NEWS & ANALYSIS

Judge Erasmus is allowing himself to be abused – Zille

Speech by DA leader, Helen Zille, to Cape Town Press Club April 21 2008.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is an extract from the prepared speech by Helen Zille, leader of the Democratic Alliance, to the Cape Town Press Club, Kelvin Grove Club, Newslands, Cape Town, April 21 2008. Issued by the Democratic Alliance April 21 2008