governmental relations, between the different
spheres of
government which are defined in Section 40 of the Constitution, as
the national, provincial and local spheres which
are "distinctive,
inter-dependent and inter-related".
[11] Section 41 (3) of
the Constitution, provides that an organ of state involved in an
intergovernmental dispute, must make every
reasonable effort to
settle the dispute by means of mechanisms and procedures provided for
that purpose, and must exhaust all other
remedies, before it
approaches a court to resolve the dispute.
Section 41 (4) of the
Constitution, then provides that if a court is not satisfied that the
requirements of sub-section (3) have
been met, it may refer a dispute
back to the organs of state involved.
[12] The MEC and the
Premier rely upon the provisions of Section 45 of the Framework Act,
which provides that no government or organ
of state, may institute
judicial proceedings in order to settle an intergovernmental dispute,
unless the dispute has been declared
a formal intergovernmental
dispute in terms of Section 41, and all efforts to settle the dispute
in terms of this chapter were
unsuccessful.
[13] In terms of Section
40 (1) (b) of the Framework Act, all organs of state must make every
reasonable effort to settle intergovernmental
disputes without
resorting to judicial proceedings.
[14] It is common cause
that the dispute between the City on the one hand and the Premier and
MEC on the other hand, as to the lawfulness
of the establishment of
the Second Erasmus Commission, constitutes an intergovernmental
dispute, as defined in the Framework Act
and that the City did not
take all of the steps provided for in the Framework Act, to settle
the dispute before launching the present
proceedings.
[15] Mr. Heunis, S.C.,
who appeared for the Premier and the MEC, together with Mr. Arendse,
S.C., M/s Bawa and Mr. Borgström,
submitted that the provisions
of the Framework Act and the Constitution in this regard were
peremptory, and this Court did not
have the power to condone
non-compliance with Section 45 (1) of the Framework Act, with the
result that the City contravened both
its lawful obligations under
the Constitution as well as the Framework Act.
Mr. Heunis submits that
the discretion afforded to a court in terms of Section 41 (4) of the
Constitution to refer a dispute back
to the organs of state involved,
only arises where there has been compliance with the Framework Act,
but the Court is of the view
that further negotiation is required
between the warring parties.
[16] The argument
advanced in reply by Mr. Rogers, S.C. who appeared for the City,
together with Mr. Binns-Ward, S.C. and M/s Mayosi
was as follows:
16.1 It is not suggested
that Section 41 (3) of the Constitution is not peremptory, nor that
compliance with the Framework Act is
unimportant.
16.2 Section 41 (3) of
the Constitution only obliges an organ of state to make "every
reasonable effort" to settle intergovernmental
disputes by means
of the mechanisms and procedures provided for that purpose, i.e. in
the Framework Act.
16.3 Section 41 (4) of
the Constitution is cast in discretionary terms. If a court is not
satisfied that the requirements of Section
41 (3) have been met, the
court "may" refer the dispute back to the organs of state.
The necessary implication being
that the court could on the other
hand determine the dispute.
16.4 Section 45 (1) of
the Framework Act, remains subject to Sections 41 (3) and (4) of the
Constitution. If in all the circumstances
of the case, it could not
reasonably have been expected of the City to follow some, or any of
the procedures of the Framework Act,
Section 41 (3) of the
Constitution is satisfied, and in terms of Section 41 (4) the court
would not be entitled to decline to entertain
the case.
[17] The provisions of
the Framework Act must be construed consistently with the
Constitution. Consequently, although Section 45
(1) of the Framework
Act, is couched in peremptory language it has to be read consistently
with the provisions of Section 41 (3)
and (4) of the Constitution.
To disregard the
provisions of Section 41 (4) of the Constitution, which vests in a
court a discretion to hear a matter, even if
not satisfied that the
parties have made every reasonable effort to settle the dispute,
would run counter to the provisions of
Section 34 of the
Constitution, which guarantees the right of the individual to have
any dispute resolved by the application of
law, decided in a fair
public hearing before a court.
A limitation of this
right by the provisions of Section 45 (1) of the Framework Act, would
not be reasonable and justifiable in
terms of Section36 (1) of the
Constitution.
[18] In my view, Section
45 (1) of the Framework Act is therefore reasonably capable of being
read in conformity with the provisions
of
Sections 41 (3) and (4)
of the Constitution, without such an interpretation being unduly
strained.
Investigating
Directorate: Serious Economic Offences& others
v
Hyundai Motor
Distributors (Pty) Limited & others
[2000] ZACC 12
;
2001
(1) SA 545
(CC) at 559, paragraphs 23 and 24
In my view, the
discretion vested in a court by Section 41 (4) of the Constitution,
is not limited in the way contended for by Mr.
Heunis. What would the
point be in vesting in a court a discretion to decline to hear a
dispute, where it was clear that every
reasonable effort had been
made, albeit unsuccessfully, by the parties to settle it?
[19] What are the
relevant facts which this Court must consider in exercising its
discretion?
The City, represented
by the Mayor, questioned the lawfulness of the conduct of the MEC
in instituting an investigation in terms
of Section 106 (1) (b) of
the Systems Act, and the decision of the Premier to appoint the
First Erasmus Commission. This was
done at a meeting between the
Mayor and the Premier held on 06 February 2008, at which the Mayor
declared that the meeting
was a formal contact in terms of Section
41 of the Constitution and the Framework Act.
Section 41 (2) provides
that before declaring a formal intergovernmental dispute the organ of
state in question must, in good faith,
make every reasonable effort
to settle the dispute, including the initiation of direct
negotiations with the other party. Mr. Rogers
submits that this was
what the Mayor was attempting to do at this meeting.
19.2 At this meeting the
Mayor advised the Premier that if the proceedings of the First
Erasmus Commission, were not stopped and
she was advised by no later
than 10 February 2008 that this would happen, she would approach the
High Court for urgent relief.
19.3 This was followed by
a letter dated 07 February 2008, which advised that the City had
obtained advice from Senior Counsel that
the establishment of the
First Erasmus Commission, as well as the investigation in terms of
Section 106 (1) (b) of the Systems
Act, were unlawful.
19.4 The Premier then
agreed to suspend the hearings of the First Erasmus Commission, until
he was satisfied as to the lawfulness
of the First Erasmus
Commission. The MEC responded to the Mayor's letter, indicating that
although he supported the suspension
of the hearings, he perceived
the conduct of the Mayor "as a blunt attempt to avoid further
investigation into a matter of
considerable seriousness for your own
(political) motives".
19.5 The City then
supplied the Premier with a copy of the papers drafted to challenge
the lawfulness of the Commission and the
investigation.
19.6 The Premier then
indicated to the Mayor that he would obtain a preliminary evaluation
of the evidence collected for the purposes
of the First Erasmus
Commission from the evidence leader, to decide whether proceeding
with the Commission would be "an exercise
in futility". If
it was, he "would be inclined to abandon the Commission".
19.7 By proclamation
dated 19 March 2008 the Second Erasmus Commission was established and
the Premier had the following to say
in his media statement "Clearly
the Mayor of Cape Town is desperate that this Commission should not
do its work. Our normally
fearless Mayor is suddenly wanting to stop
the Commission in its entirety".
As with many of the media
statements issued by the main political protagonists during the
course of this controversy, due allowance
must be made for what can
only be termed "political rhetoric".
19.8 On 08 April 2008 the
present application was launched on the eve of the Second Erasmus
Commission commencing its hearings.
[20] Mr. Heunis submits
that it is quite clear that the City did not comply with the
requirements of the Framework Act, nor Section
41 of the
Constitution, as there was no contact by the City with either the
Premier, or the MEC, before it launched the present
proceedings.
[21] The answer of Mr.
Rogers is that on the particular facts of this case, it was not
reasonable to expect the City to have complied
with the Framework Act
for the following reasons:
21.1 The procedures
contemplated in the Framework Act for dispute resolution are time
consuming.
21.2 The Premier was most
unlikely to abandon his course of conduct in relation to the Second
Erasmus Commission, as he had established
it in the face of a
threatened challenge to the First Erasmus Commission, a challenge
based
inter alia,
on disclosed grounds which remained
applicable to the Second Erasmus Commission.
21.3 The proceedings of
the Second Erasmus Commission were intended to resume without delay
and it was to report to the Premier
by 30 June 2008 and the City
would have been denied effective redress, if it held back on legal
proceedings while following the
framework processes.
21.4
The prospects of the Premier agreeing to a further deferment of the
Erasmus Commission proceedings were remote.
[22] The Premier and the
MEC argue that these submissions constitute assumptions on the part
of the City as to how they would react.
The fact remains however,
that despite the City furnishing to the MEC and the Premier, details
of the legal grounds upon which
the lawfulness of the Section 106 (1)
(b) investigation and the First Erasmus Commission were challenged,
in the form of the draft
application papers, there was no attempt by
the Premier to meet with the City before establishing the Second
Erasmus Commission,
to discuss any grievances the City may still hold
in that regard.
22.1 In addition there
was no attempt by the Premier to obtain additional information from
the City, as to any of the concerns he
may have held. As will become
apparent later in this Judgment, this aspect is of importance in
regard to a substantive challenge
raised in relation to the
lawfulness of the establishment of the Second Erasmus Commission.
[23] In my view, it would
have been reasonable to expect the Premier to meet with the City, in
an attempt to reduce the possibility
of the conflict continuing. The
fact that he did not and established the
Second
Erasmus Commission, without further reference to the City, lends
credence to the City's contentions.
[24] I am of the view
that in all of these circumstances, the City could not reasonably
have been expected to take the steps envisaged
in the Framework Act,
before instituting the present proceedings. In the result, this Court
has the power to entertain these proceedings
in terms of Section 41
(4) of the Constitution.
[25] Turning to the
challenge raised by the City that the conduct of the Premier in
establishing the Second Erasmus Commission,
was clearly calculated to
give rise to a dispute. This conduct was contrary to the provisions
of Section 40 (1) (a) of the Framework
Act in terms of which the
Premier was obliged to make every reasonable effort to avoid such a
dispute. In failing to do so, he
acted unlawfully, as compliance with
Section 40 (1) (a) is a jurisdictional prerequisite for the exercise
by organs of state of
their powers when these impact on other organs
of state. As a consequence his establishment of the Second Erasmus
Commission was
unlawful.
[26] Mr. Heunis submits
that the challenge is really that the Premier should have known as a
matter of fact when he established
the Second Erasmus Commission,
that a further dispute was inevitable, and he should have
pre-emptively avoided that result.
[27] The Premier however
states in his answering affidavit that he believed the Mayor and the
City would co-operate with the establishment
of the Second Erasmus
Commission, he was surprised at the Mayor's response, and believed
the Mayor would be "pleased"
at the widening of the
Commission's term of reference, to include Chaaban's conduct.
[28] Mr. Rogers submits
that the objective facts show that he could not conceivably have held
such a belief, by reference
inter alia,
to the media statement
of the Premier referred to above.
[29] Although it would
have been reasonable for the Premier to meet with the representatives
of the City to discuss any grievances,
the City may still have held
in regard to the establishment of a further Commission, this does not
mean that the Premier's failure
to do so, constitutes a breach of the
provisions of Section 40 (1) (a) of the Framework Act.
Section 40 (1) (a)
requires "every reasonable effort….to avoid
intergovernmental disputes". Although a meeting
with the
representatives of the City would constitute "a reasonable
effort" to avoid a dispute, it would still have to
be proved
that the Premier appreciated that the establishment of the Second
Erasmus Commission would give rise to a dispute with
the City.
[30] In the face of the
Premier's statements of the belief he held as to the attitude of the
Mayor and the City to the establishment
of the Second Erasmus
Commission, due regard being had to the said media statement, I
cannot, on these papers, reject the Premier's
assertion as "far
fetched or clearly untenable"
Plascon Evans
Paints Ltd. v van Riebeek Paints (Pty) Ltd.
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
at 635 C
[31] The establishment of
the Second Erasmus Commission by the Premier was consequently not
rendered unlawful, as a consequence
of the alleged failure on his
part to comply with the provisions of Section 40 (1) (a) of the
Framework Act.
The substantive
challenges raised as to the lawfulness of the MEC’s decision in
terms of section 106(1)(b) of the Systems
Act to establish an
investigation and the Premier’s decision to establish the First
and Second Erasmus Commissions
[32] Turning now to deal
with the substantive challenges to the lawfulness of the MEC's
decision, in terms of Section 106 (1) (b)
of the Systems Act to
establish an investigation, as well as the Premier's decisions to
establish the First and thereafter the
Second Erasmus Commissions.
[33] By way of
Proclamation No. 4 of 2008 dated 19 March 2008, the Premier repealed
Proclamation No. 18 of 2007 dated 04 December
2007, which established
the First Erasmus Commission. On the same date in terms of
Proclamation No. 5 of 2008, the Premier established
the Second
Erasmus Commission. The validity of Proclamation No. 4 of 2008 is not
challenged.
[34] The First Erasmus
Commission was therefore dissolved and ceased to have any legal
existence, on the same date that the Second
Erasmus Commission was
established. As regards the investigation established by the MEC,
although there is no mention in the papers
that the MEC took any
administrative steps to dissolve the investigation, it is clear it
must have suffered the same fate as the
First Erasmus Commission, for
the following reasons:
34.1 The MEC, in his
notice dated 27 November 2007 to the Mayor, stated that he had
decided to proceed with an investigation in
terms of Section 106 (1)
(b) of the Systems Act and "was in the process of designating
persons as members of the commission".
34.2
In the media statement released by the MEC dated 27 November 2007, he
states that:
"The Section 106
investigation will take the form of a commission, which will be
appointed by the Premier in terms of the Western
Cape Provincial
Commissions Act".
34.3 In Proclamation No.
18 of 2007 dated 04 December 2007, establishing the First Erasmus
Commission, the Premier referred to the
fact that the MEC had
"designated the persons listed hereunder to conduct an
investigation in terms of Section 106 (1) (b)
……"
of the Systems Act and that the "investigation will be conducted
in terms of the said Act" and
then appointed the third, fourth
and fifth respondents as members of "this commission"
acting in terms of Section 1 of
the Western Cape Provincial
Commissions Act No. 10 of 1998.
34.4 The Second Erasmus
Commission comprised the same commissioners with the same terms of
reference, albeit with additions.
34.5 Mr. Heunis submitted
that the MEC's investigation under Section 106 (1) (b) was superseded
and replaced by the First Erasmus
Commission.
[35]
The City and the DA both seek orders declaring that the decisions of
the MEC and the Premier, respectively establishing the
Section 106
investigation and the First Erasmus Commission, are inconsistent with
the Constitution and invalid. In the alternative,
orders are sought
reviewing and setting aside these decisions.
The reasons advanced for
this are that the Premier's proclamations of 19 March 2008 are
premised on the validity of the First Erasmus
Commission, i.e.
disestablishment presupposes prior lawful establishment. In addition,
the new proclamation makes provision for
the actions of the First
Commission to be deemed to have been done in accordance with the
proclamation of the 19 March 2008, and
the lawfulness of the First
Commission is relevant to this deeming provision.
[36] The Premier and the
MEC in terms of a conditional counter-application, seek an order
declaring that the First Erasmus Commission
was lawfully established,
in the event that an order is granted in favour of the City declaring
unlawful, or setting aside, the
establishment of the Second Erasmus
Commission.
[37] The power of this
Court to grant in its discretion a declaratory order lies in the
provisions of Section 19 (1) (a) (iii) of
the Supreme Court Act No.
59 of 1959. This Section provides that a division of the
High
Court, may in its discretion and at the instance of any interested
person, enquire into, and determine any existing, future,
or
contingent right or obligation, notwithstanding that such person
cannot claim relief consequent upon the determination.
[38]
In the exercise of its discretion, the court may decline to deal with
a matter where there is no actual dispute. This does
not mean that
there must be a dispute before a court will exercise its discretion,
but it is essential that there be an interested
party upon whom the
declaration will be binding.
Ex Parte Nell
1963
(1) SA 754
(A) at 759 H - 760 C
[39] The declaration must
relate to a right or obligation which can be existing,
in futuro
or contingent. The word "contingent" is used in the sense
of "not vested".
Lawson & Kirk
(Pty) Ltd. v Phil Morkel Ltd.
1953 (3) SA 324
(A)
[40] Any right on the
part of the City and the DA, to challenge the validity of the
provision in the new proclamation deeming the
actions of the First
Commission, to have been done in accordance with such
proclamation, does not in
my view, for reasons I will set out below, depend for its resolution
upon a determination of whether the
First Commission was lawfully
established, or not.
40.1 In addition I do not
agree that disestablishment of the First Commission, presupposes its
prior lawful establishment. The lawfulness
of the establishment of
the First Erasmus Commission, is not a prerequisite to the validity
or lawfulness of its disestablishment,
particularly where the
validity of the proclamation which disestablished it, is not
challenged.
[41] Any contingent right
on the part of the Premier and the MEC, to declare the establishment
of the First Erasmus Commission valid,
depends upon the outcome of
the challenge made to the establishment of the Second Erasmus
Commission.
[42] In the light of the
conclusion I have reached as to the validity of the Second Erasmus
Commission and the ground for that conclusion,
I do not agree with
the submission of Mr. Heunis, that a legitimate objective of the
conditional counter-application to declare
the First Erasmus
Commission lawful, would be to enable the Premier to "reactivate"
the First Erasmus Commission and
thereby prevent further litigation.
I agree with the answer
of Mr. Rogers that the MEC would have to take a fresh decision in
terms of Section 106 (1) (b), and the
Premier would have to take a
fresh decision to establish a new commission, on the facts known to
them at that time. The facts disclosed
in this application, as well
as our conclusion in regard to the validity of the Second Erasmus
Commission and our reasons for that
conclusion, would have to be
considered by both of them before taking any decision.
[43] Consequently, in my
view, this Court, for the above reasons, should not in the exercise
of its discretion, entertain the respective
claims of the parties to
determine the lawfulness, or otherwise, of the First Erasmus
Commission, on the ground that there is no
actual, or live dispute,
before us in this regard.
[44] A determination of
the validity of the following provision contained in Proclamation No.
5 of 2008, which established the Second
Erasmus Commission. "The
Commission of Inquiry established by Proclamation 18 of 2007
published in the Provincial Gazette
6485 on 04 December 2007, which
was repealed by Proclamation 4/2008, shall be deemed to have been
established in terms of this
Proclamation and everything done by that
Commission or under its auspices shall be deemed to have been done in
accordance with
this Proclamation" does not depend upon a
determination
of the validity of the
First Erasmus Commission, for the following reasons:
There is a strong
presumption in South African law that legislation is not intended
to operate with retrospective effect, or
in such a manner as to
interfere with existing rights and liberties. This presumption
applies equally to legislation that authorises
administrative
action
Baxter –
Administrative Law – page 355
44.2 The Premier’s
authority to establish commissions of inquiry is found in Section 127
(2) (a) of the Constitution and Section
1 (1) (a) of the Western Cape
Provincial Commissions Act 10 of 1998. No authority is granted to the
Premier in either the Constitution
or the Act, to establish a
commission of inquiry with retrospective effect.
44.3 In repealing the
proclamation which established the First Erasmus Commission, by means
of Proclamation No. 4 of 2008, and on
the same date by way of
Proclamation No. 5 of 2008, establishing the Second Erasmus
Commission, which deemed the First Erasmus
Commission to have been
established in terms of Proclamation No. 5 of 2008, the Premier
clearly purported to re-establish the First
Erasmus Commission with
retrospective effect. This the Premier was clearly not entitled to
do.
44.4 As regards the
declaration that “everything done by that Commission or under
is auspices shall be deemed to have been
done in accordance with this
proclamation”. In the light of the conclusion that the First
Erasmus Commission could not validly
be re-established by
Proclamation No. 5 of 2008, I find it difficult to see how such a
declaration can possess a validity independently
of the First Erasmus
Commission itself.
44.5 In any event, in the
context of the challenge raised by the City at the time, that the
First Erasmus Commission was unlawful,
it is clear that the object of
the declaration was to alter, with retrospective effect, rights which
arose as a consequence of
the establishment of the First Erasmus
Commission. Express, or clearly implied authority, is necessary if a
public authority wishes
to take action which alters legal relations
with retrospective effect.
Baxter supra at
page 355.
It
is clear that such authority was not possessed by the Premier.
[45] In purporting to do
so, the Premier acted
ultra vires
his powers, with the result
that such declarations fall to be set aside. However the nature of
the evidence relied upon by the Premier
in establishing the First
Erasmus Commission, its reconsideration by the Premier in
establishing the Second Erasmus Commission,
and its relevance to the
challenge raised in respect of the Second Erasmus Commission will be
considered later in this Judgment.
[46]
Turning to the challenges mounted by the City and the DA against the
lawfulness of the Second Erasmus Commission, they are
as follows:
46.1 The Premier does not
possess an independent power to appoint a commission to investigate
the affairs of a municipality. His
power is restricted to the
appointment of a commission in terms of Section 106 (2) of the
Systems Act, as an adjunct to the appointment
of investigators by the
MEC in terms of Section 106 (1) (b) of the Systems Act.
46.2 The Premier's
decision to appoint the Second Erasmus Commission is vitiated on the
constitutional principle of legality, as
a result of bad faith and an
ulterior motive on the part of the Premier. It is alleged that the
Premier did not hold the honest
belief that a commission was
warranted for any lawful purpose, and his intention was to use the
commission for the ulterior and
improper purpose of attempting to
embarrass, or discredit, political opponents.
46.3
The appointment of Judge Erasmus, as a serving Judge, to chair the
Second Erasmus Commission was incompatible with the separation
of
powers ordained in the Constitution and therefore unlawful and
invalid.
Does the Premier
possess a power to appoint a commission to investigate the affairs of
a municipality independently of the provisions
of section 106(2) of
the Systems Act?
[47] Dealing firstly with
the Premier's power to appoint a commission to investigate the
affairs of a municipality. The issue is
whether the Premier's only
power is that contemplated in Section 106 (2) of the Systems Act, as
contended for by the City and the
DA, or whether the Premier's power
is "untrammelled" as contended for by the Premier and the
MEC.
Should
the power of the Premier be limited in such a manner, then the
Premier would not have possessed the power to appoint the
Second
Erasmus Commission, as he did not act in terms of Section 106 (2) of
the Systems Act when doing so. In such event the Second
Erasmus
Commission falls to be set aside as unlawful.
[48] The countervailing
arguments advanced before us in this regard are comprehensive and
detailed. Consequently, a proper resolution
of this issue requires
that they be fully set out in this Judgment to facilitate their
proper consideration. The argument advanced
by the City and the DA is
as follows:
48.1 The Constitution
establishes and recognizes differing spheres of responsibility for
national, provincial and local government.
A province has the duty in
terms of Chapter 3 of the Constitution to:
48.1.1 Respect the
status, powers and functions of local government (Section 41 (1)
(e)).
48.1.2 Not to assume any
powers or functions except those conferred by the Constitution
(Section 41(1) (f)).
48.1.3 To exercise its
functions in such a manner as not to encroach on the functional or
institutional integrity of local government
(Section 41 (1) (g)).
48.1.4 To co-operate with
local government institutions in mutual trust and good faith (Section
41 (1) (h)).
48.2 These duties are
reinforced by Section 3 of the Systems Act which states that the
provincial government must exercise its executive
and legislative
activities in a manner that does not compromise or impede a
municipality's ability, or right to exercise its executive
and
legislative authority. In terms of Section 52 (1) of the Constitution
of the Western Cape No. 1 of 1998, the ability or right
of a
municipality to exercise its powers, or perform its functions, may
not be compromised, or impeded.
48.3
The very different nature of local government in the new
constitutional order was recognised by the Constitutional Court in
the case of
City of Cape Town &
another v Robertson & another
[2004] ZACC 21
;
2005 (2) SA 323
(CC) at paragraphs 53 - 60
where it was noted that
municipalities previously were creatures of statute and enjoyed only
delegated or subordinate legislative
powers, derived exclusively from
ordinances or Acts of Parliament.
In the new constitutional
era local government exercises original powers under the Constitution
which includes original legislation
and executive authority. The
Constitution expressly precludes the national or provincial
government, from impeding the proper exercise
of powers and functions
of municipalities. A municipality has the right to govern the local
government affairs of its area and
community.
48.4 The executive
authority of provinces is set out in Section 125 of the Constitution.
One of these powers is to perform any other
function assigned to the
provincial executive, in terms of the Constitution or national
legislation. (Section 125 (2) (g)). The
assignment of functions to
provinces in respect of local government in accordance with this
section is found in Section 139 which
is headed "Provincial
Intervention in local government".
48.5 Section 139
authorises intervention where a municipality cannot, or does not
fulfil an executive obligation in terms of the
Constitution or
legislation (Section 139 (1)) or cannot or does not fulfil an
obligation in terms of the Constitution or legislation,
to approve a
budget or other necessary revenue-raising measures (Section 139 (4))
or is, as a result of a financial crisis, in
serious and persistent
breach of its obligation to provide basic services, or to meet its
financial obligations (Section 139 (5)).
48.6 The Constitutional
Court in
Ex
Parte Chairperson of the Constitutional Assembly: In re Certification
of the Constitution of the Republic of South Africa
[1996] ZACC 26
;
1996
1996
(4) SA 744
(CC) at paragraph 370
(the
Certification Judgment)
stated that the
provincial "supervisory" function in respect of local
government was "fully captured" in Section
139.
48.7 In terms of Section
151 (3) of the Constitution a municipality has the right to govern,
on its own initiative, the local government
affairs of its community,
subject to national and provincial legislation. In terms of Section
151 (4) the national and provincial
government may not compromise, or
impede the municipality's ability, or right to exercise its powers,
or perform its functions.
It is submitted that the Erasmus Commission
will impede the City's ability or rights in this regard as senior
officials will be
taken away from their municipal duties.
48.8 In terms of Section
155 (6) (a) of the Constitution provinces must "by legislative
or other measures" provide for
the monitoring and support of
local government. Sections 105 and 106 of the Systems Act, are aimed
at facilitating such monitoring
inter alia
, with a view to
assessing possible intervention under Section 139 of the
Constitution. It is submitted that the Erasmus Commission
cannot be
justified as part of the Western Cape Provincial Government "support"
and "monitoring" function in
terms of this Section for the
following reasons:
48.8.1 What the
provincial government must do is to make provision for monitoring and
support, such provision to be contained in
"legislative or other
measures". The establishment by proclamation of an
ad hoc
commission of enquiry to investigate specific matters in a particular
municipality is not a "legislative or other measure"
contemplated in Section 155 (6) (a). The proclamation establishing
such a commission is not an enactment or measure providing for
the
monitoring or support of local government in the province.
48.8.2 What the
legislature had in mind is reflected in Section 105 (1) of the
Systems Act, which states that the MEC for local
government, being
the representative of the executive component of the provincial
government in relation to local government matters,
must establish
"mechanisms, processes and procedures in terms of Section 155
(6) of the Constitution" for monitoring
municipalities. It is
submitted that what is envisaged are measures of general application
which make provision for ongoing monitoring
of municipal performance
in the province.
48.8.3 The MEC, when
exercising powers in terms of Section 105 (3) may make reasonable
requests to municipalities for additional
information, after taking
into account
inter alia
the administrative burden on
municipalities to furnish the information and the cost involved. It
is submitted that this shows the
process of monitoring was intended
to be as non-intrusive as reasonably possible.
48.8.4 The power of
"monitoring" was said by the Constitutional Court in the
First Certification case
supra
at paragraph 372, to be
antecedent to "support" and "supervision" and was
stated to correspond with "observe"
or "to keep under
review". The monitoring power was said not to be a substantial
power in itself which did not bestow
additional or residual powers of
provincial intrusion "beyond perhaps the power to measure or
test at intervals [local government]
compliance with national and
provincial legislative directives or with the [constitution] itself"
(paragraph 373). The Constitutional
Court referred to the lawmakers
concern for the autonomy and integrity of local government and the
mandating of a "hands-off
relationship" as between the
province and the municipalities in its area.
48.9 It is submitted that
the establishment by the Premier of an
ad hoc
commission to
investigate specific acts in a particular municipality, is neither an
act of monitoring by the "provincial government"
nor is it
a legislative or other measure which itself makes provision for
monitoring, nor is it the sort of "observation"
and
non-intrusive form of monitoring as referred to in the First
Certification case.
48.10 In addition, the
power of the provincial government in terms of Section 155 (7) of the
Constitution to "see to the effective
performance" by
municipalities of their functions, has to be exercised in a specific
way "by regulating the exercise
by municipalities of their
executive authority referred to in Section 156 (1)". Again it is
submitted that the establishment
of an
ad hoc
commission into
specific conduct at a particular municipality is not an act whereby
the Premier "regulates" the exercise
by municipalities of
their executive authority. Regulation
is forward-looking and
does not include an investigation into past suspected misconduct.
48.11 As regards Section
154 (1) of the Constitution which provides that the national
government and provincial government must
by legislative and other
measures support and strengthen the capacity of municipalities to
manage their own affairs, exercise their
powers and perform their
functions, it is submitted that the establishment of a provincial
commission is neither a legislative
or other measure, by which the
capacity of municipalities to achieve these objectives is supported
and strengthened.
48.12 It is submitted
that what Sections 154 (1), 155 (6) and 155 (7) have in mind is
legislation or measures of general application,
forward-looking, by
which municipalities in general in the province may be supported and
strengthened. They do not contemplate
ad hoc
enquiries into
specific past events at a single municipality.
48.13 As regards Section
106 (1) (b) of the Systems Act, the MEC is only entitled to appoint
investigators if he has a reasonable
belief of suspected misconduct
of the requisite severity, coupled with a genuine belief that the
appointment of investigators is
necessary.
48.14 The question of
whether there was reason to believe has to be assessed objectively
and the MEC's belief has to be rational
or reasonable. The term
"serious malpractice" must be interpreted in the light of
the preceding words "maladministration,
fraud, corruption".
This means wrongdoing of some severity which typically connotes
dishonesty, impropriety, and perhaps breach
of a fiduciary duty.
Democratic Alliance
Western Cape & Others v Minister of Local Government Western
Cape & Others
2005 (3) SA 576
(C)
48.15 It is submitted
that the restrictions imposed upon the MEC by Section 106 (1) are
consistent with the constitutional autonomy
of municipalities. An
enquiry into a municipality's affairs by investigators enjoying
commission powers is a potentially serious
invasion of the
municipality's constitutional autonomy.
The appointment of
investigators may create intergovernmental conflict as in the present
case. The Legislature did not intend the
MEC to have a free hand. He
should be entitled to investigate only in cases of serious misconduct
and on objectively reasonable
grounds.
48.16 The obligation
imposed on the MEC by Section 106 (3) to submit a written statement
to the National Council of Provinces, motivating
his action, is an
indication of the serious light in which the legislature viewed such
intervention by the MEC and its desire to
subject his actions to a
measure of hierarchical scrutiny and oversight.
48.17 Where the MEC has
validly appointed investigators under Section 106 (1) (b), the
investigators can then be constituted as
a commission under Section
106 (2). This contemplates and requires a decision by the Premier to
appoint the investigators as a
commission.
Minister of Local
Government, Housing and Traditional Affairs (KwaZulu Natal) v Umlambo
Trading 29 CC and others
2008 (1) SA 396
(SCA)
48.18 It is submitted
that Section 106 (2) as interpreted in Umlambo's case
supra,
is the source of a Premier's power to invoke provincial commissions'
legislation to establish a commission to enquire into municipal
affairs. But for Section 106 (2) the use of the commission-
appointing power for that purpose would offend the constitutional
autonomy of the municipality.
48.19 The contention of
the Premier and the MEC that no commission appointing power is to be
found in Section 106 (2) and that Umlambo's
case
supra
held
that Section 106 (2) does not apply when provincial commission
legislation exists is disputed on the following grounds:
48.19.1 All that was held
in Umlambo's case was that the "applicable provincial
legislation" in Section 106 (2) is provincial
commission
legislation and where there is provincial commission legislation the
same applies without the modification implied by
the words "with
the necessary changes as the context may require".
48.19.2 It is implicit in
Section 106 (2) that when investigators have been appointed under
Section 106 (1) (b) they may, in terms
of Section 106 (2) be vested
with commission's powers under provincial commissions' legislation
(if any) or under national legislation.
48.19.3 It is a necessary
implication in Section 106 (2) as interpreted in Umlambo's case, that
the Premier has the power to use
provincial commissions legislation,
to constitute investigators appointed by the MEC under Section 106
(b) as a commission of enquiry.
Section 106 (2) sanctions the use of
the provincial commissions legislation, for a purpose which would not
outside of the confines
of Section 106 (2) be lawful and
constitutional.
48.19.4 The Court in
Umlambo's case was not required to consider a case where the
commission appointing power was exercised independently
of a Section
106 decision by the MEC. Umlambo's case was the converse. A Section
106 decision had been taken by the MEC without
an accompanying
decision by the Premier to appoint the investigators as
commissioners.
48.20 If the Premier
possessed an independent power to appoint a commission to enquire
into a municipality's affairs, it would give
rise to an absurdity. In
such a case the MEC would never have to form the reasonable opinion
required by Section 106 (1) and his
involvement would be rendered
entirely unnecessary. The statutory requirements carefully formulated
in Section 106 (1) to limit
undue intrusion into municipal affairs
would become a dead letter. Whether the MEC had acted reasonably or
not, would be irrelevant
as the Premier would be entitled to say that
he enjoyed an independent power to appoint the commission, which was
not dependent
for its validity on anything done by the MEC.
48.21 In addition the
Legislature's intention that such intervention should be the subject
of a motivated report to the National
Council of Provinces would be
frustrated.
48.22 The submission by
the MEC and the Premier that the provisions of Section 106 (2) of the
Systems Act cannot be construed as
limiting the circumstances in
which the Premier can appoint commissions under Section 127 (2) (e)
of the Constitution, because
the Systems Act as national legislation
is subservient to the Constitution and must be interpreted in the
light of the Constitution
and not
vice versa
, is responded to
as follows:
48.22.1 Although all
legislation must be interpreted in the light of the Constitution, it
is equally true that provisions within
the Constitution must be
interpreted in the light of other provisions contained in the
Constitution. Such provisions include Chapter
3, dealing with
co-operative government and Chapter 7, dealing with local government.
These Chapters envisage a special role for
local government, and
contemplate national legislation to give effect to their provisions.
48.22.2 The Systems Act
is part of a suite of legislation giving effect,
inter alia
to
Chapter 7 of the Constitution.
Democratic Alliance
and Another v Masondo NO and another
[2002] ZACC 28
;
2003 (2) SA 413
(CC) paragraphs
12 and 59
The Systems Act is not
"ordinary legislation" but legislation specifically
authorised by the Constitution in order to
give effect to its
provisions.
48.22.3 Although Section
127 (2) (e) of the Constitution states that the Premier of a Province
has the "responsibility for
appointing provincial commissions",
there is no reason to suppose that the responsibility was intended by
the framers of the
Constitution to be untrammelled and incapable of
restriction by reference to other provisions of the Constitution and
by national
legislation, authorised by the Constitution. There was
therefore no reason why Section 106 of the Systems Act, should not be
construed
as confining the circumstances in which a provincial
commission can be appointed into municipal affairs. The alternative
is that
Section 106 of the Systems Act effectively becomes a dead
letter, which is not consistent with the Constitution.
48.22.4 In addition,
there is an important difference between the Premier's responsibility
under Section 127 (2) (e) of the Constitution
and the coercive powers
which he has to appoint commissions under the Western Cape
Commissions Act. The Premier's responsibility/power
under Section 127
(2) (e) of the Constitution, in the absence of provincial
legislation, would simply be a power to engage commissioners
to
advise him, as it is not accompanied by any coercive trappings. Such
commissioners would have no powers to
subpoena
witnesses,
compel the production of documents, nor would the Premier have any
power to make regulations regarding the commission.
48.22.5 The Western Cape
Commissions Act is the exclusive source of the Premier's power to
appoint coercive commissions. In the
present case, the Erasmus
Commission was established with coercive powers under the Western
Cape Commissions Act. It is such provincial
commissions legislation
which Section 106 of the Systems Act has in mind. When Section 106
was enacted, the Premiers of the provinces
already possessed their
commission-appointing responsibilities, under Section 127 (2) (e) of
the Constitution. Section 106 (2)
of the Systems Act was not
concerned with that pre-existing constitutional responsibility, but
with provincial commissions legislation,
which might or might not
exist.
48.22.6 Accordingly, the
question is not whether Section 106 of the Systems Act limits the
powers of the Premier under Section 127
(2) (e) of the Constitution ,
but whether it limits his right to invoke provincial commissions
legislation. The contest is not
between the Systems Act and the
Constitution, but between the Systems Act and provincial legislation.
The Systems Act is higher
in hierarchy and therefore prevails.
48.23 The City and the DA
therefore submit that for the above reasons the Premier did not have
the independent power to establish
the Second Erasmus Commission.
[49]
Turning to the countervailing argument of the Premier and the MEC.
49.1 A Premier's power to
appoint commissions of inquiry derives entirely from the Constitution
itself in the form of Section 127
(2).
49.2 The Premier's
authority to establish a commission is confirmed but not enhanced by
the fact that the Constitution of the Western
Cape No. 1 of 1998 also
provides that the Premier is responsible for "appointing
commissions of inquiry".
49.3 The Premier's
constitutional authority is also confirmed but not enhanced by the
Western Cape Commissions Act No. 10 of 1998
which provides that he or
she may, by proclamation, "appoint a commission of inquiry".
49.4 The Commissions Act
supplements the Premier's power to appoint a commission and the
provisions of the Act apply
ex lege
once a commission is
appointed by the Premier.
49.5 The Premier's sole
authority to appoint commissions means that he or she is solely
responsible for the manner in which he or
she exercises this power
and individually accountable to the provincial legislature for the
exercise of the power.
49.6 The powers of the
Provincial Government of the Western Cape in relation to the City are
not limited to those under Section
139 of the Constitution, and the
City's autonomy is equally not untrammelled for the following
reasons:
In terms of Section
151 (3) of the Constitution the City's right to govern is limited
to "local government affairs".
The ambit of these
affairs is dealt with in Section 156 (1) of the Constitution read
together with part B of Schedules 4
and 5. Issues of
malperformance and maladministration are clearly not exclusive
local government affairs. Nor is the investigation
of
malperformance and maladministration in a local government. These
are pre-eminently legitimate tasks for a commission
of inquiry.
49.6.2 It is submitted
that there is no suggestion that the Commission's activities
"compromise or impede a municipality's
ability or right to
exercise its powers or perform its functions" in accordance with
Section 151 (4) of the Constitution.
49.6.3 In terms of
Section 155 (6) (a) of the Constitution, the Provincial Government of
the Western Cape is obligated to "provide
for the monitoring and
support of local government in the province through legislative or
other measures". The power is repeated
in Section 54 (1) of the
Western Cape Constitution.
49.6.4 In terms of
Section 155 (7) of the Constitution the Provincial Government of the
Western Cape has the "legislative and
executive authority to see
to the effective performance by municipalities of their functions in
respect of [local government affairs]
by regulating the exercise by
municipalities of their executive authority referred to in Section
156 (1)". This power is also
reflected in Section 54 (2) of the
Western Cape Constitution.
[50] The Constitutional
Court in the Certification Judgment
supra
at paragraph
42 held that the "ambit of provincial powers and functions in
respect of [local government] is largely confined
to the supervision,
monitoring and support of municipalities". The power to
"support" local government is "not
insubstantial".
The monitoring power is weaker in the sense that it is antecedent to
the province's support function and does
not allow the province to
"control" local government affairs or to launch legislative
interventions. It does, however,
allow the province "to measure
or test at intervals local government compliance with national and
provincial legislative directives
or with the new text itself"
(at paragraph 373).
[51] The Constitutional
Court in the Certification Judgment at paragraph 373
supra
stated that the Constitution revealed a concern for the autonomy and
integrity of local government and prescribes a hands-off relationship
between local government and other levels of government on the one
hand, but on the other hand, acknowledges the requirement that
higher
levels of government monitor local government functioning and
intervene where such functioning is deficient or defective,
in a
manner that compromises this autonomy. This is a necessary hands-on
component of the relationship.
[52] One of the manners
in which the Provincial Government of the Western Cape exercises its
monitoring, support and oversight powers
over the City, is by
exercising powers under Section 106 (1) of the Systems Act. This
provision empowers the MEC to question or
investigate
"maladministration, fraud, corruption or other serious
malpractice". This is a clear indication that investigation
of
these issues constitutes a valid provincial function. This power does
not however exhaust the provincial monitoring powers.
[53]
The Commission also does not interfere in local government affairs
because it merely collects information.
[54] There can be no
suggestion that an investigation into maladministration, fraud or
corruption is, in any abstract sense, an
invasion of the hallowed
terrain of local government.
[55] In the Umlambo case
supra
at paragraph 21, it was held that when an
investigator appointed under Section 106 (1) (b), required the powers
of
subpoena,
the only viable route open to the MEC was to
approach the Premier, with a request to appoint a commission in terms
of the Provincial
Commissions Act.
[56] The submission by
the City that the Premier's decision to institute a commission under
his constitutional and statutory powers
was "ancillary" to
and dependent on, a valid exercise of the power of the MEC to hold an
investigation under Section
106 (1) (b) of the Systems Act is
incorrect. A lawful exercise of the MEC's statutory powers cannot
present a "jurisdictional
prerequisite" for a lawful
exercise of the constitutional powers of the Premier, to institute a
commission of inquiry into
malperformance and maladministration of
the City or any other municipality.
[57]
The City's contention that the power of the Premier to appoint a
commission to investigate the conduct of a municipality is
located in
Section 106 (2), as interpreted in the Umlambo case, is incorrect for
the following reasons:
57.1 The decision in the
Umlambo case confirms that Section 106 (2) does not apply when a
Provincial Commissions Act exists. A commission
set up in these
circumstances is obviously informed by the MEC's investigation, but
is instituted by the Premier, applying his
mind independently, in
terms of his powers in Section 127 (2) (e) of the Constitution,
Section 37 (2) (e) of the Western Cape Constitution
and Section 1 (1)
(a) of the Western Cape Commissions Act. Section 106 (2) does not
separately empower the Premier to appoint commissions.
57.2 The Premier has
almost untrammelled powers to appoint commissions of inquiry, quite
independently of Section 106 of the Systems
Act. This power to
appoint commissions is not reduced or ousted, when a Section 106 (1)
(b) investigation exists.
57.3 Section 106 of the
Systems Act is not exhaustive of the Provincial Government of the
Western Cape's oversight and support functions
in terms of Sections
155 (6) and (7) of the Constitution, or of its ability to investigate
fraud, corruption and maladministration
or "other unlawful
conduct" in a local government. There is no reason why the
Premier could not institute a commission
in the absence of an
investigation by the MEC under Section 106 (1) (b).
57.4 The Premier has made
it clear that the Commission is not a precursor to an intervention in
the City's affairs in terms of Section
139 of the Constitution, which
provision entitles the Provincial Government of the Western Cape in
serious cases, to wholly or
partially take over the administration of
a municipality, or to appoint an administrator for these purposes.
[58] Having considered
these opposing arguments, it seems to me, that the issue for
determination is whether the object of the Legislature
in enacting
Section 106 of the Systems Act, was not only to define the
circumstances in which the MEC could appoint investigators
to enquire
into the affairs of a municipality, but also the circumstances in
which the Premier was entitled to appoint a commission,
with coercive
powers to enquire into the affairs of a municipality.
[59] In terms of Section
127 (1) of the Constitution the Premier "has the powers and
functions entrusted to that office by
the Constitution and any
legislation". Section 127 (2) (e) of the Constitution provides
that the Premier is "responsible"
for appointing
commissions of inquiry. Section 37 (2) of the Constitution of the
Western Cape also provides that the Premier "is
responsible for"
appointing commissions of inquiry. Section 37 (1) of the Constitution
of the Western Cape also provides that
the Premier has the powers and
functions entrusted to that office by the National Constitution, the
Western Cape Constitution and
any legislation.
[60] Section 1 of the
Western Cape Provincial Commissions Act No. 10 of 1998, provides that
the Premier may, by proclamation in
the Official Gazette of the
province, appoint a commission of inquiry, define its terms of
reference and make regulations providing
for procedure. Sections 2 -
9 apply to all commissions. The coercive powers of
subpoena
etc.
are contained in Section 3. This position is contrasted with the
position applicable at national level. The President is responsible
for appointing commissions of inquiry in terms of Section 84 (2) (f)
of the Constitution. In terms of Section 1 (1) (a) of the
Commissions
Act No. 8 of 1947, if the President has established a commission of
inquiry he may make the provisions of the Act applicable
provided the
investigation objectively relates to a matter of "public
concern". Without making the provisions of the
Commissions Act
applicable, any such commission would not be possessed of any
coercive powers.
[61]
It was held in
President
of RSA and others v SARFU and others2000 (1) SA 1 (CC) paragraphs 140
- 148 and 165 - 167
that the decision of the
President to establish a commission of inquiry under Section 84 (2)
of the Constitution did not constitute
administrative action. As
regards the second decision by the President to make the Commissions
Act applicable and whether this
also constituted administrative
action, the issue was left open.
[62] It was held in the
SARFU case that the term "public concern" must be a concern
of members of the public which is
widely shared (paragraph 175) and
that this requirement was a significant limitation on the power of
the President to vest commissions
with powers of coercion. It is an
objective check justiciable by the courts and it was pointed out at
paragraph 176 that
"Coercive powers of
subpoena
are generally reserved for courts. It is quite
appropriate that, where the President is given the power to extend
them to a commission
investigating a matter, he or she may do so only
where, viewed objectively, the matter to be investigated by the
commission is
one of public concern".
[63] Consequently, the
President's power to vest commissions of inquiry with coercive powers
is limited, whereas the Premier's power
is not.
[64] In ascertaining the
effect of Section 106 (2), upon the power of the Premier to appoint a
commission of inquiry with coercive
powers to investigate the affairs
of a municipality in terms of the Western Cape Commissions Act, read
with Section 127 (2) (e)
of the Constitution, and Section 37 (2) of
the Constitution of the Western Cape, the object is to ascertain from
the language employed
the intention which the Legislature meant to
express
Protective
Mining & Industrial Equipment Systems v Audiolens
1987 (2) SA 961
(A) at 991 G
65.1 In ascertaining this
intention, regard is to be had both to the language of the enactment
and to the context, using this word
in the wide sense. Among the
factors which the court is justified in taking into account are the
matter of the statute, its apparent
scope and purpose, the history of
the statute, with particular reference to the presumption against any
further alteration of current
law than that clearly conveyed by the
statute under consideration
Audiolens supra at
991 G to 992 A and authorities there cited
65.2 Section 106(2)
provides as follows
“
In
the absence of applicable provincial legislation, the provisions of
sections 2, 3, 4, 5 and 6 of the Commissions Act 1947 (Act
No 8 of
1947) and the regulations made in terms of that Act apply with the
necessary changes as the context may require, to an
investigation in
terms of subsection (1)(b).”
65.3 I do not agree with
the submissions made on behalf of the Premier and the MEC, that the
Umlambo
case confirmed that this section does not apply when a
Provincial Commissions Act exists. It is only in the absence of
provincial
legislation that the national legislation applies. If
provincial legislation exists it applies.
Umlambo’s case
supra at page 400 F – 401 A.
[66] The background
against which a statute was enacted and the object which the
Legislature intended to obtain, are of great importance
Nedbank Limited v
Norton
1987 (3) SA 619
(N)
at 627 A
[67] The following
background factors to the passing of the Systems Act and in
particular Section 106 are, in my view, relevant:
67.1 In the preamble, the
Act is said to be part of a suite of legislation that gives effect to
the new system of local government.
67.2 The constitutional
order of local government emphasised the autonomous nature of local
government.
67.3 There was an
obligation on the provinces to provide for the monitoring and support
of local government by legislative or by
other means in terms of
Section 155 (6) (a) of the Constitution.
67.4 At the time the
Systems Act came into operation on 01 March 2001, eight of the nine
provinces in South Africa had legislation
dealing with the
appointment of commissions by the relevant Premier in terms of
Section 127 (2) (e) of the Constitution.
Umlambo's case
supra at page 400 footnote 1
At the time the Systems
Act was assented to by the Legislature on 14 November 2007, the
Western Cape Provincial Commissions Act
was already in existence,
having been assented to on 29 May 1998, with the date of commencement
being 01 June 1998.
67.5 The provisions of
the Western Cape Provincial Commissions Act must however be read
subject to the provisions of the Systems
Act in terms of the
hierarchical structure of legislation.
67.6 The source of the
Premier's power to appoint a commission of inquiry resides in Section
127 (2) (e) of the Constitution, but
his power to appoint a
commission with coercive powers resides in the Western Cape
Provincial Commissions Act, in terms of which
there is no restriction
upon the vesting of coercive powers in the commissioners.
[68] The purpose, or
object, of the Legislature must have been to pass legislation which
struck a balance between the constitutional
obligation imposed on the
provinces to monitor local government in terms of Section 155 (6) (a)
of the Constitution, and the circumstances
under which the
constitutional autonomy of local government could be impaired by way
of an investigation or commission, in which
the commissioners were
invested with coercive powers.
[69] The object of the
Legislature must also have been to ensure that before investigators
were invested with coercive powers, the
requirements of Section 106
(1) were complied with. Such an objective would be consistent with:
69.1 The Constitutional
Court's approval of the restraints placed upon the President's power
to grant coercive powers to commissioners
and
69.2 The absence of any
restraint upon the Premier to grant coercive powers to commissioners
in terms of the Western Cape Commissions
Act.
[70]
If the Premier was entitled to appoint a commission, in terms of the
Western Cape Provincial Commissions Act with the automatic
conferral
of coercive powers, to investigate the affairs of a municipality
without regard to the provisions of Section 106 (1),
it would render
these provisions superfluous. What would be the point in establishing
such stringent requirements to be complied
with by the MEC, whose
concern is local government, when the Premier could ignore them by
establishing a commission independently?
It is a trite principle of
statutory interpretation that a statute should not be construed so as
to render any part of it superfluous.
CIR v Golden Dumps
(Pty) Limited
[1993] ZASCA 89
;
1993 (4) SA 110
(A) at 116 F - 117 B
[71] In my view, the
intention of the Legislature in enacting Section 106 of the Systems
Act was to make provision for the exercise
by the Premier of his
power to appoint a commission of inquiry in terms of the Western Cape
Provincial Commissions Act, to investigate
the affairs of a
municipality.
I agree that Umlambo's
case
supra
is authority for the proposition that the
Premier has the power to use the provisions of the Western Cape
Provincial Commissions
Act to constitute investigators appointed by
the MEC under Section 106 (1) (b) as a commission of inquiry with the
coercive powers
this implies. It did not however deal with the issue
of whether this was the only source of the Premier's power to do so.
[72] This does not
constitute an attempt to diminish the authority held by the Premier
to appoint commissions of inquiry in terms
of Section 127 (2) (e) of
the Constitution, nor Section 37 (2) of the Constitution of the
Western Cape, as such authority does
not encompass the authority to
grant coercive powers to a commission.
[73] In so far as Section
106 limits the power of the Premier, in terms of the Western Cape
Provincial Commissions Act, to appoint
a commission to enquire into
the affairs of a municipality, I regard this as a necessary
implication from the wording of Section
106, because the very
situation which the Section was designed to remedy was the
uncontrolled investigation of the affairs of municipalities
by the
province
Nedbank case supra
at 626 I
[74] Consequently, the
Premier was not entitled to appoint the Second Erasmus Commission
independently of and without reliance upon,
Section 106 (2) of the
Systems Act, as an adjunct to the appointment of investigators by the
MEC, in terms of Section 106 (1) (b)
of the Systems Act.
[75] A further argument
advanced by Mr. Rogers on behalf of the City in this regard also has
to be considered.
[76] It is submitted that
a consideration of the legitimate purposes for which a provincial
commission can be established, supports
the conclusion that the
Premier had no independent power to establish a commission to
investigate the matters in question. The
constitutional principle of
legality requires that the decision to appoint the commission, must
be rationally connected to the
purpose for which the
commission-appointing power was conferred.
[77] Although Sections
127 (2) (e) of the Constitution and Section 37 (2) (e) of the Western
Cape Constitution, do not state the
purpose for which the power was
conferred, the purpose must have been to enable the Premier to decide
whether or not to embark
on a particular course of action. The
commissions report must be one which could rationally result in some
legitimate action by
the Premier, or provincial government.
[78] The right of the
Western Cape Provincial Government to intervene is confined to
Section 139 of the Constitution and unless
there was a plausible
basis for supposing that the commissions report could culminate in
lawful intervention under Section 139,
there would be no rational
connection between the exercise of the power and its purpose.
[79] Section 139 (1)
provides that intervention is justified where a municipality "cannot
or does not fulfil an executive obligation
in terms of the
Constitution or legislation" and is the only conceivable
provision of this Section which could apply in this
case. This
Section is concerned with omission or inaction by the municipality
and not positive misconduct. It is also framed in
the present tense,
being concerned with an ongoing failure and not a past failure.
Intervention would not be appropriate where
a past omission had
already ceased.
[80] It is submitted that
Items 1 - 10 of the terms of reference of the Second Erasmus
Commission constitute suspected positive
misconduct and not any
failure to perform an executive obligation. Moreover, the suspected
positive misconduct is a past matter
rather than continuing
misconduct.
[81] It is therefore
submitted that the establishment of the Second Erasmus Commission,
based upon an exercise by the Premier of
his powers in terms of
Section 127 (2) (e) of the Constitution and Section 37 (2) (e) of the
Western Cape Constitution, cannot
be rationally justified as a
precursor to intervention under Section 139, because this Section
only authorises intervention in
respect of ongoing omissions.
[82]
It is submitted further that the reference to suspected misconduct in
the form of possible criminal contraventions of the Corruption
Act in
items 9 and 10 of the terms of reference in the Second Erasmus
Commission does not assist the Premier, because Section 139
of the
Constitution, nor any other legislation, gives the provincial
government any function in respect of criminal contraventions
by a
municipality or its officials.
[83]
A reference to Sections 205 (3), 206 (3) and 206 (5) (a) of the
Constitution, indicate that it is inconsistent with the
constitutional
role of the Police and the National Prosecuting
Authority, that provincial commissions of enquiry be set up to
investigate suspected
crimes.
[84]
The commission-appointing power of the Premier can only be used for
legitimate purposes, which does not include the investigation
of
crime.
[85]
The submission is therefore made that for these additional reasons
the Premier did not possess a power independent of Section
106 (2) to
establish the Second Erasmus Commission.
85.1 Put differently, as
I understand the argument, if the Premier possesses a power to
appoint a commission of inquiry to investigate
the affairs of a
municipality independently of Section 106, his conduct was not
justified in the present case, because of the absence
of a rational
connection between his decision and any envisaged action as a result
thereof.
[86] Mr. Heunis submits
that although the Premier has made it clear that the intention of the
Commission has never been as a precursor
to intervention under
Section 139 of the Constitution, this does not mean there is no
possible action which the provincial government
can take, based upon
the outcome of the commissions. He submits that the City may want to
use the report to follow up on disciplinary
action against particular
councillors or officials, or the report may simply be handed to the
City to decide what future action
to take.
He submits that there is
no need for the Premier to have a preconceived idea as to what he is
going to do with the information in
any report that is produced.
[87]
Although these submissions are advanced in the context of the need
for a rational connection between the information before
the Premier
and his decision to establish a commission, and not in answer to the
present argument, it seems to me that the Premier's
contentions are
relevant in the present context.
[88] The contention of
Mr. Heunis, as I understand it, is that the report does not have to
be one which could rationally result
in some legitimate action by the
Premier or the Provincial Government against the Municipality. In my
view this cannot be so. When
the constitutional autonomy of local
government under the constitution is given proper weight, it is vital
that there be a rational
connection between the decision and some
envisaged action to be taken as a consequence by the Premier or the
provincial government,
in respect of the particular municipality.
[89] When regard is had
to the fact that any commission appointed by the Premier in terms of
the Western Cape Provincial Commissions
Act, is automatically vested
with coercive powers, the principle of legality demands such a
rational connection. In other words,
before the Premier may lawfully
decide to establish a commission with coercive powers to investigate
the affairs of a municipality,
the subject matter of the
investigation must be of such a nature, that intervention by the
Province in terms of Section 139 of
the Constitution, could
rationally result from the commissions report.
[90] This does not
require that the Premier is obliged to predict the outcome of a
commissions report. It simply demands that the
subject matter to be
investigated could rationally result in such intervention. The fact
that the report in the end result does
not justify such intervention,
would not necessarily mean
ex post facto
, that no rational
grounds existed at the outset to establish the commission.
[91] On such an approach,
the investigation of criminal conduct by a commission could not be
rationally justified, unless the nature
of such suspected conduct was
relevant to establishing conduct on the part of a municipality, as
envisaged in Section 139 of the
Constitution.
[92] In regard to the
issue of the commission investigating possible criminal conduct, Mr.
Heunis submits that:
92.1 The Commission will
not usurp police investigative functions. The monitoring function of
the province clearly includes an interest
in the underlying conduct,
not merely because such action may constitute a crime, but also
because it affects governance.
92.2 In terms of Items 9,
10 and 11 of the Second Erasmus Commission terms of reference, the
Commission is merely required to "advise"
whether the
provisions of the
Prevention and Combating of Corrupt Activities Act
2004
have been breached. The Commission is not asked to make
definitive findings and certainly not to institute criminal
proceedings.
[93] In my view, the
investigation of criminal conduct as a primary task by a commission
of inquiry is inherently undesirable for
the reason that it leads to
a blurring of the functions of the executive and the police. For
reasons which I will deal with later
in this judgment, the
independence of the Police and the National Prosecuting Authority is
a vital component in any democratic
state.
[94] In my view
therefore, and assuming contrary to the view I have expressed above,
that the Premier possesses a power to appoint
a commission of inquiry
to investigate the affairs of a municipality independently of
Section
106
, the subject matter of the investigation must be of such a nature
that intervention by the province in terms of Section 139 of the
Constitution, could rationally result from the commissions report. On
the facts of the present case, and regard being had to the
terms of
reference of the Second Erasmus Commission, such intervention could
not rationally result from its report.
Is the Premier’s
appointment of the Second Erasmus Commission vitiated on the
constitutional principle of legality, as a result
of an ulterior
motive on the part of the Premier?
[95] Consequently, even
if the Premier possesses such an independent power, he was not
entitled on the facts of this case, to appoint
the Second Erasmus
Commission.
[96] Turning to the
challenge based upon the ground that the Premier's appointment of the
Second Erasmus Commission is vitiated
on the constitutional principle
of legality, as a result of an ulterior motive on the part of the
Premier.
[97] It is clear that the
decision by the Premier to appoint the Second Erasmus Commission,
does not constitute "administrative
action" in terms of the
Promotion of Administrative Justice Act No. 3 of 2000
, because the
definition in this Act expressly excludes the provincial executive
powers contained in Section 127 of the Constitution.
The decision
therefore is not reviewable in terms of this Act.
[98] The decision by the
Premier does however have to conform with the constitutional
principle of legality. The principle is as
stated in
Masethla v
President of the RSA and another
[2007] ZACC 20
;
2008 (1) SA 566
(C) at 594
paragraphs 79 - 81
The official must act
within the law and in a manner consistent with the Constitution. He,
or she, must not misconstrue the power
conferred. Secondly, the
decision must be rationally related to the purpose for which the
power was conferred. If not, the exercise
of the power would, in
effect, be arbitrary and at odds with the rule of law.
[99] The basis of the
challenge is that the Premier did not hold the honest belief that the
establishment of the Second Erasmus
Commission was warranted for any
lawful purpose and he had the intention to use the Commission for the
ulterior and improper purpose,
of attempting to embarrass or
discredit political opponents.
[100] It is clear that if
the Premier did not hold such an honest belief, and possessed the
alleged ulterior and improper purpose,
his decision would not be
rationally related to the purpose for which the power was conferred
and it would be arbitrary and unlawful.
The decision would therefore
fall to be set aside as unlawful.
[101] The crux of the
matter therefore is the state of mind of the Premier when he decided
to establish the Second Erasmus Commission.
Did he honestly believe
that its establishment was justified? Did he possess such an ulterior
and improper purpose?
[102] Mr. Rogers submits
that since the issue relates to state of mind, the factual conclusion
must rest upon inferences being drawn
from the objective facts. In
such a case the value of oral evidence and cross-examination in
arriving at the truth should not be
exaggerated, as the Premier would
continue to deny the implication and the matter would essentially
remain one of inference from
objective facts.
[103]
The response of Mr. Heunis is as follows:
103.1 In order to find an
absence of an honest belief that the establishment of the Commission
was warranted, this Court would first
have to find that there were no
objectively good reasons for the actions of the Premier.
103.2
If this were found to be so, this Court would then have to go further
and find that not even the Premier subjectively believed
that he had
any good reasons.
103.3 Even if this Court
were to find that some or even all of his concerns were wrong, there
can be no justification for finding
that the Premier did not
subjectively believe he had any good reasons, particularly in the
absence of oral evidence. This would
require a factual finding that
the Premier was positively motivated by some malice towards the City
and would require a rejection
of the Premier's factual assertions,
that he was not biased and acted for what he believed were good
reasons. To do so the Premier's
assertions would have to be rejected
as concocted.
103.4 As regards the
issue of the hearing of oral evidence and the assertion that the
Premier would simply continue to deny any
bad faith, he submits that
the fact remains that the Court has been deprived of the opportunity
to hear evidence and make its own
credibility findings.
[104]
The fact remains however, that neither the City nor the DA have
sought to refer the issue to oral evidence, and consequently
any
factual disputes must be resolved in accordance with the dicta in
Plascon-Evans
Paints (Pty) Ltd. v Riebeek Paints (Pty) Limited
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
at 635 C
In this regard the City
submits that the Premier's assertions are far-fetched or clearly
untenable and may be rejected on this basis.
[105] What must be
considered at the outset is the correct approach in drawing
inferences on the evidence as to the Premier's state
of mind.
[106] In this regard
valuable guidance may be found in those decisions in the field of
contract, dealing with what conduct constitutes
fraud in the context
of false representations, made by one party to the other. Certain
dicta are particularly relevant in the context
of determining the
state of mind of a person who makes a false representation. I do not
regard the use of such dicta in the present
context as inappropriate,
because they deal with the issue of drawing inferences as to an
individual's state of mind, from the
objective facts.
[107]
As stated in
R v Myers
48 (1) SA
375
A at 383A
"absence of
reasonable grounds for belief in the truth of what is stated may
provide cogent evidence that there was in fact
no such belief".
[108] The principle was
followed in
Hamman v Moolman
1968 (4) SA 340
(A) at 347 A
where the following was
stated:
"The
fact that a belief is held to be not well founded may, of course,
point to the absence of an honest belief but this fact
must be
weighed with all the relevant evidence in order to determine the
existence or absence of an honest belief"
.
[109] The Premier has
asserted that he was not biased and acted for what he believed were
good reasons. The challenge by the City
and the DA is that he did not
hold such an honest belief. In other words, the Premier has
misrepresented his own state of mind.
In my view, the correct
approach is as follows:
109.1 The enquiry is
whether the evidence reveals reasonable (and therefore objective)
grounds for a belief by the Premier, that
he had good reason for
establishing the Second Erasmus Commission. If it is found that none,
or insufficient, reasonable grounds
existed for holding such a
belief, this may (considered together with all of the relevant
evidence) point to the absence of an
honest belief on the part of the
Premier. As pointed out in Myer's case
supra
, this may
provide "cogent" evidence that the Premier did not hold
such a belief.
109.2 The finding of an
absence of an honest belief by the Premier in the reasons for
establishing the Second Erasmus Commission,
would then have to be
considered together with all of the relevant evidence, to decide
whether he, in addition, possessed the ulterior
purpose of attempting
to discredit or embarrass political opponents, by establishing the
Second Erasmus Commission. However, a
finding of an absence of an
honest belief by the Premier, is not necessarily a prerequisite for
finding that the Premier possessed
an ulterior motive. If the
evidence establishes the presence of such an ulterior motive, this
would constitute cogent evidence
of the absence of an honest belief
on the part of the Premier.
109.3 I therefore do not
agree with the submission of Mr. Heunis that even if it is found that
there were no reasonable grounds
for the belief held by the Premier,
a finding that the Premier did not subjectively hold such a belief
would not be justified,
in the absence of oral evidence, unless a
factual finding could be made that the Premier was positively
motivated by malice towards
the City and his assertions that he
believed he acted for good reasons, could be rejected as concocted.
Such an approach ignores
the fact that the absence of reasonable
grounds for the professed belief, may in itself provide "cogent"
evidence that
the belief itself was not honestly held, without having
to find that the Premier was motivated by malice towards the City.
The
issue of malice would be relevant to the issue, of whether the
Premier possessed the ulterior purpose of discrediting, or
embarrassing,
political opponents.
[110] A further
consideration which is relevant to the issue of whether the Premier
possessed an honest belief that good reasons
existed for the
establishment of the Second Erasmus Commission, is the effect of any
failure by the Premier to make enquiries to
ascertain the true state
of affairs. Again, although expressed in the context of false
representations in the field of contract,
dicta dealing with this
principle can, in my view, be applied in the present dispute, for the
reason I have already given.
[111] In Myer's case
supra
, Greenberg J.A., referring to Halsbury stated
that a belief is not honest which:
"though in fact
entertained by the representor may have been itself the outcome of a
fraudulent diligence in ignorance - that
is, of a wilful abstention
from all sources of information which might lead to suspicion, and a
sedulous avoidance of all possible
avenues to the truth, for the
express purpose of not having any doubt thrown on what he desires,
and is determined to, and afterwards
does (in a sense) believe"
Myers case supra at
page 382
[112] In examining the
evidence relevant to the present enquiry, regard must be had not only
to the information before the Premier
at the time of the
establishment of the Second Erasmus Commission of Inquiry, but also
to the information before the MEC at the
time of the initiation of
the Section 106 (1) (b) investigation and before the Premier as to
the establishment of the First Erasmus
Commission of Inquiry. This is
because the Premier states that this was the information that
informed his decision to establish
the Second Erasmus Commission of
Inquiry. The fact that I have declined to examine the lawfulness of
the MEC's Section 106 (1)
(b) investigation and the lawfulness of the
establishment of the First Erasmus Commission of Inquiry, for the
reasons set out above,
can of course have no bearing on this aspect.
[113] I propose dealing
at the outset with the issue of whether the Premier wilfully failed
to make enquiries, to ascertain the
true state of affairs, before
establishing the First and thereafter the Second Erasmus Commission,
and if so, whether any inference
may as a result be drawn on the
evidence of the presence or absence of an honest belief on his part,
that good reasons existed
for the establishment of the Second Erasmus
Commission.
[114] Of relevance to
this issue is the assertion by the Premier that the City was
unco-operative in dealing with the concerns of
the MEC and himself.
The initial queries by the MEC in terms of Section 106 (1) (a) of the
Systems Act were in writing dated 26
October 2007 and 14 November
2007. They were both directed at the City Manager. In respect of the
letter dated 26 October 2007,
the City Manager replied by letter
dated 29 October 2007. The Speaker of the City also replied by way of
his letter dated 01 November
2007, because the City Manager was
unable to respond to certain of the queries raised, and referred them
to the Speaker for reply.
In my view, the queries raised by the MEC
were fully and properly replied to by both the City Manager and the
Speaker. The City
Manager and the Speaker both stated that they
trusted that they had fully answered the MEC's queries.
[115] The MEC then
addressed the further query to the City Manager dated 14 November
2007. In the letter he did not express any
reservations about the
co-operation he was receiving from the City Manager, or the Speaker.
The Premier however states that it
appeared that the Speaker and the
City Manager "did not intend to co-operate with the MEC".
He also states that it was
"clear" that the Speaker was
"not willing to co-operate with the MEC". In my view there
is no factual basis
for such an assertion.
[116]
The reply of the City Manager to the MEC's query is dated 21 November
2007. In my view he replied fully in a lengthy letter
to the queries
raised by the MEC. In his letter he also makes the following
significant statement:
"I
give you my further assurance that I am committed to resolve and
address any corrupt or fraudulent activities or any maladministration
that might have been committed (if any) in the procurement of and
payment for services of George Fivaz & Associates (GFA)"
[117] There is no basis
for any contention that the City was not prepared to co-operate. The
response however, on 27 November 2007,
was the decision by the MEC to
establish the Section 106 (1) (b) investigation, with persons to be
designated as members of a commission,
followed by the establishment
of the First Erasmus Commission by the Premier on 04 December 2007.
The willingness of the
City to co-operate is also illustrated by the fact that even after
the announcement by the MEC of the appointment
of a commission, the
Acting City Manager wrote to the MEC on 29 November 2007, setting out
further information and possible remedial
steps he intended taking.
[118]
As regards the establishment of the Second Erasmus Commission, the
City had provided details of its challenge to the validity
of the
First Erasmus Commission and the Premier had responded by saying that
he would obtain an evaluation of the evidence by the
evidence leader
of the information collected for the First Erasmus Commission. He
added that if the evaluation of the evidence
indicated an exercise in
futility, he would be inclined to abandon the Commission.
[119] However, the most
obvious source of information to re-evaluate the need for the
establishment of a commission, namely the
City, was ignored. It must
have been patently obvious that the City had been given inadequate
opportunity to address the concerns
of the MEC and the Premier,
before the First Erasmus Commission was established. There could be
no concern that the Mayor would
not co-operate in dealing with any
queries, because as pointed out above, I have accepted the Premier’s
assertion that he
believed that the Mayor and the City would
co-operate with the establishment of the Second Erasmus Commission,
and the Mayor would
be pleased at the widening of the Commission's
terms of reference, to include the conduct of Chaaban. If the Premier
believed that
the Mayor would co-operate with the commission, then he
must have believed that the Mayor would co-operate in dealing with
any
queries, the object of which would be to re-evaluate the need for
such a commission.
[120] The fact that
tension existed between the City and the Premier, as a consequence of
the establishment of the First Erasmus
Commission, compounded as it
was by political animosity, in the light of the above was
insufficient reason for maintaining the
City would not co-operate.
[121] The enquiry at this
stage is directed at determining what evidence the Premier had before
him in regard to the concerns he
had before establishing the Second
Erasmus Commission. It then has to be decided whether the nature of
the evidence was such as
to lead to the inference that a failure to
seek information from the City in regard to these concerns was
wilful, and not merely
negligent. This is so because a "wilful
abstention" is required
Myer's case supra
at page 382
The issue is whether such
wilful abstention was motivated not only by a suspicion that
enquiries might be an avenue to the truth,
with the express purpose
of not having any doubt thrown upon his concerns or beliefs, but also
by the wish to embarrass political
opponents. In addition, the
enquiry is also directed at determining what facts would have been
revealed to the Premier, by enquiries
directed to the City and
whether these facts should reasonably have allayed his concerns.
[122] The Premier
annunciates his concerns, which appeared from the information before
him, as follows:
122.1 The investigation
which the City commissioned from George Fivas & Associates (GFA)
was not tailored to suspected breaches
of the Code for Councillors of
the City by Chaaban, but was a sprawling investigation to investigate
every aspect of Chaaban's
personal life. This raised the reasonable
suspicion that the true intention was to identify councillors who met
with Chabaan and
collect politically damaging information.
122.2 That unlawful
surveillance methods were used in contravention of the Regulation of
Interception of Communications and Provision
of Communication-Related
Information Act 70 of 2002 (the “Communications Act”).
This indicated that, at the very least,
the investigation was not one
in terms of the Code, which in terms of Item 14 (7) of the Code, was
required to follow the rules
of natural justice.
122.3 A reasonable
suspicion existed that the City was paying for the investigation
which was for the benefit of the DA.
122.4 The City did not
follow the usual supply chain management process in appointing GFA
and also paid for work performed before
it was appointed. Invoices
appeared to have been manipulated and the tasks performed by GFA
broken up, so as to fall below any
threshold which would have
necessitated a more rigorous appointment process.
122.5 The urgent
appointment and re-appointment of GFA was justified by the City
Manager and the Speaker, on the basis that Chaaban
posed a threat of
"human injury or death" to the City's Mayor, Speaker and
others, but this was not however addressed
in the scope of GFA's
initial quotation to the City, dated 01 June 2007. The City failed to
report any threats to the SAPS, which
was inconsistent with the
City's own policies for the protection of councillors. The basis for
the urgency of GFA's initial appointment
therefore appeared
fabricated.
122.6 The additional
services offered by GFA both before and during the floor-crossing
period, appeared to be a full scale surveillance
project supposedly
to protect the Mayor and the Speaker. The security of councillors
should have been dealt with by the SAPS. However,
the City ignored
its own policies in this regard.
[123] The response of the
City to these concerns is as follows:
123.1 As regards the
concern raised in paragraph 122.1
supra,
the City
states that the quotations from GFA shows that it was GFA's view, as
the investigative experts, that these sorts of enquiries
were
relevant to the issues which the Speaker wanted to investigate.
In the first quotation,
the background investigation on Chaaban's business links etc., was
specifically related to Chaaban's conduct
concerning the bribing of
politicians. In the second quotation, the investigation into
Chaaban's connections, friends and financial
resources, his influence
in crime syndicates were linked to threats and intimidation by him
against councillors and were aimed
at ascertaining the credibility of
the threats and Chaaban's ability to carry them out.
The City therefore
submits that the investigation was directed at the legitimate
concerns of the Speaker, and it was not for the
Premier to dictate
how the Speaker should go about his duties under Item 13 of the Code
for Councillors.
123.2 As regards the
concern that unlawful surveillance methods were being used, it is
clear that before the Premier established
the Second Erasmus
Commission, he had access to the report of the evidence leader, which
is erroneously referred to as an "interim
report". I will
in due course deal with the appropriateness of his receipt of such
evidence, but for present purposes the
following is said at paragraph
11.3.8:
"I have found no
evidence to date that 3rd party monitoring of conversations took
[place] without the permission of one of
the parties to the
conversation"
The significance of this
lies in the fact that the legality of the monitoring of telephonic
and other communications between persons
is governed by the
Communications Act, which primarily regulates "third party
monitoring" but the recording of a communication
by one of the
parties to a communication, is lawful unless such person is a law
enforcement officer.
123.3 The City submits
that there is no evidence in the Premier's affidavit, nor the
so-called "interim report", that
any other form of unlawful
surveillance occurred. All that is stated by the Premier is that some
of the surveillance equipment,
found in the possession of an employee
of GFA, one du Toit, "appeared to contravene legal requirements"
but no further
details of the legal requirements in question, nor the
nature of the equipment, are furnished.
As
regards the Premier's concern that such surveillance was in breach of
a statutory duty to observe natural justice in accordance
with Item
14 (7) of the Code, the City submits that:
123.3.1 The Premier has
misunderstood the provisions of Item 14 (7) which states that an
investigation "in terms of this item"
(Item 14) must be in
accordance with the rules of natural justice. The investigation in
question is one contemplated by Item 14
(1), i.e. an investigation by
the council culminating in a finding, or an investigation by a
council sub-committee, culminating
in a recommendation to the
council.
123.3.2 The investigation
by the Speaker, which included a covert element, was conducted under
Item 13 (1) (a). A provision corresponding
with Item 14 (7) is
noticeably absent. It is submitted that an Item 13 (1) (a)
investigation is a preliminary fact finding exercise
by the Speaker,
to which the rules of natural justice do not apply, except to the
limited extent encapsulated by Item 13 (1) (b),
in terms of which the
councillor in question must be given a reasonable opportunity to
reply in writing regarding the alleged breach.
123.3.3 In terms of the
Speaker's report, he conducted his investigation under Item 13 (1)
(a). He afforded Chaaban the right of
reply required by Item 13 (1)
(b). The Speaker then referred the matter to the Council in terms of
Item 13 (1) (c) for action in
accordance with Item 14. It was in
relation to that further process by the Council's disciplinary
sub-committee that Item 14 (7)
applied.
123.3.4 It is submitted
that there is nothing unlawful about covert investigation pursuant to
Item 13 (1) (a), because it may be
that the only way for the Speaker
to procure evidence of wrongdoing by the councillor is through such
an investigation. It is submitted
that ratepayers are entitled to be
governed by councillors who observe a high standard of conduct, and
the Speaker ought not to
be unduly fettered in an investigation aimed
at vindicating this public right.
123.4 The next concern is
that the City was paying for an investigation which was for the
benefit of the DA. The Speaker Smit alleged
in his founding
affidavit, that he gave the investigative instruction to GFA, which
was not denied by the Premier in reply.
The City submits that
this constituted performance by the Speaker of the obligation imposed
upon the Speaker in terms of Item 13
(1) of the Code of Conduct for
Councillors, being schedule 1 to the Systems Act. The Speaker was
obliged to investigate Chaaban,
if he held a reasonable suspicion
that Chaaban had breached the Code. Smit held such a reasonable
suspicion, because there was
evidence from councillors that Chaaban
was offering bribes and making threats, as part of a campaign to
induce councillors to change
political allegiance during the
floor-crossing period. This would violate Item 2 of the Code, which
required councillors to perform
their functions in good faith,
honestly, in a transparent manner and at all times to act in the best
interest of the municipality,
and in such a way that the credibility
and integrity of the municipality were not compromised.
123.5 The City also
submits that a reference to paragraph 10.1.1 of the "interim
report" reveals that Mr. Selfe of the
DA, met with Mr. du Toit
of GFA, on 04 June 2007 and asked whether there was any link to
Mr. Chaaban in respect of
a certain murder. The response as recorded in the “interim
report” was as follows:
"According to Mr.
Selfe when he put the question, Mr. du Toit quickly put him in his
place and told him that he was not acting
for the DA, but for the
City and he could not give Mr. Selfe any information and they parted
ways shortly thereafter. Upon listening
to the recording of the
meeting between Mr. Selfe and Mr. du Toit it appears that Mr. du Toit
did inform Mr. Selfe that he could
not give any feedback to Mr. Selfe
as he is only meant to give feedback to Mr. Smit".
123.6 It is also noted in
the interim report that
"Mr. du Toit would
introduce himself to the people he will interview as an investigator
from the Speaker's office".
123.7 The City submits
that in the light of these facts, there could be no reasonable
suspicion that the Speaker's engagement of
GFA was a front for the
DA. The fact that the DA was considering hiring GFA to investigate
Chaaban before the City did so, was
expected because the activities
of Chaaban had also come to the attention of the DA, and were also of
legitimate concern to the
DA. There was nothing sinister in the fact
that GFA was recommended to Smit, the Speaker, by Selfe of the DA, or
that the DA should
have abandoned its own plans for an investigation
when the Speaker decided (as he was statutorily obliged to do) to
conduct his
own investigation.
123.8 It appears that the
concern of the MEC, and thereafter the Premier, that the client of
GFA was a "party" and not
the City was referred to by the
MEC in his press statement of 27 November 2007, based on the GFA
quotations. The Acting City Manager,
in his letter dated 29 November
2007, referred to above, addressed to the MEC, stated that all of the
quotes were addressed to
a Mr. Barnie Botha, advisor to the Speaker,
and were not addressed to any political party. He explained that GFA
were first approached
by the DA for a quote, which they furnished but
the quote was not accepted. The first quote furnished thereafter to
the City, he
assumed was along similar lines to the quote furnished
to the DA. Due to an administrative error on the part of GFA, the
quote
was not properly amended and still referred to a "party".
I23.9 In this context the
Premier states that in considering the evidence "the penny
finally dropped" that despite her
remonstrations to the
contrary, the Mayor may not have been removed from the process of
appointing GFA. In other words, the Mayor
acting with the interests
of the DA at heart, in her capacity as its national leader.
123.10 The City states
that this allegation is based upon statements by the Premier that the
Mayor may have been involved in regular
Monday morning meetings with
GFA operatives, and that her telephone records indicated personal
contact with GFA. It is submitted
that the Premier's sources of this
information appear to arise from information disclosed to him by
Commissioner Petros, following
raids on the home of du Toit of GFA
and information contained in the "interim report".
123.11 The City submits
that in regard to the information disclosed to the Premier by
Commissioner Petros, the Premier does not
say that any audio clips
were played for him of discussions to which the Mayor was a party. He
also does not say that Petros told
him that there was evidence of
such discussions, or evidence the Mayor had met with GFA operatives.
123.12 No mention is made
in the "interim report" of any telephonic contact between
the Mayor and du Toit of GFA. Van
Heerden, of GFA's telephone
records, apparently reflect a twenty four second contact on 13 June
2008. Nothing is said in the "interim
report" as to the
nature of this contact, which was several weeks after GFA had been
appointed, and two days after GFA had
submitted its first report.
The
Mayor states that this was a call that she missed and that her cell
phone records confirm no telephonic contact at all with
du Toit until
04 October 2007, after he was arrested. This was also the first time
she spoke on the telephone with van Heerden.
The first time she met
du Toit and van Heerden was in August 2007.
123.13 The "interim
report" contains no evidence of meetings between the Mayor and
GFA operatives.
123.14 The next area of
concern was that the City did not follow the usual supply chain
management process in appointing GFA. The
City's response is that as
regards the issue that GFA was not on the City’s list of
approved suppliers, this was not apparent
to anybody until it was
raised in the "interim report". The GFA company which is on
the City's list as an approved supplier,
has a different registration
number from the GFA company which submitted tax invoices to the City.
Simply put, GFA's Mossel Bay
Franchise submitted these invoices to
the City. The GFA quotations and reports did not reflect a company
number, and the City only
realised when it was pointed out in the
respondent's answering papers, that the company whose details appear
on these invoices
was not the approved company. It is submitted that
this was an oversight which occurred in good faith.
123.15 The next concern
of the Premier was that the City paid GFA for work performed before
it was appointed. The City Manager addressed
this concern of the MEC
in his letter dated 21 November 2007, stating that he was seeking
clarity from GFA and that the amount
involved was R3,500.00. In his
letter of 29 November 2007, the Acting City Manager annexed
correspondence he had had with GFA and
stated that an option
available to the City was to "initiate legal action against GFA
if I conclude that they enjoyed unjustified
enrichment in such
amount". He undertook to advise the MEC of any decision he took
in that regard.
The next concern of the
Premier was that invoices from GFA appeared to be manipulated and
the tasks to be performed by GFA,
which related to a single
investigation, were deliberately broken up into smaller amounts, to
avoid topping any threshold which
required greater scrutiny in the
appointment of GFA.
123.16.1 The City denies
this and points out that this was never raised as a concern by the
MEC. The City Manager, in his letter
dated 21 November 2007 to the
MEC, dealt in detail with the quotations received from GFA, why he
had approved payment of them and
the deviations he had authorised in
that regard.
123.16.2 Related to this
issue, is an allegation that the cost centre which was to fund the
appointment of GFA had insufficient
funds. The City points out that
the deviation approval documents, which were annexed to the City
Manager's letter dated 21 November
2007 and sent to the MEC, show
that there were surplus funds left after the requested approval for
deviations, in order to pay
the quotes received from GFA. The City
submits that the MEC and the Premier have misunderstood these
documents, and instead of
the MEC querying the supposed anomaly in
these documents, by way of a further letter, the Premier's response
was to establish the
First Erasmus Commission.
123.17 Turning to the
concern of the Premier that although the urgent appointment and
re-appointment of GFA was justified by the
City Manager and the
Speaker, on the basis that Chaaban posed a threat of "human
injury or death" to the City's Mayor,
Speaker and others, this
concern was not addressed in the initial quote from GFA to the City
dated 01 June 2007. Because the City
failed to report any threats to
the SAPS, the basis for the initial appointment therefore appeared to
be fabricated.
The response of the City
is that the MEC had been given access by Commissioner Petros to the
first GFA report, which stated in paragraph
1.1, that at GFA's first
meeting with the Speaker on 31 May 2007, the issues raised were that
Chaaban was approaching councillors
with lucrative offers "and
also intimidated as [
sic
] to remain silent about his actions"
and that he had boasted about his connections in the Mafia. Paragraph
2.2 of the report
recorded that the primary objectives of the first
investigation had been
inter alia
to establish "who he
has threatened should his plans or attempts to upset the
floor-crossing in September comes to light".
One of the
conclusions of the first investigation was that Chaaban had
threatened councillors with assault.
As
regards the alleged failure to report the matters to the SAPS, the
City points out that:
123.17.1 On 25 June 2007,
three weeks after the appointment of GFA, Van Heerden of GFA informed
Superintendent Siegelaar that the
City wished to lay a charge with
the SAPS concerning Chaaban.
123.17.2 On 26 June 2007,
Du Toit of GFA and acting on behalf of the Speaker, met with
Superintendent Siegelaar and handed him a
transcript and statements,
asking Siegelaar to investigate.
123.17.3 The Speaker
contacted Siegelaar to ascertain progress. On being told that nothing
was being done, he asked Siegelaar to
call at his office, which
Siegelaar did.
123.17.4 At the meeting
the Speaker insisted on being given a reference number for the
investigation, even though Siegelaar claimed
that there was not
enough to justify charges.
123.17.5 On 11 July 2007,
the Speaker attended at Cape Town Police Station with an attorney to
lay charges, and handed additional
statements to Siegelaar.
123.17.6 Frustrated at
the lack of progress for more than eight months, the Speaker wrote to
the National Minister of Police on
17 March 2008 about the matter.
123.18 It is submitted
that the first time the issue was raised was in the departmental
report of 27 November 2007, to the MEC on
the day he decided to
establish an investigation in terms of Section 106 (1) (b) of the
Systems Act. The report merely stated "this
raises the question
whether the matter was reported to the SAPS and when".
123.19 The Mayor's public
statement of 31 October 2007 was that charges had been laid and the
Mayor complained of police inaction.
123.20 The next issue of
concern to the Premier was that the additional services offered by
GFA before and during the floor-crossing
period, appeared to be a
full scale surveillance project, supposedly to protect the Mayor and
the Speaker. The security of councillors
should have been dealt with
by the SAPS. However, the City ignored its own policies in this
regard.
123.20.1 The City's
submissions in this regard are that the evidence before the MEC and
therefore the Premier, was that GFA submitted
a third quotation dated
20 August 2005, which provided that the City had requested GFA to
submit a proposal for surveillance during
the cross-over period and
post cross-over period. The objective was to establish the movements
and plans of Chaaban and to monitor
his activities, keeping the
security of individuals such as the Speaker and the Mayor in mind,
and regarding it as their utmost
priority. However, in the letter of
the City Manager, referred to above, dated 21 November 2007 sent to
the MEC, he referred to
this quotation stating that he had authorised
the necessary deviation and further appointment. However, he added
the following
- "I am led to believe by the Speaker's office
that no further services have been rendered".
123.20.2 The City states
that the statement by the City Manager is borne out by the fact that
GFA produced no further report, submitted
no further invoice and
received no further payment. The City points out that the quotation
indicates that the focus was to be on
the risk Chaaban posed to the
personal security of the Mayor and the Speaker.
123.21 A further concern
of the Premier, which arose after the establishment of the First
Erasmus Commission, but before the establishment
of the Second
Erasmus Commission, was the issue of possible financial inducements
paid to Councillor Arendse in Cape Town, to resign
from the
Independent Democrats (ID) and to stand for the DA. He states that
evidence arose that Arendse may have been offered a
position as a
sub-council chair as an inducement to resign from the ID. A contract
purportedly prepared by an attorney at the behest
of the DA’s
provincial leadership was prepared for Councillor Arendse. The Mayor
was aware of this corruption, which it appears
she used as a basis to
refuse to elevate Councillor Arendse to a sub-council chair, after he
was elected as a DA Councillor. It
is alleged the Mayor failed to
report this corruption for almost a year and a half, and no
investigation was undertaken to ascertain
whether there had been a
breach of the Code. The Mayor only did so to pre-empt the Erasmus
Commission in order that she would not
have to explain her failure to
comply with her fiduciary duties. The Premier maintains that this
incident illustrated that the
Mayor and the DA, may have been
complicit in the type of actions for which it condemned Chaaban.
123.21.1 The response of
the Mayor is that after Arendse was elected as the DA candidate, he
approached her with an agreement apparently
signed by the DA’s
provincial chairperson, Kent Morkel, in which Arendse was promised a
sub-council chair. She states she
rejected this out of hand, believed
the attempted corruption had been thwarted and nothing more needed to
be done. However, when
in February 2008 the disaffected Arendse and
Morkel, began to speak publicly about their wrongdoing she concluded
if they wanted
a public ventilation of their behaviour, it would be
best for this to be dealt with by the courts, rather than a
commission of
inquiry, and she therefore laid a charge with the
police.
123.22 A further concern
of the Premier which again arose between the establishment of the
First Erasmus Commission and the Second
Erasmus Commission, was
evidence of inducements being paid to councillors in George to secure
their loyalty in the floor-crossing
period. The Premier alleges that
the information was that several dissatisfied DA councillors in
George, had been held
incommunicado
in a resort near
Wilderness, in order to prevent them from exercising their right to
cross the floor. The Premier states that after
they were released,
they were each paid R15,000.00, supposedly as an unsolicited gift.
The Premier states that this was patently
not credible and the
“gifts” were not reported by the councillors in terms of
the Code as they should have been. A
further concern was that GFA had
been called in to determine the source of an SMS, distributed amongst
councillors in George after
the election of Alderman Zille as the
leader of the DA.
123.22.1 The response of
the DA to these concerns is that certain councillors in George, at
their own initiative, chose to remove
themselves from George during
the 2007 floor-crossing window period, to escape what they contended
was the remorseless pressure
brought to bear on them to cross over.
The time was spent work-shopping in seclusion at a resort outside
George. They were subsequently
each compensated and re-imbursed with
an amount of R15,000.00 for the two week exercise. The necessary
declarations, it is alleged
have been signed by the councillors
concerned in respect of the remuneration received. The DA states that
it has instituted a full
investigation and if there is any evidence
of criminal misconduct, the DA will refer the matter to the SAPS.
123.22.2 As regards the
issue of the SMS and the retention of GFA to investigate this issue,
the DA states that this issue relates
to an SMS allegedly circulated
by Councillor P. Hill of the City, at the National Congress of the DA
in 2007, where the Mayor was
elected as the National Leader of the
DA. The SMS was seen as mischievous and there was doubt whether in
fact it originated from
Councillor Hill. Mr. Selfe of the DA states
that Mr. Theuns Botha, the leader of the DA in the Western Cape, has
confirmed that
on his own initiative he requested Mr. van Heerden of
GFA, to ascertain whether or not the SMS had been circulated by
Councillor
Hill. Neither the DA, nor the George Municipality, were
responsible for this service of GFA, which was carried out as a
favour
to Botha. Selfe alleges that a telephone call by the Premier
would have revealed the true state of affairs.
123.23 A consideration of
the concerns of the Premier together with the responses of the City
and the DA in my view, reveals that
any concerns of the Premier
should have been allayed if he had directed the appropriate enquiries
to the City and the DA, because
their responses show that:
123.23.1 The nature and
ambit of the investigation was determined by GFA as the experts.
123.23.2 The “interim
report” indicated that no unlawful surveillance had occurred.
123.23.3 GFA was engaged
by the City and the City was not paying for an investigation which
was for the benefit of the DA.
123.23.4 The Mayor was
not involved in appointing GFA, only had telephonic contact with the
representatives of GFA on 04 October
2007 and only met
representatives of GFA in August 2007.
123.23.5 There was
nothing sinister in the appointment of GFA’s Mossel Bay
Franchise and not the GFA company which was an
approved supplier and
that this was caused by an administrative oversight.
123.23.6 There was
nothing sinister in the payment of an amount of R3,500.00 to GFA for
services rendered before being appointed
by the City, and that steps
would be taken to recover this amount if payment was unjustified.
123.23.7 Invoices were
not manipulated and the approved deviations resulted in sufficient
funds being available to pay GFA.
123.23.8 The initial
quote by GFA, as well as GFA’s first report, dealt with the
physical threat posed by Chaaban.
123.23.9
Chaaban’s conduct had been reported to the SAPS.
123.23.10 The third quote
by GFA, focused on the risk posed by Chaaban to the personal security
of the Mayor, but no work was done
by GFA in respect of this quote.
123.23.11 There was no
need for the Speaker to observe natural justice in the investigation
he conducted in terms of Item 13 (1)
(a) of the Code.
123.23.12 The Mayor had
laid criminal charges against Arendse and Morkel in connection with
the election of Arendse, and the Premier
was already in possession of
the material facts, including the issue of any delay on the part of
the Mayor in doing so.
123.23.13
The investigation by GFA of the so-called SMS allegedly sent by
Councillor Hill, was not at the behest of the DA, or the
George
Municipality.
123.23.14 On the papers
before me, there is no evidence to cast doubt upon the veracity of
these responses. Consequently, in my
view, as the responses deal
directly and fully with the Premier’s concerns, they should
have been allayed by appropriate
enquiries.
123.24 What I find to be
of particular importance however (and leaving aside what the Premier
could have established by making appropriate
enquiries), is that
before establishing the Second Erasmus Commission the Premier in fact
had the following evidence before him:
123.24.1 The interim
report which stated that there was no evidence of illegal third party
monitoring of conversations, and contained
clear evidence that GFA
were conducting the investigation at the behest of the City and not
the DA. In addition, the interim report
contained no evidence of
meetings between the Mayor and GFA operatives, nor any telephonic
contact between the Mayor and GFA operatives.
123.24.2 The first
quotation of GFA which made it clear that the ambit and nature of the
investigation had been formulated by GFA.
The letter dated 29
November 2007, written by the Acting City Manager, which gave a
clear and reasonable explanation as to
the reference to a "party"
in the quote by GFA. The issue of whether GFA was paid for
services rendered before
being appointed by the City and what
could be done about it, was clearly and fully dealt with in the
letter of the City Manager
dated 21 November 2007. This letter
also clearly explained the deviations which had been authorised in
respect of the appointment
of GFA, and that no services had been
rendered by GFA in respect of the third quotation.
123.24.4 The first report
of GFA which made it clear that the issue of intimidation and threats
by Chaaban was one of the primary
objectives of the first
investigation, therefore justifying their urgent appointment.
The Mayor had made a
public statement on 31 October 2007, stating that charges had been
laid and complained of police inaction.
The Mayor had laid
criminal charges against Morkel and Arendse, albeit that the
Premier believed that this had been done to
pre-empt any
investigation by a commission of inquiry.
The report and
findings of the so-called “Jordaan Report”. On 08
November 2007, the Mayor had appointed Advocate
Jordaan, S.C. to
investigate the following issues:
The appointment of GFA to
investigate Chaaban.
Compliance by the City
and/or councillors with the supply chain system in procuring the
services of GFA.
The payment of GFA by the
City.
The use of public funds
for procuring the services of GFA.
Alleged
payments by the City to GFA for services rendered by it to the DA.
123.24.8 Advocate Jordaan
found no evidence of any wrongdoing by the City in respect of any of
these issues, albeit that the Premier’s
view of this report was
that his terms of reference were too narrow and he was not given
access to sufficient information. The
conclusion of the Premier was
that this report was neither conclusive, nor the “final word”
on the concerns arising
from the investigation of Councillor Chaaban
and that further investigation was required.
[124] The evidence before
the Premier was therefore of relevance and importance, and contrary
to any beliefs or concerns he held
in regard to:
124.1 The ambit and
purpose of the investigation.
124.2 That the
investigation was being carried out at the behest of the DA and not
the City.
124.3 Payments made to
GFA, deviations which had been authorised to pay them, as well as the
need for their services.
124.4 The reporting of
the matter to the SAPS.
[125] The evidence
therefore cried out for further elucidation by the one source of such
information, namely the City, by way of
appropriate enquiries
directed to the City on these issues, before the drastic step of
appointing a commission of inquiry was taken.
[126] However, the issue
of whether the Premier wilfully abstained from directing any
enquiries to the City, in the light of this
evidence, has to be
considered together with the further issues of whether he held the
suspicion that to do so would result in
doubt being thrown upon his
beliefs, and whether he harboured the ulterior motive of embarrassing
political opponents by establishing
the Second Erasmus Commission.
This is because all of these issues are linked, as they bear upon the
one enquiry, namely whether
the Premier possessed an honest belief
that good reasons existed for establishing the Second Erasmus
Commission.
This
issue however, cannot be determined until the lawfulness of two of
the Premier's main sources of information have been considered.
[127] I have made
reference above to the so-called "interim report" which is
in essence a detailed summary by the evidence
leader of the First
Erasmus Commission, of the evidence collected under the auspices of
that Commission.
[128] This so-called
"interim report" was furnished by the third respondent,
Erasmus J. to the Premier, under cover of
a letter dated 05 March
2008 which reads as follows:
"As
Chairperson of the Commission, and in consultation with my fellow
Commissioners, M/s Vermeulen and Mr. Papadakis, I have
requested the
evidence leader to prepare a progress report in which he sets out all
the work done to date as well as provide a
summary of evidence
received to date. This I have done in terms of the Commissioners'
internal arrangements, as we are entitled
to do. Advocate Petersen,
the evidence leader, has now made that report available to me, and I
now enclose under cover hereof a
copy thereof for your perusal and
records".
[129] In regard to this
"interim report" the Premier stated the following:
"I must make it
plain that I did not demand such an interim summary of the evidence,
and did not seek any opinion on the information
before the
Commission. I accepted that such evidence could only be ascribed any
probative value once it was tested in public hearings.
I understood
that the summary of evidence was a document prepared by the evidence
leader primarily for his own use, to keep track
of the burgeoning
documentary evidence before the First Erasmus Commission, and that in
any event the information had largely been
made public".
[130] The City submits
that in the light of the covering letter of Erasmus, J., together
with the content and form of the report
itself, as well as the
history of how it came about that such a report was produced, the
Premier's statement that he thought that
the "summary of
evidence was a document prepared by the evidence leader primarily for
his own use" to keep track of documentary
evidence is not the
truth.
[131]
The City submits that the evidence clearly establishes that the
Premier solicited the report and it would not have been prepared
if
he had not asked for it on the following grounds:
131.1 On 07 February 2008
the Mayor wrote to the Premier initiating dispute resolution in
respect of the City's attack on the
validity
of the First Erasmus Commission, and demanded that the proceedings be
suspended pending this process.
131.2 On 11 February 2008
the Premier requested the First Erasmus Commission to postpone its
hearings to allow him to take legal
advice.
131.3 On the same day the
Premier was reported in the press as follows:
"He
said that though the Commission's public oral hearings had been
suspended its other work including evaluating, gathering
and
pronouncing on evidence would continue. Based on what had already
been done, there was room for an interim report, an issue
he had
raised with Erasmus. "He said it is possible" Rasool said".
The
Premier did not dispute that this report was accurate.
131.4 In his letter dated
22 February 2008, sent to the Mayor, the Premier stated
"Hence, I have
suggested that the Commission furnish us with a preliminary
evaluation of the information at its disposal"
[132] In the light of the
aforegoing it is quite clear that the "interim report" was
prepared at the request of the Premier
and could by no stretch of the
imagination be regarded, even initially, as a summary of the evidence
by the evidence leader for
his own use.
[133] The City also
submits that the Commission had no business in furnishing the
"interim report" to the Premier, who
had no right to ask
for it in the first place on the following grounds:
133.1 Section 7 of the
Western Cape Commissions Act provides that a provincial commission
must report to the Premier in accordance
with its terms of reference,
or such further period as the Premier may grant. The Premier must
make the report available to the
provincial parliament. The First
Erasmus Commission was obliged to submit its report by 31 January
2008, and only one report was
contemplated.
133.2 The so-called
"interim report" is not a report as contemplated in the
Western Cape Commissions Act or the proclamation.
133.3 Paragraph 3 of the
Regulations made by the Premier provides as follows
"Every
person employed in the execution of the functions of the Commission,
including any person appointed or designated to
take down or record
the proceedings of the Commission in writing or by mechanical means,
or employed to transcribe the record so
taken down, must help
preserve secrecy with regard to any matter or information that may
come to his or her knowledge in the performance
of his or her duties
in connection with the said functions, except in so far as the
publication of such matter or information is
necessary for the
purpose of the report of the Commission".
[134] It is quite clear
that the so-called "interim report" was never intended to
be a report of the Commission in the
formal sense of the word.
[135] Paragraph 4 of the
Regulations provides as follows:
"No
person may communicate to any other person any matter or information
which may have come to their knowledge in connection
with the enquiry
of the Commission, or suffer or permit any other person to have
access to any records of the Commission, except
in so far as it is
necessary in the performance of their duties in connection with the
functions of the Commission or by order
of a competent court"
Paragraph 3 of the
Regulations, read together with Paragraph 4 quite clearly prohibits
the communication or publication of any "matter
or information"
by every person "employed in the execution of the functions of
the Commission" acquired in connection
with the enquiry of the
Commission unless such publication or communication is "necessary
for the purposes of the report of
the Commission" or "in
connection with the functions of the Commission" or "by
order of a competent court".
[136] Such prohibition
clearly applies to the members of the commission, being Erasmus J,
together with the fourth and fifth respondents,
because they are all
“employed in the execution of the functions of the Commission”.
Furthermore, the information contained
in the “interim report”
clearly came to their knowledge in the performance of their duties,
in connection with the
functions of the Commission. The publication
of this information by furnishing it to the Premier, was in no way
necessary for the
purpose of the report of the Commission.
136.1 The fact that
Erasmus J requested the evidence leader to prepare “the report”
in terms of the Commissioners’
internal arrangements, did not
obviously justify its publication to the Premier, contrary to the
provisions of the Commission’s
regulations. In the
circumstances, Erasmus J, with respect, was not entitled to, and
acted contrary to the regulations governing
the Commission, in
furnishing the information contained in the report, to the Premier.
[137] The Premier, who
promulgated the Regulations, must also, in my view, have appreciated
that his request for the summary of
evidence flew in the face of
these very Regulations, that he was not entitled to the information
requested, and his receipt of
the information was therefore unlawful.
137.1 I cannot accept
that the information detailed in the summary "had largely been
made public" as alleged by the Premier.
Even if this was the
case, it would not justify a contravention of the Regulations.
137.2 Mr. Heunis submits
that the issue of whether the receipt of such evidence was unlawful
is irrelevant, because the City did
not in its notice of motion
attack this issue and cannot now do so collaterally. In addition, the
City, after complaining in a
letter to the Premier dated 12 February
2008, that the use of such summary of evidence by the Commission
would be irregular, did
nothing further after the Premier replied by
way of his letter dated 22 February 2008, stating that the
information would be used
to assist him in deciding whether to
continue with the Commission.
137.3 In my view, these
do not constitute grounds which preclude this Court from considering
whether the receipt of this information
was unlawful. The absence of
a substantive challenge to the lawfulness of its receipt, and the
fact that the City took no formal
steps to prevent the Premier from
receiving the information, cannot preclude this Court from
considering this issue, particularly
where it is relevant to
determining the Premier’s state of mind, when establishing the
Second Erasmus Commission.
[138] Consequently, the
information contained in the summary of evidence was obtained by the
Premier unlawfully.
[139]
The second main source of information relied upon by the Premier was
the police in the form of Commissioner Petros who, during
October
2007 disclosed to the Premier information discovered at the home of
du Toit of GFA, during a search conducted at du Toit's
home.
[140] This information
included audio recordings of conversations found on du Toit's
computer, which were played to the Premier,
as well as electronic
copies of quotations and invoices from GFA.
[141] At the request of
the Premier, Commissioner Petros addressed the Provincial Cabinet on
the evidence he had shown the Premier.
Commissioner Petros did not
show the members of the cabinet the evidence, but talked them through
it. As a consequence, it was
decided that the MEC should address a
Section 106 query to the City.
[142] The City submits
that the sharing of this information by the police with the Premier,
was unlawful and this would have been
realised by any senior
political figure with a modicum of appreciation for constitutionality
and the rule of law, on the following
grounds:
142.1 A search warrant
constitutes an invasion of the individual's fundamental right of
privacy. According to the City, as alleged
in its replying affidavit,
du Toit was arrested on 20 September 2007 on suspicion of hijacking
and a warrantless search was conducted
at his home, which
Commissioner Petros attended. A further search at du Toit's home, on
a warrant issued in respect of suspected
illegal monitoring and
interception, was conducted by the Organised Crime Unit. Documents
and audio recordings were seized.
142.2 A search warrant is
issued for a purpose and in the case of du Toit, to investigate the
suspected crime of illegal monitoring.
The documents and recordings,
being the private documents and property of du Toit, could be used
for no other purpose than the
criminal investigation. In accordance
with the constitutionally mandated invasion of privacy required for
criminal investigations,
it is implicit in the search provisions of
the
Criminal Procedure Act No. 51 of 1977
that documents or articles
seized under a search warrant must be used only for the mandated
purpose.
142.3 On this basis it is
submitted that the disclosures made by Commissioner Petros to the
Premier were unlawful.
142.4 It is also
submitted that a consideration of the Constitution reveals that it
was improper of Commissioner Petros to do so.
142.4.1 The objects of
the police service are listed in Section 205(3), and do not extend to
sharing with the executive government
information seized in criminal
investigations.
142.4.2 Section 206 (3)
sets out the province's powers in respect of policing, and the
province does not have an entitlement to
receive information from the
police on specific criminal investigations.
142.4.3 Section 206 (9)
empowers the Provincial Legislature to require the provincial
commissioner to appear before it, or any of
its committees to answer
questions and in terms of Section 207 (5) the provincial commissioner
must report annually to the Provincial
Legislature.
It is submitted these
provisions are in keeping with the view that the relationship of the
police with government should be politically
neutral. If the
provincial commissioner is to give information, it should be to the
Legislature (in which all parties are represented),
not the
executive. The Premier is given no constitutional power to require a
provincial commissioner to answer his questions.
142.4.4 Section 199 (7)
provides that neither the security services, which includes the
police service, nor any of its members,
which includes Commissioner
Petros may, in the performance of their functions, prejudice a
political party interest that is legitimate
in terms of the
Constitution, nor "further in a partisan manner, any interest of
a political party".
142.5 The City has
referred us to a number of Commonwealth cases, where the need for
independence between the police and the executive,
when it comes to
criminal investigations has been emphasised.
142.6 In the case of
R v Metropolitan
Police Commissioner Ex parte Blackburn
[1968] 1 All ER 763
(CA) at
769
Lord Denning had the
following to say
"I
have no hesitation, however, in holding that, like every constable in
the land he [the Commissioner of Police] should be,
and is,
independent of the executive".
142.7 In similar vein, in
the Canadian case of
R v Campbell
[1999]
1 SCR 565
paragraph 27
is the following dictum
"The
Crown's attempt to identify the RCMP [Royal Canadian Mounted Police]
with the Crown for immunity purposes misconceives
the relationship
between the police and the executive government, when the police are
engaged in law enforcement. A police officer
investigating a crime is
not acting as a government functionary or as an agent of anybody. He
or she occupies a public office initially
defined by the common law
and subsequently set out in various statutes"
and
at paragraph 29 the following was said
"It is therefore
possible that in one or other of its roles the RCMP could be acting
in an agency relationship with the Crown.
In this appeal, however, we
are concerned only with the status of the RCMP officer in the course
of a criminal investigation, and
in that regard the police are
independent of the control of the executive government. The
importance of this principle, which itself
underpins the rule of law,
was recognised by this Court in relation to municipal forces as long
ago as
McCleave v City of Moncton
(1902) 32 SCR 106
"
.
142.8 With regard to the
conduct of the police, and in particular Commissioner Petros, in
providing to the Premier and the Provincial
Cabinet, the information
which had been obtained as a result of the searches conducted at du
Toit's home, with and without warrant,
we have been referred by the
City to the following cases.
142.9 In
Marcel v
Commissioner of Police
[1991] 1 All ER 845
(Ch)
Sir Nicholas
Browne-Wilkinson V.C. (as he then was) stated the following:
"Powers
conferred for one purpose cannot lawfully be used for other purposes
without giving rise to an abuse of power. Hence
in the absence of
express provisions the 1984 Act cannot be taken to authorise the use
and disclosure of seized documents for purposes
other than police
purposes".
142.10 In the later case
of
Morris v Director
of the Serious Fraud Office
[1993]
1 All ER 788
(Ch)
Sir Donald Nicholls V.C.
said the following at
795 (a - b)
"The
compulsory powers of investigation exist to facilitate the discharge
by the Serious Fraud Office (SFO) of its statutory
investigative
functions. The powers conferred by Section 2 are exercisable only for
the purpose of an investigation under Section
1. When information is
obtained in the exercise of those powers the SFO may use the
information for those purposes and purposes
reasonably incidental
thereto and such other purposes as may be authorised by statute, but
not otherwise. Compulsory powers are
not to be regarded as
encroaching more upon the rights of individuals than is fairly and
reasonably necessary to achieve the purpose
for which the powers were
created. That is to be taken as the intention of Parliament, unless
the contrary is clearly apparent".
142.11 These views were
followed by the High Court of Australia in
Johns
v Australian Securities Commission
[1993]
HCA 56
where Brennan J said the
following in paragraph 14
"A
person to whom information is disclosed in response to an exercise of
statutory power is thus in a position to disseminate
or to use it in
ways which are alien to the purpose for which the power was
conferred. But when a power to require disclosure of
information is
conferred for a particular purpose the extent of dissemination or use
of the information disclosed must itself be
limited by the purpose
for which the power was conferred"
and
the following was also said
"A
statute which confers a power to obtain information for a purpose
defines, expressly or impliedly, the purpose for which
the
information when obtained can be used or disclosed. The statute
imposes on the person who obtains the information in exercise
of the
power a duty not to disclose the information obtained except for that
purpose. If it were otherwise, the definition of the
particular
purpose would impose no limit on the use or disclosure of the
information. The person obtaining information in exercise
of such a
statutory power must therefore treat the information obtained as
confidential whether or not the information is otherwise
of a
confidential nature"
Dawson J agreed with this
approach, stating the following at paragraph 3 of his Judgment
"There
is also a general rule that where a body has statutory powers to
compel the provision of information to it, it should
not disclose the
information except for the purposes for which the powers were
conferred".
[143]
In the light of the aforegoing the City submits that the use by the
Premier and the MEC, of information obtained by the police
in
searches conducted at the home of duToit was unlawful.
[144] I agree with this
submission. The independence of the police in the investigation of
crime is a vital aspect of the rule of
law and the separation of
powers. The vesting of powers of search and seizure in police
officers, in terms of
Section 21
of the
Criminal Procedure Act,
encroaching
as such powers do upon the rights of individuals, have to
be exercised in a fair and reasonable manner, with the sole object of
achieving the purpose for which such powers were conferred, namely
the investigation of crime by the police. The use of information
obtained as a result of the exercise of such a power, for any other
purpose would be unlawful.
[145] If the information
obtained as a result of the searches at du Toit's home revealed the
commission of any crimes by du Toit,
or anybody else, this should
have been fully investigated by the police and then handed to the
Director of Public Prosecutions
for the appropriate action.
Such information should
not have been supplied to the executive branch of government, in the
form of the Premier, for investigation
by a commission of inquiry.
Even if such information carried an implication of maladministration
on the part of the City, in relation
to any suspected criminal
conduct, this did not justify the disclosure of what had to be
regarded as confidential information in
the hands of the police,
which had to be used for one purpose, namely the investigation and
prosecution of any crimes revealed
by its contents, by the
appropriate prosecuting authority.
Once
any criminal prosecution had been finalised, if evidence of
maladministration emerged during such process, that would be the
appropriate stage for such evidence to be handed either to the City
for disciplinary purposes, or to the MEC for possible action
in terms
of Section 106 of the Systems Act.
[146] We are advised in
the City’s heads of argument, which has not been disputed, that
du Toit has not had any charges put
to him and that the Organised
Crime Unit has stated that the case against him cannot proceed until
the findings of the Erasmus
Commission are finalised.
This is an intolerable
situation, where a private citizen has to wait for a commission of
inquiry, (which for reasons I will deal
with below, has no business
investigating the specified criminal offences), to achieve finality
in respect of criminal charges
which may or may not be preferred
against him, depending upon the outcome of the investigation of the
Erasmus Commission.
[147] The City submits
that the inference is inescapable that the conduct of Commissioner
Petros in supplying this information to
the Premier, had as its
object the furthering of the interests of the ANC in the Western
Cape, in a partisan manner and that the
Premier knew and intended
that Petros should do so. Such conduct would be a violation of the
provisions of Section 199 (7) of the
Constitution.
[148] Although I find it
strange indeed that a police official of the seniority of
Commissioner Petros, would find it necessary
to attend a raid on du
Toit's home, and I have a grave suspicion that Commissioner Petros
may have had such an objective in mind
in furnishing the information
to the Premier, I cannot on these papers, find as a fact that this
was his objective.
[149] An important point
made by the City is that a provincial commission under the Western
Cape Commissions Act, has the power
to issue
subpoenas
, but
has no power to issue search warrants, or to cause search warrants to
be issued. Consequently, the search powers of the police,
under the
Criminal Procedure Act
, which are conferred solely for the purposes
of criminal investigation by the police, have been used to provide
extensive information
to the Commission.
In
my view therefore, the furnishing by Commissioner Petros of this
information to the Premier, was unlawful and this should have
been
appreciated by an official of the seniority of the Premier.
[150] Before deciding the
issue of whether the Premier wilfully abstained from directing any
enquiries to the City, it is appropriate
in this context to deal with
the dispute as to whether the investigation of criminal offences is
an appropriate function for a
commission of inquiry.
[151]
The issue arises in the context of the terms of reference of the
Second Erasmus Commission, where possible contraventions
of the
Corruption Act are to be investigated.
[152]
The City argues that the Premier has no power to establish a
commission to investigate suspected criminal acts. In accordance
with
the argument advanced by the City as to the independence of the
police to investigate suspected criminal activities, it is
submitted
that the power to do so resides solely with the SAPS, together with
the National Director of Public Prosecutions and
the Directorate of
Special Operations.
It is submitted that it
is inconsistent to allow the Premier as a "political
functionary" to "authorise coercive
criminal
investigations" and that this opens the door to "abuse for
party political gain".
[153] The response of the
Premier and the MEC is that
153.1 The Commission will
not usurp police investigative functions. The monitoring function of
the Provincial Government of the
Western Cape in relation to local
government clearly includes an interest in potentially criminal
conduct. This is reflected in
Section 106 of the Systems Act, which
entitles the MEC to look into
inter alia
"fraud" and
"corruption".
153.2 The interest of the
Premier and the MEC is in the underlying conduct, not merely because
such action may constitute a crime,
but also because it affects
governance.
The Second Erasmus
Commission is only tasked to "advise" whether provisions
of the Corruption Act have been contravened,
not to make definitive
findings and certainly not to institute criminal proceedings or
carry out necessary functions incidental
to instituting criminal
proceedings, which is the main function of the National Prosecuting
Authority in terms of the Constitution.
[154] In my view, the
reasons advanced above in support of the principle that the police
should function independently of the executive,
when carrying out
their role of investigating crime, apply with equal force in the
present context. To vest a commission of inquiry
with the primary
task of investigating criminal conduct, is as pointed out above,
inherently undesirable as it leads to a blurring
of the functions of
the executive and the police.
154.1 In the present
case, it is quite clear, however that the power of the MEC, or the
Premier, respectively to appoint investigators,
or a commission of
inquiry in terms of Section 106 of the Systems Act, to investigate
issues of corruption and fraud in a municipality
is strictly
circumscribed, as set out above.
In my view, this also
indicates a concern on the part of the Legislature to ensure that
the circumstances under which a commission
of inquiry should be
appointed to investigate crimes of fraud and corruption, in
relation to a municipality are carefully controlled.
As pointed out
above, the object of the Legislature was to strike a balance
between the constitutional obligation imposed on
the
provinces to monitor
local government in terms of Section 155 (6) (a) of the Constitution,
and the circumstances under which the
constitutional autonomy of
local government could be impaired by a commission.
154.3 The object of the
Legislature was also, in my view, to strike a balance between the
autonomy of the police and the prosecuting
authority respectively to
investigate and prosecute crime on the one hand, and performance by
the province of the constitutional
obligation to monitor local
government, on the other.
[155] A power on the part
of the Premier to appoint a commission to investigate suspected
criminal conduct in relation to a municipality,
independently of the
provisions of Section 106 of the Systems Act, would again result in
the provisions of this Section becoming
superfluous. In such an event
the Premier would be entitled to appoint a commission to investigate
suspected criminal conduct of
whatever nature and not merely fraud
and corruption, in relation to a municipality. This would not only
intrude upon the autonomy
of the police to perform such a function,
but also the autonomy of local government.
[156]
In my view, the effect of Section 106 of the Systems Act is to limit
the power of the Premier to appoint a commission of inquiry
with
coercive powers, to
investigate only the crimes of fraud and corruption, in relation to a
municipality.
In
light of the fact that the Premier did not act in terms of Section
106 of the Systems Act, the Premier was, in addition, not
entitled to
vest the Commission with the tasks set out in Items 9, 10 and 11 of
the terms of reference of the Second Erasmus Commission.
[157] The Premier was
accordingly not entitled to task the Commission with investigating
the issues relating to the George Municipality
set out in Item 11 of
the Second Erasmus Commission.
[158] Returning now to
the issue of whether the Premier wilfully abstained from directing
any enquiries to the City, and did so
because he had a suspicion that
to do so would cast doubt upon the beliefs he held as to the grounds
for a commission of inquiry,
and harboured the ulterior motive of
embarrassing political opponents by establishing the Second Erasmus
Commission.
[159] As pointed out
above, the evidence before the Premier clearly contradicted any
concerns or beliefs he professes to have held
on the
major
issues set out in paragraph [124]
supra,
and cried out
for further elucidation by the one source of that information, being
the City, by way of appropriate enquiries directed
to the City on
these issues, before the drastic step of appointing a commission of
inquiry was taken.
[160] In addition the
Premier relied upon two main sources of information in deciding to
establish the Second Erasmus Commission,
which were unlawful. In the
case of the so-called "interim report" he must have
appreciated that the furnishing of the
information to him by the
Commission flew in the face of the Regulations he had promulgated.
In the case of the
information furnished to him by Commissioner Petros, I find it
inconceivable that an official occupying the position
of the Premier
of a province, did not appreciate that the furnishing of such
information to him was unlawful.
[161] These factors have
to be considered against the political tensions and rivalry between
the DA and the ANC in the Western Cape.
What emerges clearly from the
papers is a high degree of acrimony and mistrust between these
political opponents. The battle lines
have clearly been drawn between
the Premier and the MEC as senior members of an ANC provincial
government on the one hand, and
the Mayor of the City who is the DA's
national leader, and the leader of a DA-led coalition which governs
the City, on the other.
The prize in this contest is control of the
City, which was previously led by the ANC.
[162] What also has to be
considered is what the Premier and the MEC, maintain was the true
purpose of the Second Erasmus Commission.
Mr. Rogers submits that
in this regard a distinction has to be drawn between
what
it was the Premier supposedly wanted to find out and
why
he wanted to find it out. When the Premier refers to his “concerns”
and “suspicions” he is identifying
the “what”.
When dealing with the allegation that the Premier possessed an
ulterior motive, the focus is ultimately
on the “why”.
As pointed out above,
in my view, it is vital that there be a rational connection between
the decision of the Premier to appoint
a commission and some
envisaged action to be taken as a consequence by the Premier, or
the provincial government, in respect
of the particular
municipality. The object is to inform the Premier with regard to
future lawful action, which he could rationally
take.
It is submitted that
the Premier cannot lawfully establish a commission to investigate
“concerns” as an end in itself,
as that would
be purposeless and
irrational. The Premier has said that intervention in terms of
Section 139 was not the purpose, but that other
valid responses
could
be to use the Commission’s report to ask the City to take
disciplinary action against councillors or officials, or simply
hand
it to the City for it to decide what further course of action to
follow.
It is submitted that
the City has alleged what the Premier’s improper purpose was,
but the Premier, apart from denying
the allegation, has not
positively stated what his purpose was, other than to state that it
was not to assess possible Section
139 intervention.
It is submitted that
the establishment of a commission without any actual purpose in
mind would be irrational and not authorised
by Section 127 (2) (e)
of the Constitution.
Mr. Rogers then submits
that if one elevates what the Premier has said “could”
be the purpose of the Second Erasmus
Commission, to an assertion of
the Premier’s actual purpose, i.e. an assertion as to “why”
the Premier wanted
to find out the “what” two questions
arise.
162.6.1 Would these
purposes, if true, be rational and lawful purposes?
162.6.2 Should the
Premier be believed that these
were
his purposes?
As regards the first
question posed, it is submitted that it reveals no action the
Premier could take. The said purposes reveal
that the
Premier
was undertaking a coercive investigation for the
City’s
benefit, so that the
City
could act on the report. It
is submitted that this is not a rational and lawful purpose,
particularly as the City has not requested
“assistance”.
Regard being had to the
autonomy of municipalities, it is no function of the Premier to
require, or even ask a municipality,
to take disciplinary action
against its officials and councillors.
As regards councillors,
the scheme of the Systems Act and the Code, read within the
framework of Section 41 of the Constitution,
is that the MEC may
investigate a councillor’s conduct in terms of Item 14 (4) of
the Code, but only in response to a
request from the municipal
council to remove the councillor. If the council fails to take
action against the councillor, and
if the MEC has reasonable
grounds for believing this failure to constitute serious
maladministration, the MEC may be entitled
to have recourse to
Section 106.
Van Wyk v Uys NO
2002 (5) SA 92
(C) at 98 D – 100C
The legislative scheme is
entirely inconsistent with the use of a provincial commission to
uncover facts relevant to possible disciplinary
proceedings by a
municipality against the councillor.
162.10 As regards
possible misconduct by and disciplinary action against officials,
this is dealt with in Item 14 and 14A of Schedule
2 to the Systems
Act, read with Section 67 (1) (h) of the Act. As appears from these
provisions, discipline in relation to staff
is an internal matter.
It is submitted that
the use by the Premier of a coercive commission to establish
possible misconduct on the part of councillors
and staff, with a
view to getting the municipality to take action against councillors
and staff, is likely to violate the obligation
of natural justice
(which in the case of councillors, the council must observe in
terms of Item 14 (7) of the Code) and fair
labour procedures (which
in relation to officials, the municipality is obliged by Section 67
(1) and (2) of the Systems Act
to observe.)
It is submitted that a
provincial commission established by an outsider, being the
Premier, simply has no place in the municipal
disciplinary process,
and its establishment might, far from assisting the municipality,
make it impossible for the municipality
to take fair action against
the councillor or official.
The second question
posed is whether, if these purposes are rational, they can be
believed. The alternative, it is submitted,
is that the Premier had
the improper purpose alleged by the City, or no rational purpose at
all.
162.14 It is submitted
that the factual basis for the Premier’s version is virtually
non existent, as he has not actually
asserted that the “other
valid responses” were in mind when he established the
Commission.
I agree with the
submission that if the Premier’s purpose in establishing the
Second Erasmus Commission, was purely to
use the Commission’s
report to ask the City to take disciplinary action against
councillors or officials, or simply hand
the report to the City to
decide what to do, this would not, for the reasons set out above,
be a rational or a lawful purpose.
In addition the Premier does not
positively assert that this was in fact his purpose, he merely says
the report “could”
be used for this purpose.
I agree with the
submission that it is scarcely credible that the Premier could have
believed that the expense of the Commission,
and the political
tension it would cause, was justified merely to obtain a report
which the Premier could then pass on to the
City, to do with it as
it saw fit.
What then was the
Premier’s purpose? If due regard is paid to the above
factors, namely, evidence the Premier was aware
of which
contradicted concerns or beliefs he professed to hold on major
issues, his reliance upon two sources of information
which he must
have appreciated was unlawful, as well as the political background
against which the Commission was established,
as well as the
absence of any credible purpose advanced by the Premier for
establishing the commission, I am driven to the
conclusion that his
purpose was the improper one of embarrassing political opponents
and more specifically the DA.
Finding that the
Premier possessed such an improper purpose also leads to the
reasonable inference that the Premier therefore
wilfully refrained
from directing enquiries to the City, because he had a suspicion
that to do so, would cast doubt upon the
beliefs or concerns he
professed to hold, as to the grounds for a commission of inquiry.
For what other possible reason would
he refrain from doing so when,
as I have found, the evidence he had before him cried out for
further elucidation by the one
source of that information, namely
the City? The evidence he had before him, which contradicted his
beliefs, did not reasonably
call for elucidation by way of a
commission of inquiry, but by way of reasonable enquiries directed
to the City. As I have
pointed out above, such enquiries would have
resulted in any reasonable concerns on his part being addressed.
The Premier’s
contention that he acted for what he believed were good reasons is
accordingly rejected as being clearly
untenable.
[163] The Premier
therefore did not possess an honest belief that good reasons existed
for establishing the Second Erasmus Commission
and possessed such an
ulterior motive. As a result his decision was not rationally related
to the purpose for which the power was
conferred, was arbitrary and
therefore unlawful. Consequently, the decision of the Premier to
establish the Second Erasmus Commission
falls to be set aside.
[164]
Even if the issue of whether the Premier wilfully failed to make
enquiries is ignored, and the enquiry is directed at establishing
whether the evidence available to the Premier showed that objective
reasonable grounds existed for a belief by the Premier that
he had
good reason for establishing a commission and if not, whether it is
established that the Premier did not hold an honest
belief that such
grounds existed, the same conclusion is reached.
[165] As pointed out
above, the evidence available to the Premier contradicted any
concerns or beliefs he professes to have held
on the major issues set
out in paragraph [124]
supra
.
165.1 In the face of this
evidence there could be no reasonable grounds for the Premier
continuing to harbour such concerns, or
hold such beliefs.
165.2 The absence of
reasonable grounds, when considered together with the Premier’s
reliance upon two unlawful sources of
information, is cogent evidence
that he did not hold an honest belief, that reasonable grounds
existed for establishing the Second
Erasmus Commission.
165.3 When the absence of
an honest belief on the part of the Premier is considered, together
with the evidence of the political
rivalry and antagonism between the
ANC and the DA in the Western Cape, and the competing claims of these
political parties respectively
to regain and retain control of the
City of Cape Town, as well as the absence of any credible purpose
advanced by the Premier for
establishing the Commission of Inquiry,
his only motive on the evidence in establishing the Second Erasmus
Commission, must have
been to embarrass or discredit political
opponents, particularly the DA.
165.4 On this basis
again, the Premier’s contention that he acted for what he
believed were good reasons falls to be rejected
as clearly untenable.
[166] On this alternative
approach the Premier's decision again falls to be set aside as
unlawful, as it was not rationally related
to the purpose for which
the power was conferred and was arbitrary.
Was the appointment of
a serving judge to chair the Second Erasmus Commission, incompatible
with the separation of powers and therefore
unlawful and invalid?
[167] Turning to the
final substantive challenge raised by the City and the DA as to the
lawfulness of the establishment of the
Second Erasmus Commission. In
the light of the conclusions I have reached in regard to the other
substantive challenges raised
it would appear unnecessary to do so. I
will however, in the light of the views of the Constitutional Court
expressed in the case
of
S v Jordan and others
(Sex Workers Education and Advocacy Task Force and others as Amici
Curiae) 2002(6) SA 642 (CC) at para 21.
[168] It was stated that
where the constitutionality of a provision is challenged on a number
of grounds and the Court upholds one
such ground, it is desirable
that it should also express its opinion on the other challenges. This
was necessary in the event of
the Constitutional Court declining to
confirm on the ground upheld by the High Court. In the absence of the
judgment of the High
Court on the other grounds, the proper course to
follow may be to refer the matter back to the trial Court, so that it
can deal
with the other challenges. This could result in unnecessary
delay in the disposal of a case. Although the constitutionality of a
particular “provision” is not under scrutiny in the
present case, I consider the Constitutional Court’s reasoning
of equal relevance in the present case, should the conclusions I have
reached come under scrutiny by that Court.
[169]
The challenge raised is that the appointment of a serving judge to
chair the Second Erasmus Commission was incompatible with
the
separation of powers ordained in the Constitution and therefore
unlawful and invalid.
[170]
The starting point for a consideration of this challenge must be the
decision of the Constitutional Court in the case of
SA Association of
Personal Injury Lawyers v Heath
2001(1)
SA 883 (CC)
which
dealt with the constitutional compatibility of the appointment of a
High Court judge, to lead a special investigation unit,
established
in terms of the
Special Investigating Units and Special Tribunals Act
74 of 1996
.
[171]
In this case the Constitutional Court stated :
171.1
That there can be no doubt that the Constitution provides for a
separation of powers (at 897B).
171.2 The separation of
the Judiciary from the other branches of government is an important
aspect of the separation of powers required
by the Constitution and
is essential to the role of the courts under the Constitution (at
898G).
171.3 Parliament and the
provincial legislatures make the laws but do not implement them. The
national and provincial executives
prepare and initiate laws to be
placed before the legislatures, implement the laws thus made, but
have no law-making power other
than that vested in them by the
legislatures. Although Parliament has a wide power to delegate
legislative authority to the Executive,
there are limits to that
power (at page 898G).
171.4 Under our
Constitution it is the duty of the courts to ensure that the limits
to the exercise of public power are not transgressed.
Crucial to the
discharge of this duty is that the courts be and be seen to be
independent (at page 899A).
171.5 The separation
required by the Constitution between the Legislative and Executive,
on the one hand, and the courts, on the
other, must be upheld,
otherwise the role of the courts as an independent arbiter of issues
involving the division of powers between
the various spheres of
government, and the legality of legislative and executive action
measured against the Bill of Rights and
other provisions of the
Constitution will be undermined (at page 899 B).
171.6 The principle of
separation of powers is not necessarily compromised whenever a
particular judge is required to perform non-judicial
functions. The
performance of functions incompatible with judicial office would
however not be permissible (at page 899 E).
171.7 Criteria which are
relevant to considering whether or not under our Constitution, it is
permissible to assign a non- judicial
function to a judge, are
whether the performance of the function :
171.7.1 Is more usual or
appropriate to another branch of government
171.7.2 Is subject to
executive control or direction
171.7.3 Requires the
judge to exercise a discretion and make decisions on the grounds of
policy rather than law
171.7.4 Creates a risk of
judicial entanglement in matters of political controversy
171.7.5 Involves the
judge in the process of law enforcement
171.7.6 Will occupy the
judge to such an extent that he or she, is no longer able to perform,
his or her usual judicial functions
(at page 899 H – 900 B).
171.8 These criteria
should be given a weight appropriate to the nature of the function
that the judge is required to perform and
the need for that function
to be performed by a person of undoubted independence and integrity
(at page 900 D).
171.9 It is undesirable,
particularly at this stage of the development of our jurisprudence
concerning the separation of powers
to lay down rigid tests for
determining whether or not the performance of a particular function
by a judge is, or is not, incompatible
with the judicial office (at
page 900 E).
171.10 The question in
each case must turn upon considerations such as those set out above
and possibly others, which come to the
fore because of the nature of
the particular function under consideration (at page
900 F).
171.11
Ultimately the
question is one calling for a judgment to be made as to whether or
not the functions that a judge is expected to
perform are
incompatible with the judicial office and, if they are, whether there
are countervailing factors that suggest that
the performance of such
functions by a judge, will not be harmful to the institution of the
Judiciary, or materially breach the
line that has to be kept between
the Judiciary and the other branches of government in order to
maintain the independence of the
Judiciary (at page 900 F – G).
171.12 In dealing with
the question of judges presiding over commissions of inquiry much may
depend on the subject matter of the
commission. In appropriate
circumstances judicial officers can no doubt preside over commissions
of inquiry without infringing
the separation of powers. The
performance of such functions ordinarily calls for the qualities and
skills required for the performance
of judicial functions –
independence, the weighing up of information, the forming of an
opinion based on information and
the giving of a decision on the
basis of a consideration of relevant information (at page 901 F –
902 A).
[172] What should be
noted at the outset is that in determining whether or not a
particular judicial function by a judge, is incompatible
with the
judicial office depends upon the outcome of two enquiries namely :
172.1 Is the function in
all of the circumstances, objectively assessed incompatible with the
judicial office
172.2 Is the function of
“such a nature that public confidence in the independence or
impartiality of a judge to carry out
judicial functions is
threatened” – as stated by McHugh J in the High Court of
Australia in
Grollo v Palmer
[1995] HCA 26
;
(1995) 184 CLR 348
at paras 21 - 23
[173] McHugh J in
Grollo
’s case supra, at para 22 also had the following
to say “In determining whether incompatibility exists, the
appearance
of independence and impartiality is as important as its
existence. It is trite to say that justice must not only be done but
must
be manifestly seen to be done.”
[174] Activities which
are incompatible with the judicial function “… could
‘sap and undermine’ both the
reality and the appearance
of the independence of the Judicature which is made up of the courts
constituted by individual Judges.”per
Kirby J in the High Court
of Australia case of
Wilson v Minister for
Aboriginal and Torres Strait Islander Affairs
(1996) 189 CLR at
44 – 45
quoted with approval by
the Constitutional Court in
Heath
’s case supra at page
904 H. Similar sentiments were expressed in Canada in the case of
Ell v Alberta
2003 SCC 35
;
[2003] 1 SCR 857
at para 2 – 23
where Major J stated
“
A
separate, but related, basis for independence is the need to uphold
public confidence in the administration of justice. Confidence
in our
system of justice requires a healthy perception of judicial
independence to be maintained amongst the citizenry. Without
the
perception of independence, the judiciary is unable to ‘claim
any legitimacy or command the respect and acceptance that
are
essential to it.’”
Closer to home and in
similar vein, in the case of
Van Rooyen v de Kok NO
and others
2003(2) SA 317 (T) at 323
D – E
Bosielo J said
“
In
my view, it is imperative that in every modern democratic society,
particularly ours which is still relatively young and nascent,
that
the Judiciary as a whole must not only claim, or purport to be, but
must manifestly be seen to be truly independent. I venture
to say
that the attributes of judicial independence and impartiality lie at
the very heart of the due process of the law.
”
[175] The importance of
the appearance of the independence of the judiciary in this context,
is graphically illustrated again by
the words of Kirby J in
Wilson
’s
case where he said the following :
“
…
the
Executive may not borrow a Federal Judge to cloak actions proper to
its own functions with the ‘neutral colours of judicial
action’
”
.
[176] Having found that
the Premier did not possess an honest belief that good reasons
existed for establishing the Second Erasmus
Commission, and acted
with the ulterior motive of embarrassing political opponents, these
words assume even greater significance
on the facts of this case. In
this context I find the inference irresistible that one of the
reasons why the Premier appointed
a judge to chair the commission,
was in order to cloak his ulterior motive with the neutral colours of
the judicial office.
177.1 A finding that the
Premier appointed a judge to chair the commission with such an
ulterior motive, in my view, would be sufficient
grounds to set aside
the appointment as not being in accordance with the constitutional
principle of legality. The Premier’s
decision to appoint a
judge to chair the commission again would not be rationally related
to the purpose for which the power was
conferred upon the Premier, in
terms of section 1(1)(e) of the Western Cape Provincial Commissions
Act 10 of 1998. The decision
would be arbitrary and unlawful and fall
to be set aside as such. For the sake of completeness I will
nevertheless deal with the
challenge raised on the grounds that the
appointment of a judge was incompatible with the doctrine of
separation of powers.
177.2 I wish to make it
absolutely clear that I do not suggest that Erasmus J was in any way
a party to such conduct, but what this
starkly illustrates is the
care which must be exercised by any judge, in deciding whether or not
to accept an appointment to chair
a commission, at the behest of a
representative of the executive.
[178] Before accepting an
appointment to chair a commission of enquiry a judge would have to be
satisfied, after carefully examining
the subject matter of the
commission, as set out in the terms of reference, that the functions
he or she is called upon to perform,
are not incompatible with his or
her judicial office. In doing so regard would have to be paid to the
criteria of the Constitutional
Court, as set out in para 171.7 supra,
as well as any others which may come to the fore, because of the
nature of the particular
function under consideration. If such
functions are incompatible then I would, with respect submit that,
any countervailing factors
that suggest that the performance of such
functions will not be harmful to the institution of the Judiciary (as
alluded to by the
Constitutional Court in
Heath
’s case
supra at page 900 F – G), would have to be of a compelling
nature, to justify participation in the functions
of the commission.
[179] In addition, a
Judge would have to be satisfied that his or her participation in
such a commission was not of “such
a nature that public
confidence in the independence or impartiality” of the judge to
carry out his or her judicial functions
is threatened. (
Grollo
’s
case supra at paras 21 – 23)
[180] In order to assess
this aspect, I with respect, agree with the following dicta of McHugh
J in
Grollo
’s case supra at paragraph 22.
“
When
a person who holds judicial office contemporaneously exercises
executive power as persona designata, members of the public
may have
great difficulty in seeing any separation of those functions. The
greater the association between the judicial status
of the persona
designata and the executive functions that he or she performs, the
greater is the likelihood that the judicial and
non-judicial
functions of that person will seem to be fused. In that situation, it
is likely that members of the public will fail
to distinguish between
the judicial functions of the judge and the executive function of
that person as persona designata and will
conclude that the judge is
neither independent of the executive government, nor impartial when
dealing with actions between the
citizens and the government and its
agencies.”
181.1 The following
dictum at para 23 is also apposite :
“
If
therefore, reasonable people, not trained to discover ‘distinctions
without differences’ might reasonably apprehend
that the
functions undertaken by a judge as persona designata impaired his or
her ability to carry out judicial functions or conflicted
with the
judge’s independence or impartiality, those non-judicial
functions cannot constitutionally be invested in a person
who is a
member of a federal court
.”
181.2 In the context of
assessing whether the requirements for judicial independence of the
courts had been satisfied, the Constitutional
Court formulated the
test of whether they were independent in the eyes of the reasonable
person observing the conduct of the courts
and added the following :
“
In
the circumstances prevailing in the RSA this observer had to be
sensitive to the complex social realities of the RSA, in touch
with
the evolving pattern of constitutional development and guided by the
Constitution, its values and the distinction it draws
between
different courts
.”
Van Rooyen and others
v S and others (General Council of the Bar intervening)
2002(8) BCLR 810 (CC) at
812 A – B
[182] In my view the test
is therefore objective ie would a reasonable member of the public,
not trained to discover “distinctions
without differences”
reasonably apprehend that the participation of the judge in the
commission would impair his\her ability
to carry out judicial
functions, or conflict with the judge’s independence or
impartiality.
[183] Depending upon the
subject matter of the particular commission and its terms of
reference it may be no easy task for a judge
to satisfy him or her
self, after examining both aspects of the enquiry, that his or her
participation in such a commission, would
not be incompatible with
the judicial office and not threaten public confidence in his or her
ability to carry out judicial functions.
[184] With great respect
to the views of the Constitutional Court, that judges may in
“appropriate circumstances” preside
over commissions of
inquiry without infringing the separation of powers, the problem lies
in deciding in any particular case whether
it is “appropriate”
for a judge to involve him or her self, in the particular commission.
The facts of the present
case starkly illustrate the problem. As will
become apparent in this judgment the City and the DA contend that the
appointment
of Erasmus J contravenes the guidelines laid down by the
Constitutional Court in
Heath
’s case supra, namely,
there is a risk of judicial entanglement in matters of political
controversy, the judge will be involved
in the process of law
enforcement and the function to be performed is more appropriate to
another branch of government. This however
is hotly disputed by the
Premier.
[185] Regardless of the
outcome of this dispute, the unsavoury fact remains that a dispute as
to the suitability of a judge to chair
a commission rages between
senior members of different levels of the executive branch of
government, being on the one hand the
Mayor of the City of Cape Town
and on the other the Premier of the Western Cape. The situation is
aggravated by the fact that they
are political opponents. My abiding
concern is that the ultimate loser in this dispute, will be the
administration of justice,
in the form of a loss of confidence on the
part of the general public, in the independence of the judiciary
[186] The Constitutional
Court has emphasized in
Heath
’s case supra, the vital
role to be played by a judiciary which is independent and seen to be
so, in ensuring that the limits
placed upon the exercise of public
power by the executive are not transgressed. The Constitutional Court
has also stated that it
is undesirable at this stage of our
jurisprudence concerning the separation of powers to lay down rigid
tests for determining whether
the performance of a particular
function by a judge is, or is not incompatible with the judicial
office.
[187] With great respect
to the views of the Constitutional Court, it seems to me that at this
early stage of our fledgling democracy,
and with the vital object of
preserving public confidence in the independence of the judiciary,
active judges should as a matter
of principle, not chair commissions
of inquiry. This would eliminate the risk of judges becoming
embroiled in disputes such as
the present and the need to define in
what circumstances a judge could “appropriately” chair a
commission of inquiry.
[188] The fact that
presiding over a commission of inquiry calls for qualities and skills
possessed by judges and identified by
the Constitutional Court as
independence, the weighing up of information, the forming of an
opinion based on the information and
the giving of a decision on the
basis of a consideration of relevant information, does not with great
respect, render the performance
of such a role the sole preserve of
active judges. Active judges do not possess a monopoly over these
attributes, which in my experience,
are possessed in equal measure by
many senior members of the legal profession, both at the Bar and the
Side Bar.
[189] The words of Edwin
Cameron, uttered in the pre-constitutional era and before his
elevation to the bench are still apposite
today :
“
The
use of judges to sit on commissions of enquiry has long been a
controversial aspect of South African political life. It is often
suspected that commissioners are selected to make findings and
recommendations which would suit the government. When judges are
used
in this process the discrediting effect on the judicial system is
severe.”
Edwin Cameron, Nude
Monarchy : The Case of South African Judges
(1987) 3 SAJHR 338
at 342
[190] I find it of
significance that in Australia, according to Professor Gerard Carney,
writing in The Constitutional Systems of
the Australian States and
Territories (Cambridge University Press 2006) at page 367
“
Although
the joint majority [in Wilson supra] indicated that the appointment
of federal judges to head royal commissions and non-judicial
bodies
such as the Administrative Appeals Tribunal is not necessarily
incompatible because they are required to act independently
or
judicially,
Wilson
has dissuaded the Commonwealth Executive
from appointing federal judges to persona designata positions
.”
[191] Mr Rogers submits
that the development of a more appropriate sensitivity to the strict
maintenance of the constitutional separation
of judicial and
executive function in Australia, is also testified to in the
following remarks of De Jersey CJ, of the Queensland
Supreme Court,
in an address to the Samuel Griffith Society, in which the Chief
Justice was addressing the consequences for the
judiciary of the
separation of powers.
“
There
are two other particular avenues of departure from the strictly
judicial core function which should I suggest, be approached
with
care. The first is involvement of Judges in Commissions of Inquiry.
Generally speaking this will not create conflict with
Chapter III and
so much was confirmed in Wilson’s case. Nevertheless the issue
can be of concern, in the general context
I have been advancing. For
many years – indeed since 1987 – the Judges of the
Supreme Court of Queensland have proceeded
on the basis it would be
inappropriate for a serving Judge to accept a position to head a
Commission of Inquiry conducted under
the auspices of executive
government. The rationale for that view has been the recognition that
the core function of the judiciary
is the determination of matters in
court, by the delivery of judgments enforceable by process of law,
and the fundamental importance
of preserving the confidence of the
public in the judiciary’s discharge of that function, which
could be impaired were Judges
to be unnecessarily involved in the
political controversy which often surrounds such inquiries. A similar
approach has for a long
time been taken by the Supreme Court of
Victoria
.”
[192] I, with respect,
agree with the views of Chief Justice de Jersey. As will become
apparent later in this judgment, the facts
of this case starkly
highlight the rationale advanced by the Chief Justice why Judges
should not be involved in Commissions of
Inquiry. Simply put, the
involvement of Erasmus J in the Commission has unnecessarily involved
the judge in the political controversy
surrounding the commission,
which may damage the confidence of the public in the judiciary’s
core function of determining
matters in court.
[193] Mr Heunis however
cautions that reference to foreign authorities is an exercise in
legal transplantation, which is inevitably
fraught with danger. This
is so he submits as the Constitutional Count pointed out in
De Lange v Smuts N O
1998(3) SA 785 (CC) at para 60
that our courts would
over time develop a distinctly South African model of separation of
powers.
[194] In my view however,
the core function of the judiciary, in any jurisdiction, is as set
out above. A loss of public confidence
in that function carries the
same serious consequences. In addition, the approach to be adopted in
deciding whether a particular
task is incompatible with the judicial
function is the same. The views of a reasonable member of the public
on this issue, are
also given consideration. In addition, the
rationale advanced for judges not to chair commissions of inquiry, is
equally valid.
[195] Before turning to
the substantive challenges raised as to the appointment of a judge to
chair the commission, I must initially
deal with the issue of whether
any challenge is raised by the City or the DA as to the personal
suitability of Erasmus J to chair
the commission.
[196] Mr Heunis submits
that a challenge is raised on this basis for the following reasons.
196.1 It is a matter of
public record that the Mayor has publicly stated that Erasmus J is
“one of those Judges who allows
himself to be used”.
196.2 The Mayor in the
City’s replying affidavit states that the expanded terms of
reference of the Second Erasmus Commission
“
points
strongly in support of my description of the exercise as nothing more
than the provision of an ostensibly respectable vehicle
for a
political witch-hunt
.”
and
also that Erasmus J is
“
an
individual who prior to his appointment to the Bench was an actual
member of the ANC
.”
196.3 The Mayor in the
City’s replying affidavit states that her position with regard
to the appropriateness of Erasmus J
continuing to chair the
Commission, if it is to proceed, is renewed.
[197] Mr Rogers’
response to this is to deny that the Mayor in her replying affidavit
launched an attack on Erasmus J personally.
He submits that it has
never been the City’s case in these proceedings, that Erasmus J
is precluded from being the chairperson
because he was previously a
member of the ANC. The point was a general one concerning the
propriety of appointing judges at all.
The reference to Erasmus J’s
prior membership of the ANC was raised specifically not as a
criticism of the judge, but as
a factor relevant to the Premier’s
state of mind ie the choice he made because he thought he would
achieve a favourable outcome.
[198] At the hearing of
the matter I asked Mr Rogers whether there was any challenge raised
as to the suitability of Erasmus J to
chair the commission and he
replied there was not. There is consequently no challenge before me
on this basis which needs to be
addressed.
[199] The first challenge
raised by the City and the DA is that the appointment of a judge to
chair the commission raises the risk
of judicial entanglement in
matters of political controversy, being one of the criteria
enunciated by the Constitutional Court
in
Heath
’s case
for deciding whether the function was incompatible with the judicial
office.
[200] Mr Rogers submits
that the basis for paragraphs 1 and 3 of the terms of reference of
the Second Erasmus Commission are predicated
on the Premier’s
professed suspicion that the Speaker’s investigation of Chaaban
was improperly politically driven
by the DA and that it entailed the
City footing the bill for the DA’s private intelligence
operation. That these suspicions
are nurtured by the Premier as the
head of the ANC controlled provincial executive, against senior
office bearers in the opposition
DA party, which with its coalition
partners governs the City, starkly illustrates the political
dimension to the investigation.
The party political dimension of the
matters referred to the Second Erasmus Commission inheres regardless
of whether the Premier’s
suspicions are well-founded or not.
The political significance inherent in any findings made in respect
of the matters described
in paragraphs 6, 7, 9, 10, 11 and 12 of the
terms of reference is axiomatic.
[201] The response of Mr
Heunis is that the terms of reference are neutral, even though the
political backdrop is not and this is
no different to any case
involving political parties before a court of law.
[202] The important
crucial difference however is that we are not dealing with a court of
law, but whether the function to be performed
by a judge as
chairperson of the commission is “appropriate” and
compatible with the judicial office. The subject matter
of the
commission quite clearly focuses on the conduct of the DA and its
office bearers. By no stretch of the imagination can the
terms of
reference, referred to above, be described as neutral. They are quite
plainly political in nature. In addition, it emerges
clearly from the
papers that even before the appointment of the First Erasmus
Commission, the public debate concerning the issues
which were later
to be investigated by the First and thereafter the Second Erasmus
Commission, were overtly political.
[203] It is therefore
quite clear that the appointment of a judge to chair the commission
created the risk of judicial entanglement
in the matters to be
investigated which were politically controversial. In addition, a
reasonable member of the public viewing
the appointment of a judge to
chair the commission, having due regard to the subject matter to be
investigated, would reasonably
apprehend that the participation of a
judge would conflict with the judge’s independence or
impartiality. As submitted by
Mr Rosenberg , who together with Mr
Katz, appeared for the DA, the appointment of a judge was highly
susceptible to creating the
perception that the executive was
“pulling the judiciary over to its side against a potential
enemy”. That the government
would want to use judges for their
purposes is one matter but that judges should allow themselves to be
so used is quite a different
one. Once the judges have made their
recommendations they have no power to enforce them or even to prevail
upon government to reveal
them to the public at large. The notion of
being used by the executive in this way is anathema to the judicial
calling and is the
very antithesis of the separation of powers.
[204] The next
substantive challenge raised by the City and the DA to the
appointment of a judge to chair the commission, is that
the judge
will become involved in the process of law enforcement being one of
the criteria mentioned by the Constitutional Court
in
Heath
’s
case supra.
[205] In
Heath
’s
case supra at para 44 H the Constitutional Court referred with
approval to the following passage in
Wilson
’s case supra
“
It
is not compatible with the holding of federal judicial office in
Australia for such an office holder to become involved as ‘part
of the criminal investigative process’ closely engaged in work
that may be characterized as an adjunct to the investigating
and
prosecutory functions
.”
[206] The Second Erasmus
Commission is tasked with advising the Premier on whether
contraventions of the Prevention and Combating
of Corrupt Activities
Act 12 of 2004 have occurred.
[207] The Premier states
in his answering affidavit the following
“
I
remain convinced that the best way to do this is through a commission
with power to summon witnesses and require documents to
be produced
.”
[208] This power is found
in section 3(1)(a) of the Western Cape Commissions Act No 10 of 1998,
in terms of which a subpoena is
authorised by the Commission and
issued and signed by the secretary to the commission.
[209] In this regard the
words of Le Bel J in the Canadian Supreme Court case of
In re Application
under S 83.28 of the Criminal Code
2004 SCC 42
;
[2004] 2 SCR 248
at para 185
are apposite.
“
In
my view, a reasonable, well-informed person could conclude that the
purpose of having a judge at such an investigation is to
help the
executive branch compel the witness to answer questions. The
judiciary’s symbolic and legal weight will assist the
police in
their investigations. The judiciary will then no longer be playing
the role of an independent arbiter
.”
[210] In a related
challenge it is also submitted by the City and the DA that the judge
lead commission, tasked as it is with advising
whether contraventions
of the Corruption Act have occurred trenches upon the role of the
investigating directorates, established
under Chapter 5 of the
National Prosecuting Authority Act 32 of 1998
, as well as the power
of the National Director of Public Prosecutions. The investigation of
“fraud, corruption, maladministration,
serious malpractices and
other unlawful conduct” by the Second Erasmus Commission, it is
submitted, is a function which under
section 179 of the Constitution
falls within the powers of the National Director of Public
Prosecutions.
[211] I find it
unnecessary to enter the debate, set out in the heads of the City and
the Premier, as to whether and to what extent,
the functions and
powers of Special Investigating Units established in terms of the
Special Investigating Units and Special Tribunals Act No 74 of 1996
,
are reflected in the functions of the Erasmus Commission and the
enabling provisions of the Western Cape Commissions Act. This
is
because I agree with the submission of Mr Rogers that in the
circumstances the Premier has used a commission of enquiry to fulfil
roles specifically provided to be undertaken by identified
independent and appropriately qualified executive organs, established
in terms of the Constitution.
[212] I also agree with
the submission of Mr Rosenberg that the argument goes beyond imbuing
a judge with executive functions and
transports the judge into the
realm of the prosecuting authority. Apart from effectively furnishing
a judge with prosecutorial
powers, which is a gross violation of the
principle of separation of powers, it further enables a member of the
executive to usurp
investigative and prosecutorial powers through his
tool, the judge-led commission.
[213] I am therefore
satisfied that the appointment of a serving judge to chair the Second
Erasmus Commission was incompatible with
the separation of powers and
therefore unlawful and invalid.
[214] Two further aspects
which arose in argument must be dealt with. The first concerns the
procedure which was adopted by the
Premier in appointing Erasmus J.
It is common cause that the Premier invited Erasmus J to chair the
commission. In the Premier’s
answering affidavit he states that
before establishing the Erasmus Commission he obtained the permission
of the Judge President
of the Cape High Court, as well as the
Minister of Justice and Constitutional Development, that Erasmus J
would be released from
his current judicial duties to chair the
commission.
[215] In my view, such a
procedure is inherently undesirable because it is the representative
of the executive who chooses the judge
concerned. Such a procedure
can lead to suspicion that the judge was chosen because the executive
believed he or she would make
findings and recommendations, which
would suit the government. The correct procedure would be for the
representative of the executive
to approach the Judge President of
the relevant division of the High Court and request that he provide a
judge from his division
to chair the commission. The Judge President
would then select a judge, due regard being had to the nature of the
commission and
the particular attributes and experience of the
members of his\her bench. The Judge President could in consultation
with the other
members of his bench also determine whether in all the
circumstances, it was appropriate for a judge to chair the commission
concerned.
[216] A further aspect is
that we were informed that the First Erasmus Commission conducted its
sittings in a courtroom of the Cape
High Court. I again regard such a
process as inherently undesirable, as it only serves to further blur
the distinction between
a judge performing his judicial functions and
his functions as a commissioner, in the eyes of a reasonable member
of the public.
[217] As regards the
issue of costs we were informed by Counsel that the City and the DA
had brought two interdict applications
when the Second Erasmus
Commission was threatening to proceed. The costs of these
applications were reserved. Counsel were agreed
that the costs of
these applications should be costs in the cause. There was no debate
that the number of Counsel employed by each
of the parties was
inappropriate and no submissions were made to us in that regard.
Indeed the matter is complex, vast and of importance
to all
concerned. In my view there can be no quarrel with the number of
counsel engaged by each of the parties.
I propose that the
following order be made : :
1. Proclamation 5\2008
published in Provincial Gazette Extraordinary 6510 on the 19
th
March 2008, which established the Second Erasmus Commission, is
declared to be inconsistent with the Constitution and invalid.
2. The conditional
counter application of the First and Second Respondents is dismissed.
3. The First and Second
Respondents are ordered, jointly and severally, to pay :-
3.1 The costs of the
Applicant and the Intervening Party, such costs to include in the
case of the Applicant, the costs of three
counsel and in the case of
the intervening party, the costs of two counsel.
3.2 The costs of the
Applicant and the Intervening Party in opposing the conditional
counter application, brought by the First and
Second Respondents.
3.3 The costs of the
Applicant and the Intervening Party in the two previous interdict
applications.
_________________
SWAIN
J
I agree and it is so
ordered.
_________________
NICHOLSON
J
Counsel
for the Applicant : Owen Rogers SC
Ashley Binns-Ward SC
Ncumisa Mayosi
Counsel for the
Intervening Party : S P Rosenberg SC
Anton Katz
Counsel for 1
st
and 2
nd
Respondents : Jan Heunis SC
Norman Arendse SC
Nazreem
Bawa
David Bergström
Applicant’s
Attorneys
Fairbridges
16
th
Floor
Main Tower
Standard Bank Centre
Heerengracht
Cape
Town.
First and Second
Respondents
c/o State Attorney
Liberty
Life Centre
22
Long Street
Cape
Town.
Third and Fifth
Respondents
Cliffe Decker Attorneys
18
Buitengracht Street
Cape
Town.
Intervening Party
Minde Shapiro Smith Inc
Tyger
Valley Office Park
Building
No 2
Cnr
Willie van Schoor and Old Oak Roads
Bellville
c/o
Gerald Shnaps
Suite
902
47
on Strand
47
Strand Street
Cape
Town