Dave Marrs
8 September 2008
column
Johannesburg — I HOPE my slip isn't showing to the extent that I could be accused of immodesty when I point out that events of the past week vindicate my contention that the African National Congress's (ANC's) decision to create a post to accommodate former premier Ebrahim Rasool was ill-advised.
The Cape High Court's conclusion that he deliberately abused his powers as premier for party political ends is a serious enough blot against Rasool. However, the ruling that the Erasmus commission of inquiry was unlawful and unconstitutional, and that appointing a serving judge was incompatible with the principle of the separation of powers, is surely evidence enough that his judgment is also extremely suspect.
Does the country really need this man's advice at ministerial level during a sensitive transitional period, or was his appointment as adviser to Kgalema Motlanthe just a way for the ANC to keep Rasool out of trouble while it tried to salvage its Western Cape election prospects?
Had he still been in provincial office, I have no doubt that there would be more than enough grounds for impeachment. With the benefit of hindsight, that was probably why the ANC saw fit to give him the old heave-ho when they did, less than a year before an election. Certainly, had the provincial executive had its way, Rasool would have been replaced long ago, although not necessarily for the right reasons.
I don't suppose the ruling party has learnt anything much from this though. Rasool will almost certainly keep his new job until the present cabinet is dissolved just before the election, after which all bets will be off. Others involved in this shabby business may not be fortunate enough to pose a sufficient threat to party unity to be handled with kid gloves. One of these is provincial police commissioner Mzwandile Petros, who was found by the court to have acted illegally by passing evidence seized during a police raid directly to Rasool.
Western Cape is not the only province or level of government where public servants seem to have difficulty distinguishing between party and state, a situation that has been created in part by the ANC's policy of deploying cadres to occupy all influential positions. Unfortunately for Petros, this has meant he has been closely associated with the Rasool regime, and since he doesn't have as much political clout as his old boss he may not escape the consequences of his actions as easily.
Another issue raised by the judgment is whether judges should accept appointments as the heads of commissions of inquiry where there is the potential for political abuse. The Constitutional Court had already provided guidelines aimed at avoiding situations where public confidence in the impartiality of the judiciary could be undermined. The ruling is a welcome reminder that it is incumbent on judges to proactively defend the credibility of the judicial system by refusing to do the dirty work of politicians. If judges are to chair commissions they should be appointed by the chief justice, and nobody else.
The Democratic Alliance has asked the Judicial Services Commission to rule on whether Judge Erasmus is guilty of misconduct, which will hopefully prevent any confusion in this area in future.
Now that the dust stirred up by the commission saga is showing signs of settling, it should not be forgotten that the whole sorry mess started with floor crossing, specifically the ANC's flirtation with one Badih Chaaban. It was pretty clear to me that the appointment of the Erasmus commission was at least partly motivated by a desire to distract attention from the party's willingness to go along with Chaaban's blatant attempts to induce councillors to cross the floor to his National People's Party , which would then have been in a position to form a new government with the ANC.
The fact that the ANC has finally seen the light with regard to floor crossing does not mean Chaaban's conduct should remain unpunished if he is guilty of criminal acts. The police investigation must be completed and presented to the prosecuting authorities without delay.
Marrs is Cape editor.
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