An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Helen Zille responded to my criticism of her personal attack on Judge Nathan Erasmus on the Thought Leader Blog. To be fair, I post the full response here:
Seeing that you have continued with your accusations (although you claim you don’t have time), I feel compelled to once again state my case.
Firstly, I cannot recall asking you or anybody else to “trust me” on this issue. If I or the City or the DA has done anything wrong, let us be charged in a court of law where the playing fields are level and the rules are fair. This has not happened because we have done nothing wrong. Even the interim report of the Erasmus Commission’s evidence leader has conceded that there is no evidence of illegal spying.
This precisely confirms the findings of the Advocate Josie Jordaan SC. I asked Advocate Jordaan to investigate the allegations of wrongdoing because I wanted to establish whether there was any truth in them, so that we could rectify the situation if necessary. His terms of reference were broad, and included a thorough investigation into my role in the matter. I had never met Advocate Jordaan before and he had no reason whatsoever to protect me or the City.
He found that:
• An investigation into alleged breaches of the councillors’ code of conduct by Badih Chaaban was not only warranted, but legally mandatory;
• The City of Cape Town was warranted in outsourcing the investigation to private investigators George Fivas and Associates (GFA);
• I was not in any way involved in the institution of the investigation or in the payment subsequently made to the service provider;
• The policy followed to procure the services of GFA was proper and in accordance with relevant provisions;
• There was no factual basis to conclude that the City paid for any services that it should not have paid for;
• There was no evidence that the City had paid for services rendered to the DA; and
• There was no evidence indicating that councillors of parties in partnership with the DA in the city were subjected to surveillance on the instructions of the speaker or anyone else.
Incidentally, as I said in my previous post, after an extensive investigation, the police could find no evidence of wrongdoing either after an unusually enthusiastic investigation. We gave them all the relevant evidence, to the last invoice.
It is ironic that you make the generalisation that politicians cannot be trusted. Yet you are willing to trust a Commission of Inquiry set up by an ANC politician who personally appointed a judge with a history of close alignment to the ANC to investigate the DA, despite the fact that the Constitutional Court has warned judges against accepting these kinds of appointments which fall outside established judicial processes. I would have thought that with your constitutional expertise you would have seen this for what it is, a political witch hunt that is designed to smear me and the DA, for as long as possible, prior to the upcoming elections.
If your accusation about politicians is to have any application then it must be directed at Rasool who has been found guilty of willfully misleading the Provincial Parliament on three distinct points, yet remains in office. Even under apartheid, Ministers were forced to resign for such breaches. Rasool got away with an apology, but he is at it once more. He signed a willfully misleading affidavit alleging that I was involved in illegal spying, that I regularly met the investigators and had ongoing cell phone contact with them. These claims are exposed as lies by the Commission’s own “factual summary” compiled by the Evidence Leader, Mr F Petersen and submitted to Rasool. This detailed report, which tooth-combed cell phone records, found that prior to the arrest of Du Toit there was one 24 second-long voice-mail contact between me and one of the investigators, and concedes that there is no evidence of illegal spying. The Commission’s “factual summary” compiled by the Evidence Leader, thus completely undermines Rasool’s own affidavit. Rasool is known to be economical with the truth, but it is really surprising that he would produce lies in a sworn statement that are so easy to expose.
Secondly, this issue has nothing to do with freedom of speech. People are free to say whatever they like about me or my party, within the limits set out in the Constitution. But this does not entitle a politician to set up a political hit-squad to smear another politician with lies, distortions and innuendo. That is power abuse.
The appointment of a Commission, chaired by a Judge, is designed to give this hit squad a veneer of respectability that many in the media and civil society will fail to see through. Every utterance at the Commission will be reported on as if it were fact. By the time that I am given the opportunity to fix the damage, the lies and distortions will have been banner headlines for weeks.
Thirdly, whether or not Nathan Erasmus has undermined the principle of separation of powers is not the issue here. You have fundamentally misunderstood the point. The point is simply that Nathan Erasmus chose to accept the Chairmanship of the Commission. He does so in his capacity as a chairman, not a judge. He is therefore not due the same deference that he may have been entitled to if he was acting in his judicial capacity.
I should also point out that Nathan Erasmus’s political affiliations are not the core issue here either. When I said that some judges allow themselves to be abused, I was referring to Erasmus allowing himself to be used by the ANC to legitimise a Commission that we contend is unlawful. So, my “attack” as you call it was not on the basis of Erasmus’s affiliation, but on the basis of his decision to accept the appointment to the Commission.
Lastly, I would also have expected a constitutional law expert to be able to see how the Khampepe Commission differs with the Erasmus Commission.
The Khampepe Commission was set up to investigate the location and mandate of the Scorpions and put forward recommendations on that basis. This is similar to the Van Zyl Slabbert Commission set up to look at the electoral system. Unlike these Commissions, the Erasmus Commission is not designed to put forward any recommendations, nor can it contribute to policy-making.
I hope this clears up your misconceptions.
I stand by my criticism of Mrs Zille. She should not have attacked a sitting judge personally and should not have said that he had agreed to be used by the ANC merely for chairing a Commission of Enquiry set up in terms of legislation which have not been found unconstitutional. The DA or the City of Cape Town is of course free to challenge the Constitutionality of the legislation and the appointment of a Commission of Enquiry but personal attacks on a judge is uncalled for.
I maintain that one cannot suddenly say it is acceptable to attack a judge’s integrity for accepting to chair a Commission of Enquiry set up in terms of legislation. The Constitutional Court has not said that judges should not chair Commissions of Enquiry. It has 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”. If Erasmus has made a mistake to accept this job, it is for a Court of law to decide, making use of the guidelines set out by the Constitutional Court.
A politician – even one as feisty as Helen Zille – cannot and should not act as if she is above the law and the legal process and cannot and should not decide that in this case the appointment was inappropriate and that the judge is an ANC lackey. By acting as if it is perfectly acceptable to undermine the credibility of a judge and therefore of our judiciary as a whole just because on her understanding of the situation the judge acted unwisely, is to fail to respect the Rule of Law and the Constitution. This, to my mind, is dangerous.
A judge does not miraculously stop being a judge just because he acts in a different capacity. Judge Moseneke did not stop being a judge merely because he made remarks that upset the ANC at his birthday party. If we are to build a society in which respect for the law and for the judiciary is fostered and upheld, politicians should refrain from impugning the integrity of officers of the court merely because the politician thought the judge made a wrong decision. It would be appropriate to criticise a judge for his actions and even for accepting the position as chair of the Commission and to say that he made a mistake. But to impugn his integrity and to suggest that he is being used as an ANC lackey is going too far as it is disrespectful of the judiciary and undermines respect for the judiciary.
Sadly Helen Zille cannot see that her actions is creating a dangerous precedent that if it goes unchallenged will have the potential of opening the floodgates of personal attacks on judges. Next time a judge makes any comment that displeases the ANC, and the ANC Youth League or the ANC NEC attacks that judge as an apartheid dinosaur or an untransformed judge, will the DA stand up for the independence and respect of the judiciary and if it does, will it have any credibility in the matter?BACK TO TOP