City of Cape Town v Premier of the Western Cape and Others (5933/08) [2008] ZAWCHC 259 (1 September 2008)

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[2008] ZAWCHC 259
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City of Cape Town v Premier of the Western Cape and Others (5933/08) [2008] ZAWCHC 259 (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 Smitras 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 offere of bribes to
change
political allegiance in the run up to the so-called
l1
floor-cross[ng"
window
period between 01 to 15 September 2007. 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, to investigate
the
conduct 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
r
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.G., who appeared for the Premier and the MEC, together
with Mr. Arendse, S.C., M/s Bawa and Mr. Borgstrom,
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
fs 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 a^l 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?
19.1
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 doneat 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 formaf
intergovernmental dispute the organ of state in question must
f
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
"pofitical
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
1
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,Jn-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, heacted-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 for4he 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 cEearly untenable"
Pfascon
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,
1
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
f
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".
i
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 conditional counter-application,
seek an order declaring
thatr
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-760C
[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 MorkelLtd. 1953(3) SA324(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 ! 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
11
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, .whiefe.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;
44.1
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 rn
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 a[ter
r
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 afters 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
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
P
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 appointthe
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 setout in Section 125 of the
Constitution. One of these powers is to perform any
other function
assigned to the provincial executive,
irr.
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
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. ^
i
â–
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
iegislative 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
11
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
l
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'
1
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 executives-authority. Regulation
is forward-looking and does not include an :investigatton~mto
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
T
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
Premlef'to" appoint
the investigators as a commission.
Minister
of Local Government, Housing and Traditional Affairs (KwaZufu Natal)
v Umiambo 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
1
06
(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
1
06
(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
aiia
to
Chapter 7 of the Constitution.
Democratic
Affiance 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 ietter
T
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. !t
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
f
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 vis 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 provinciallegislature
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:
49.6.1. In
terms of Section 151 (3) of the Constitution the City's right to
govern is limited to
"Jocal
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
Ideal 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 tocal government in the province
through legislative or other measures".
The
power is repeated in Section 54 (1) of the Western Cape
Constitution.
i
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 locai 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
105
(1)
of the Systems Act. This provision empowers the MEC to question or
investigate
"maladministration,
fraud, corruption or other serious malpractice".
This
is a dear 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 Ihe M EC'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
T
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
1
'
in
a local government. There is no reason why the Premier couid 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
[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 lappoint
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 thai 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 Gape also provides that the Premier:"is
responsible
for"
appointing
commissions of inquiry. Section 37 (1) of the Constitution of the
Western Gape 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
T
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 vSARFU and oihers2000 (1) SA1 (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 vAudiolens
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 lhat
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
eln
the absence of applicable provincial legislation, the provisions of
sections 2, 3, 4, 5 and 6 of the Commissions Act 1947 (Act
N6 8 of
T947) 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 locai 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 /
[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
r
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 ah 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 ah 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
t
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
ofi
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 dear 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 Municipafity. 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
ek
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. Heunts 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
1
1
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""'presehf
%as6r'
arid"'regard
being had to the terms of reference of the
ii
S6cbnd
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 rufe 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 beset 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 irnproper 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.
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,
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 resoived in accordance with the dicta in
Plascon-Evans
Paints (Pty) Ltd. v RiebeekPaints (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
far­fetched or clearly untenable and may be rejected on this

basts.
[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
RvMyers48(1)SA375Aat383A
"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
Hammanv
Moolman
1968 (4) SA 340
(A) at 34? 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 ail 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 reveais 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 alE of the relevant
evidence) point to the absence of ah
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 hot 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.
j
[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.
i
[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 Sedond
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 MECs 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 co­operate 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
F
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)
M
[117]
There is no basis for any contention that the City was not prepared
to cooperate. 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 thelfact
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 afrcMhe 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 co­operate 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 establishmentof 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
persona* 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.
j
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
T
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
fioor-crossing period, appeared to be a full scaie 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 dale 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
p
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 Toil,
"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
tn 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,
Is
submitted
that an Item 13 (1) (a)
investigate
is
a preliminary fact finding exercise by the Speaker,"to which the
rules of natural justice do not apply, except tithe limited
extent
encapsulated by Item 13 (1) (b)
F
in terms of which the councillor in question must be given
a
reasonable
opportunity to repiy in writing regarding the alleged breach.
123.3. 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
.4.
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. SeEfe 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 ne 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".
123.9 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 nationalleader.
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
i
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 thatPetros 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 in voices 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
t
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.
123.16
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
T
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
anoma
/y
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
1
'
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
ihitiak 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
\o
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
P
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.
i
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
-
lam
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 pre­empt the Erasmus
Commission in order that she would
not have to explain her failure to
compiy 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 R 15,000.00, 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,OOG.0O 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
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 R3.5OO.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 dear that the ambit and
nature of the investigation had been formulated by
GFA.
123.24.3 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.
123.24.5
The Mayor had made a public statement on 31 October 2007, stating
that charges had been laid and complained of police
inaction.
123.24.6
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.
i
123.24.7
The
report and findings of the so-called
"Jordaan
Report
1
'.
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-catled
"interim
report"
which
is in essence a detailed summary by the evidence ieader of the First
Erasmus Commission, of the evidence collected under
the auspices of
that Commission.
[128]
This so-called
"interim
report
11
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. Papadakts, I have
requested the
evidence leader to prepare a progress report in which he sets out
all the work done to date as welt 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 \
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 ft is possible" Rasoo!
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
1
'
[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
j
report available to the provincial parliament. The First Erasmus
Commission was obliged to submit its report by
31
January
200&,
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]
Paragraph4 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 ail
"employed
in the execution of the functions of the Commission
1
'.
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
r
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.
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.
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)
t
and do not extend to sharing with the executive government
information seized in criminal Investigations.
i
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 ail 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 pofitical 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
Rv
Metropolitan Police Commissioner Ex parte Blackburn [1968] 1 Alt 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 fand he [the Commissioner of Pol ice], 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
couEd 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
McCfeave
v City ofMoncton (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 Ail 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 Ail BR 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 discfosure
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 anycrimes by du Toit,
or anybody
else, this should have been fufly 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 untif 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 vioiation
of the provisions of Section 199 (7)
of the Constitution.
[148]
Although I find it strange indeed that a police officiat 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.
153,3
The Second Erasmus Commission is only tasked to
"advise'
1
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.
154.2 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
r
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 battte
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
F
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.
162.1
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".
162.2
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.
162.3
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.
162.4
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.
162.5
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.
162.6
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_actua! 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?
162.7
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".
162.8
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.
162.9
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
Sectiori 106.
Van
Wyk v Uy$ 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.
162.11 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.)
162.12 it
is submitted that a provincial commissionestablished by an outsider,
being the Premier, simply has no place in themunicipal
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.
162.13 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.
162.15
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.
162.16 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~toobtain
a report which the Premier could then pass on to the
City, to do
with it as it saw fit,
162.17 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.
162.18 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.
162.19 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.
In
the face of this evidence there could be no reasonable grounds for
the Premier continuing to harbour such concerns, or hold
such
beliefs.
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.
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
uniawfuf and invaiid?
[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 :
That
there can be no doubt that the Constitution provides for a
separation of powers (at 897B).
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).
Parliament
and the provincial legislatures make the laws but do not implement
them. The national and provincial executives prepare
and initiate
iaws 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).
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).
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).
The
principle of separation of powers is not necessarily compromised
whenever a particular judge is required to perform non­judicial

functions. The performance of functions incompatible with judicial
office would however not be permissible (at page 899 E).
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 :
MM
A
Is
more usual or appropriate to another branch of government
Is
subject to executive control or direction
Requires
the judge to exercise a discretion and make decisions on the
grounds of policy rather than law
Creates
a risk of judicial entanglement in matters of political controversy
Involves
the judge in the process of Jayv enforcement
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-900B).
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).
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).
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).
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).
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
Grollov
Palmer
[1995] HCA 26
;
(1995)
184 CLR 348
at paras 21 -23
[173]
McHugh J in
Grollos
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
pubEic 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
5
".
[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 woufd 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 fali 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 wili 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)
r
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 non­judicial
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 re 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,
wouid 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 fife.
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 SAJHR338at342
[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 independentfy 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
111
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)
SA785 (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."
1
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 wiil 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
wefl as the power of the National Director of Public Prosecutions.
The i n vesti g ati on of
"fra
u
d,
co rrupt ion, m a tad m
i
n
i
strati on, seri ous 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 fuifil 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 foliowing 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 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 Bergstrdm
1.
Applicant's
Attorneys
Fairbridges
16
th
Floor Main Tower
Standard
Bank Centre
Heerengracht
Cape
Town.
2.
First
and Second Respondents
c/o
State Attorney
Liberty
Life Centre
22
Long Street
Cape
Town.
3.
Third
and Fifth Respondents
Cliffe
Decker Attorneys
18
Buitengracht Street
Cape
Town.
4.
Intervening
Party
Minde
Shapiro Smith Inc
Tyger
Valley Office Park
Building
No 2
Cnr
Willie van Schoor and Old Oak Roads
BellvilIe
c/o
Gerald Shnaps
Suite
902
47
on Strand
47
Strand Street
Cape
Town