Court rules that Erasmus commission is unconstitutional

The Erasmus commission, set up to probe alleged irregularities in the City of Cape Town, is unconstitutional, a full bench of the high court ruled on Monday.

Judges Kevin Swain and Chris Nicholson, sitting in the Cape High Court, also said the appointment of a serving judge to chair the commission is incompatible with the principle of separation of powers, and is therefore unlawful and invalid.

The commission was set up by former Western Cape premier Ebrahim Rasool ostensibly to probe the legality of the City of Cape Town’s bribery investigation into renegade councillor Badih Chaaban.

However, the judges said Rasool’s motive had in fact been the “improper one” of seeking to embarrass his political opponents, in particular the Democratic Alliance (DA), which leads the city.

Rasool’s actions in establishing it had been arbitrary and unlawful, and his decision therefore “falls to be set aside”.

The judges said Western Cape police Commissioner Mzwandile Petros broke the law when he handed over information gained in police raids to Rasool.

The court challenge was launched by the city, which was then joined by the DA.

They claimed Rasool, an African National Congress appointee, had purely political motives in appointing the body, and that the use of a serving judge—Nathan Erasmus—to head it, is unconstitutional.

The case was heard by Swain and Nicholson, who are from the KwaZulu-Natal bench, because Erasmus is a Cape judge.

The Erasmus commission had suspended its sittings pending the outcome of the case.—Sapa