Cape Town launches legal challenge to Erasmus Commission

Statement and affidavit issued by Dirk Smit April 8 2008


Today I have launched an application with the Cape High Court to challenge the legality of Premier Rasool's new Commission of Enquiry into the City of Cape Town's probe of Cllr Badih Chaaban. We will also ask the Court to pronounce on the legality of the first Erasmus Commission [a copy of the full affidavit is appended on the right].

In his enthusiasm to smear the multi-party government of Cape Town , Rasool has tried to take on powers he does not have. He has stepped over the line, and is trying to abuse and distort the Province's very limited powers of intervention in local government for party political purposes. He and the ANC are clearly afraid of losing the 2009 elections, and want to do all they can to prevent this.

The city will argue that the Premier and the Province have abused their power on several counts.

Firstly, the Premier has tried to appoint a Commission of Enquiry into our municipality's affairs without following the legislation that governs provincial administrative action into a municipality (that is, Section 106(1)(b) of the Municipal Systems Act). The law does not provide for the Premier to launch a Commission of Enquiry into a municipality's affairs unless it is to give effect to a valid investigation launched by a Local Government MEC in terms of the Systems Act. By acting outside of the Systems Act, Rasool is trying to dodge all legal constraints on what province can and can not do when intervening in local government. This is an unlawful abuse of his office. He has probably chosen to do this because he realised that the MEC did not have sufficient grounds in terms of the Systems Act to provide a basis for the first Erasmus Commission.

Secondly, the Premier is trying to take on the powers of the National Prosecuting Authority and the police with his new Erasmus Commission. Investigations into possible breaches of the Prevention of Corrupt Activities Act must be handled by the police and the National Prosecuting Authority, not by the Premier as he is currently trying to do. The law does not make provision for politicians to carry out corruption investigations - this is open to abuse. The Constitution expressly separates political office bearers from state institutions like the police and NPA. If the Premier suspects that a corruption offence or any other criminal offence has been committed, he should report the matter to the police or the Investigating Directorate and leave them to investigate it in an independent fashion. If anyone has broken the law, the police can lay a charge and make arrests. They have not done so, even though they have access to all evidence, including tape recordings.

Thirdly, the Premier has tried to launch an investigation that cannot result in any administrative action by Province. A Provincial Commission of enquiry can only be launched into a municipality's affairs if it is to serve as the basis for legitimate administrative action in terms of s139 of the Constitution. Outside of Section 139 of the Constitution, there is nothing an MEC or provincial government can do with the results of an investigation into a municipality's affairs other than smear that municipality in the media. There would therefore be no legitimate purpose in undertaking the investigation in the first place. This applies equally to the first Erasmus Commission.

Fourthly, in appointing both the first and second Erasmus Commissions without adequate grounds and without following the necessary intergovernmental procedures, the Premier and the MEC have acted as if they are above the law - specifically the Intergovernmental Relations Framework Act and Sections 40 and 41 of the Constitution. The first Erasmus Commission was launched before the City's own investigations by the City Manager and Adv Josie Jordaan (of the Cape Bar) were completed, and without adequate consultation. And the new Erasmus Commission was appointed without any prior consultation with the City at all. But the law clearly states that in intergovernmental matters all steps necessary must be taken to resolve the issue before going the legal route. The Premier and the MEC did not do so.

This is not the first time that the Province has tried to unlawfully undermine the City, having initially tried to challenge the Executive Mayoral System which the Multi-Party Government inherited from the ANC government in the City; and having had to back down on this matter too. Despite these repeated attempts to undermine our City government, we have tried to resolve this matter in an amicable manner. But the Premier has left us with no choice other than the legal route.

We will no longer tolerate his blatant abuse of power.

Statement issued by Dirk Smit, Speaker of the City of Cape Town, April 8 2008