Helen Zille must be a busy woman, so I am quite honoured that she has found the time to attack me for an article posted on Thought Leader. She seems upset that I criticised her response to the appointment of the Erasmus Commission of Inquiry. Maybe it was that headline: Zille, Zillier, Zilliest?
Zille’s recent attack sadly reminds me of President Thabo Mbeki. When President Thabo Mbeki told religious leaders that they should “trust him” on Police Commissioner Jackie Selebi, he was rightly vilified in the media and by the Democratic Alliance (DA). Now it seems Helen Zille, leader of the DA, is telling us we should “trust her” on the Spygate matter and should not complain when she impugns the integrity of a judge.
In response to the earlier post she argues: (1) that her name has already been cleared by a Commission appointed by her with terms of reference decided on by her and thus that she has nothing to hide; (2) people will appear before the Commission and will make scurrilous and untrue allegations that will damage her reputation and that of the DA; and (3) that Judge Erasmus should never have accepted to chair the Commission because it is a political hatched job and she is therefore perfectly entitled to attack him personally.
First, it is true that a Commission headed by a senior advocate cleared Helen Zille and the DA of wrongdoing. But the terms of reference of this Commission was decided on by Helen Zille herself, and she was thus cleared of what she knew beforehand she would be cleared of. The terms of reference of the Erasmus Commission is much wider, and thus has the potential to uncover evidence of wrongdoing not covered by the Zille Commission.
It might well be that even these wide terms of reference will not allow Judge Erasmus to make any adverse finding against the leader of the opposition or the party she heads. In that case she would have been truly exonerated by a judge (whose formal position should make his findings more authoritative than those of an advocate) and her name would really be cleared. But by pulling out all the stops to try and prevent this broader investigation, reasonable people without an axe to grind will inevitably become suspicious and will begin to wonder why we should trust Helen Zille. When politicians ask us to trust them, I for one starts getting suspicious – but maybe that is just me.
Second, in a constitutional democracy that guarantees freedom of expression, a politician cannot choose which allegations she wants to have aired in public and which one’s not. As the Constitutional Court has said, the guarantee of freedom of expression means that we must allow almost all speech – even speech that might be untrue or scurrilous – because in the free marketplace of ideas the real truth will emerge eventually.
Now Mrs Zille seems to suggest that she does not believe in freedom of expression because she does not trust the truth to come out in the end. She therefore argues we should stop a Commission of Inquiry because allegations might be made there that are untrue and damaging to her and the party. This is a deeply illiberal stance and flies in the face of the values espoused by the DA and Helen Zille and creates the impression of serious hypocrisy on her part.
Besides, to say that Mr Rasool might have a political axe to grind and might want to gain a political advantage out of this sorry saga and that the whole exercise is therefore illegitimate is also laughable – coming as it does from the DA. When the DA screams blue murder about allegations of corruption in the arms deal it does so knowing that it could gain a political advantage out of the matter. That does not make it illegitimate to ask for a commission of inquiry into the arms deal – it merely makes the DA a good, and therefore somewhat opportunistic, political party.
Third, it is true that in South African Association of Personal Injury Lawyers v Heath the Constitutional Court said that given the principle of the separation of powers in our Constitution, a judge should not perform a task that is “incompatible with judicial office” and that one of the factors that might be relevant in deciding whether the task is incompatible with judicial office would be whether it would “create the risk of judicial entanglement in matters of political controversy”.
But the Court also said that judges can preside over commissions on inquiry because the performance of such a function “ordinarily calls for the qualities and skills required for the performance of judicial functions – independence, weighing-up of information, and giving a decision on the basis of a consideration of relevant information”.
Here we have a commission set up in terms of Provincial Legislation to establish wrongdoing by the City or its officials, which seems very close to the judicial function and therefore does not suggest an infringement of the principle of the separation of powers.
However, if Mrs Zille believed that the Erasmus Commission infringed on the principle of separation of powers as set out in the Heath judgment, she would be free to challenge its legality in the Constitutional Court. But she has not done so – perhaps because she has been advised by senior lawyers that such a case has little chance of success? Instead she has chosen to launch a personal attack on a sitting judge not on the basis of any of his actions or decisions (which would have been legitimate) but based on his previous political affiliations (which undermines one of the main pillars of our democracy).
This personal attack is deeply irresponsible and flies in the face of existing Constitutional Court precedent. The Constitutional Court has already found in the SARFU judgment that one cannot and must not assume that a judge would be biased merely because he or she belonged to a political party before his or her appointment.
We all have a duty to uphold the independence of the judiciary and to respect the members of the judiciary and we should not attack their integrity based on nothing more than their history. A judge does not stop being a judge merely because he sits as the head of a commission of inquiry and to suggest that he does is to engage in mental gymnastics of the highest order.
And once again the attack on Judge Erasmus reeks of hypocrisy. When Judge Sisi Khampepe was appointed by President Thabo Mbeki to investigate issues around the Scorpions – a politically controversial subject if ever there was one! – the DA did not complain and did not attack the judge for taking on the assignment and even launched a laudable action to gain access to her final report.
But now that another judge is appointed to head another commission dealing with politically less controversial matters such as lowly corruption in little Slaapstad, the judge is attacked personally and in Orwellian manner accused of undermining the independence of the judiciary.
This is rich, because, lets face it, it is the statement by Mrs Zille – and not the actions of a judge acting in terms of legislation – that is undermining the independence of the judiciary.
Hypocrisy of the highest order rules again.
Ja, prof the constitution like the bible is a dangerous document, we use it when we want to do good also when we want to destroy other people. Our own interpretations become extorted. Hey my zozo, it cant lock got to run.
Well I and many other have 100% trust and faith in Zille. This whole thing is a an ANC smear campaign, I’m not going to defend their dirty tricks campaign.
Two important points are being consistently missed in this debate.
The first is that there is no basis for a commission of inquiry by the Province into a local authority’s affairs other than in the circumstances contemplated in section 106 of the Local Government: Municipal Systems Act. So many people seem to be under the misguided impression that the premier has the constitutional authority to intrude willy nilly on the turf of another sphere of government. Apartheid style hierarchical government mindsets are well entrenched it seems. You know, like when the Adminstrator of the Province was the boss and the mayors were legally beholden to him. Wish more of us took time to understand how our Constitution has taken us away from that structure.
Second point is a judge who chairs a commission of inquiry is acting outside his/her judicial capacity. Erasmus is not sitting on the commission as a judge, yet most people, and in particular political commentators in the press, seem incapable of distinguishing his personal non-judicial capacity from his judicial role. Mental gymnastics? Maybe it’s time for a workout Pierre!
Whether in this case it is right that a judge should have accepted the Premier’s invitation to accept such a position is something the courts will shortly decide.
Pierre will hopefully be the first to concede that he sometimes calls the likely results of court proceedings totally incorrectly. Remember his recent take on the case about the arms shipment in Durban harbour?
And by the way, I found a couple of articles Pierre might like to ponder in the light of some of his remarks in today’s, as ever, entertaining offering: Elison Kahn, Extra-Judical Activities of Judges (1980) 13 De Jure 188 and Edwin Cameron, Nude Monarchy: The Case of South Africa’s Judges (1987) 3 SAJHR 338. They are both referred to in the casenotes in the Heath matter.
The sad thing about the chattering classes is that they rely on each other and the newspapers for the information on which they base their opinions. So they’re misinformed. This means they keep circulating misconceptions and misinformation in frenetic whirlpools.
I look forward to the day when most journalists (there are exceptions) and opinions formers take the time to go to the source documents for their information, rationally consider them, and then report on them.
Instead we get re-cycled conference circuit gossip, political party handouts and ‘informed sources’ with axes to grind and party political agendas to act on.
There’s a long weekend coming up, so Pierre, this should give you plenty of time to get hold of the Erasmus Commission’s terms of reference for its ‘probe’ into the affairs of Cape Town’s government, take a few deep breaths. Focus. Read and inwardly digest, and tell us – with your independent constitutional law academic hat on – what you think of the terms of reference. If you were fighting in a court of law for the commission to continue, what would be your argument. Why do the ratepayers of Cape Town and the citizens of SA need the ‘truth’ that will come out of this exercise. Would justice and the truth be served?
I have yet to see any rational, informed analysis in a South African publication, on these terms of reference.
In the bad old days of apartheid there were journalists who would take the time to read the terms of numerous NP-inspired commissions and explain why they were a travesty of justice. Nowadays, if the ANC hacks say a commission is a good idea, why rock the boat. It takes too much effort.
And please, stop whining about the way Helen responded to your criticism. As her predecessor Helen Suzman, one of South Africa’s greatest liberation fighters, once said to Jimmy Kruger (I think) : If you’re going to dish it (criticism) out, you must be able to take it.
@ Marion.
I will leave it to the legal academics on this blog to opine on the legal basis of your argument.
However your intellectual argument is flawed very early on in your comments when you refer to the “chattering classes “ – “The sad thing about the chattering classes is that they rely on each other and the newspapers for the information on which they base their opinions. So they’re misinformed. This means they keep circulating misconceptions and misinformation in frenetic whirlpools.”
– giving me the impression that you were referring to the general (wo)man in the street. That is to say the general public. It seems to me that underestimating the intelligence of the general population with an elitist statement like the one you made is fatally flawed as history has shown all over the world – repeatedly.
Barack Obama learn’t this – much to his chagrin, after he uttered what could be seen as a similar elitist remark recently in Pennsylvania. An election that despite his populist leanings he lost by double digits.
A reminder of what he said.
”You go into these small towns in Pennsylvania and, like a lot of small towns in the Midwest, the jobs have been gone now for 25 years and nothing’s replaced them…And they fell through the Clinton administration, and the Bush administration, and each successive administration has said that somehow these communities are gonna regenerate and they have not.
And it’s not surprising then they get bitter, they cling to guns or religion or antipathy to people who aren’t like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations.”
Last by not least.
The double entendre included in your “bad old apartheid” comment further leaves nothing to imagination as to a mindset mired in colonial elitism.
James.
It’s really ironic that people like you (i.e. opposition supporters) are critical of the 100% slogans been displayed by the ‘Zuma’ camp, but how wonderful that you portray a similar stance in relation to Zille. Maybe it’s just a matter of the same bottle but different color support that is so evident within South African politics. When we ever move on?
Mqo.
100% Zille. This means I am firmly behind a political leader named Helen Zille. I base my backing on her policies and performance in Cape Town as Mayor. Irrespective of race.
100% Zuma. This means that you are firmly behind a political leader named Jacob Zuma. I do not know what you base your support on as his policies change on a daily basis, his integrity is questionable and his tenure as deputy president was not exactly earth shattering either.. irrespective of race.
Please tell me indeed when we can move on and stop accusing opposition supporters of racism merely because they do not support the party who led the liberation of black south africans. Irrespective of race.
Consdtitutional law is a very specialised field. Academic salaries are low. Academics like to earn extr through outside work..But constutional law is a narrow interest for such work. Mostly its confined to government. And who , pray tell, is the main customer for De Vos ( and his colleagues) contracting work ? QED
Gavin, ou swaer, what a sharp analytical mind you have. Debunking all my clever arguments with your rational and incisive analysis.
I’m with Gavin on this one.