REPORTABLE

		IN THE HIGH COURT OF SOUTH AFRICA 
		(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between:

CASE NO. 5933/08 

THE CITY OF CAPE TOWN						APPLICANT

and
THE PREMIER OF THE WESTERN CAPE			FIRST RESPONDENT 
THE MINISTER FOR LOCAL GOVERNMENT AND 
HOUSING IN THE PROVINCIAL GOVERNMENT 
OF THE WESTERN CAPE					SECOND RESPONDENT
THE HON. MR. JUSTICE N.C. ERASMUS N.O.		THIRD RESPONDENT
GEORGE PAPADAKIS N.O.					FOURTH RESPONDENT
HERDIE VERMEULEN N.O.					 FIFTH RESPONDENT

DEMOCRATIC ALLIANCE					INTERVENING PARTY

SWAIN. J.

[1] The present dispute arose in the context of the political battle between the Democratic Alliance (DA) and the African National Congress (ANC) for control of the City of Cape Town, the council of which is currently led by a coalition of the DA, together with other political parties, which was previously controlled by the ANC.

2.4.	No relief is sought against the third, fourth and fifth respondents.

[3] The spark which ignited the inferno between these political protagonists was the conduct of an individual by the name of Badih Chaaban, a councillor on the council of the City, and a member of the Africa Muslim Party which was originally part of the DA led coalition governing the City until January 2007, when his party was dismissed from the coalition.

[4] The City therefore engaged the services of a firm of private investigators, George Fivaz & Associates, to investigate the conduct to September 2007 and culminated in a finding by the disciplinary committee of the City on 19 October 2007 that Chaaban was guilty on six counts of misconduct. The council of the City decided on 31 October 2007, in terms of Clause 14 (2) (e) of the Code of Conduct for Councillors (Schedule 1 to the Municipal Systems Act No. 32 of 2000 "The Systems Act") that the MEC be requested to remove Chaaban from office.

[5] The lawfulness of the conduct of the City in investigating Chaaban and hiring a firm of private investigators to do so attracted the attention of both the MEC and the Premier:-Their response was as follows:

5.1 On 27 November 2007 the MEC established an investigation in terms of Section 106 (1) (b) of the Systems Act with the third, fourth and fifth respondents as investigators.

[7] The City, initially alone, and thereafter joined by the DA, as an intervening party, whose intervention was not opposed by the respondents, seek orders declaring the decision taken by the MEC to establish an investigation under Section 106 (1) (b) of the Systems Act, as well as the decisions of the Premier to establish the First and Second Erasmus Commissions, as being inconsistent with the Constitution and invalid. The City, apparently due to an oversight, did not initially attack the decision of the MEC but thereafter sought to do so by way of an amendment to the relief sought, which was granted without opposition.

The challenges raised in terms of the Intergovernmental Relations Framework Act No 13 of 2005

8.1.	The MEC and Premier in respect of the launch of the present proceedings by the City and by
8.2.	The City in respect of the establishment of the Second Erasmus Commission by the Premier.

[9]    The MEC and the Premier submit that the City acted prematurely by instituting the present legal proceedings, in a manner which was inconsistent with the Constitution and the provisions of the, Intergovernmental Relations Framework Act No. 13 of 2005 (the Framework Act).

Section 41 (4) of the Constitution, then provides that if a court Is not satisfied that the requirements of sub-section (3} have - been met, it may refer a dispute back to the organs of state involved:

[12] The MEC and the Premier rely upon the provisions of Section 45 of the Framework Act, which provides that no government or organ of state, may institute judicial proceedings in order to settle an intergovernmental dispute, unless the dispute has been declared a formal intergovernmental dispute in terms of Section 41, and all efforts to settle the dispute in terms of this chapter were unsuccessful.

[13] In terms of Section 40 (1) (b) of the Framework Act, all organs of state must make every reasonable effort to settle intergovernmental disputes without resorting to judicial proceedings.

[14] It is common cause that the dispute between the City on the one hand and the Premier and MEC on the other hand, as to the lawfulness of the establishment of the Second Erasmus Commission, constitutes an intergovernmental dispute, as defined in the Framework Act and that the City did not take all of the steps provided for in the Framework Act, to settle the dispute before launching the present proceedings.

[15] Mr .Heunis, S.G., who appeared for the Premier and the MEC, together with Mr. Arendse, S.C., M/s Bawa and Mr. Borgstrom, submitted that the provisions of the Framework Act and the Constitution in this regard were peremptory, and this Court did not have the power to condone non-compliance with Section 45 (1) of the Framework Act, with the result that the City contravened both its lawful obligations under the Constitution as well as the Framework Act

Mr. Heunis submits that the discretion afforded to a court in terms of Section 41 (4) of the Constitution to refer a dispute back to the organs of state involved, only arises where there has been compliance with the Framework Act, but the Court is of the view that further negotiation is required between the warring parties.

[16] The argument advanced in reply by Mr. Rogers, S.C. who appeared for the City, together with Mr. Binns-Ward, S.C. and M/s Mayosi was as follows:
16.1.	It fs not suggested that Section 41 (3) of the Constitution is not peremptory, nor that compliance with the Framework Act is unimportant.

16.4.	Section 45 (1) of the Framework Act, remains subject to Sections 41 (3) and (4) of the Constitution. If in a^l the circumstances of the case, it could not reasonably have been expected of the City to follow some, or any of the procedures of the Framework Act, Section 41 (3) of the Constitution is satisfied, and in terms of Section 41 (4) the court would not be entitled to decline to entertain the case.

[17] The provisions of the Framework Act must be construed consistently with the Constitution. Consequently, although Section 45 (1) of the Framework Act, is couched in peremptory language it has to be read consistently with the provisions of Section 41 (3) and (4) of the Constitution.

To disregard the provisions of Section 41 (4) of the Constitution, which vests in a court a discretion to hear a matter, even if not satisfied that the parties have made every reasonable effort to settle the dispute, would run counter to the provisions of.Section 34 of the Constitution, which guarantees the right of the individual to have any dispute resolved by the application of law, decided in a fair public hearing before a court.

A limitation of this right by the provisions of Section 45 (1) of the Framework Act, would not be reasonable and justifiable in terms of Section36 (1) of the Constitution.

[18] In my view, Section 45 (1) of the Framework Act is therefore reasonably capable of being read in conformity with the provisions of Sections 41 (3) and (4) of the Constitution, without such an interpretation being unduly strained.
investigating Directorate: Serious Economic Offences& others
v

In my view, the discretion vested in a court by Section 41 (4) of the Constitution, is not limited in the way contended for by Mr. Heunis. What would the point be in vesting in a court a discretion to decline to hear a dispute, where it was clear that every reasonable effort had been made, albeit unsuccessfully, by the parties to settle it?

19.2.	At this meeting the Mayor advised the Premier that if the proceedings of the First Erasmus Commission, were not stopped and she was advised by no later than 10 February 2008 that this would happen, she would approach the High Court for urgent relief.
19.3.	This was followed by a letter dated 07 February 2008, which advised that the City had -obtained-advice from- Senior Counsel that the establishment of the First Erasmus Commission, as well as the investigation in terms of Section 106 (1) (b) of the Systems Act, were unlawful.
19.4.	The Premier then agreed to suspend the hearings of the First Erasmus Commission, until he was satisfied as to the lawfulness of the First Erasmus Commission. The MEC responded to the Mayor's letter, indicating that although he supported the suspension

19.5.	The City then supplied the Premier with a copy of the papers drafted to challenge the lawfulness of the Commission and the investigation.

[20] Mr. Heunis submits that it is quite clear that the City did not comply with the requirements of the Framework Act, nor Section 41 of the Constitution, as there was no contact by the City with either the Premier, or the MEC, before it launched the present proceedings.

[21] The answer of Mr. Rogers is that on the particular facts of this case, it was not reasonable to expect the City to have complied with the Framework Act for the following reasons:
21.1.	The procedures contemplated in the Framework Act for dispute resolution are time consuming.

21.3.	The proceedings of the Second Erasmus Commission were intended to resume without delay and it was to report to the Premier by 30 June 2008 and the City would have been denied effective redress, if it held back on legal proceedings while following the framework processes.

[22] The Premier and the MEC argue that these submissions constitute assumptions on the part of the City as to how they would react. The fact remains however, that despite the City furnishing to the MEC and the Premier, details of the legal grounds upon which the lawfulness of the Section 106 (1) (b) investigation and the First Erasmus Commission were challenged, in the form of the draft application papers, there was no attempt by the Premier to meet with the City before establishing the Second Erasmus Commission, to discuss any grievances the City may still hold in that regard.

22.1 	In addition there was no attempt by the ^Premier to obtain additional information from the City, as to any of the concerns he may have held. As will become apparent later,Jn-this Judgment, this aspect is of importance in regard to a substantive challenge raised in relation to the lawfulness of the establishment of the Second Erasmus Commission.

[23] in my view, it would have been reasonable to expect the Premier to meet with the City, in an attempt to reduce the possibility of the conflict continuing. The fact that he did not and established the Second Erasmus Commission, without further reference to the City, lends credence to the City's contentions.

[24] I am of the view that in all of these circumstances, the City could not reasonably have been expected to take the steps envisaged in the Framework Act, before instituting the present proceedings. In the result, this Court has the power to entertain these proceedings in terms of Section 41 (4) of the Constitution.

[25] Turning to the challenge raised by the City that the conduct of the Premier in establishing the Second Erasmus Commission, was clearly calculated to give rise to a dispute. This conduct was contrary to the provisions of Section 40 (1) (a) of the Framework Act in terms of which the Premier was obliged to make every reasonable effort to avoid such a dispute. In failing to do so, heacted-unlawfully, as compliance with Section 40 (1) (a) is a jurisdictional prerequisite for the exercise by organs of state of their powers when these impact on other organs of state- As a consequence; his establishment of the Second Erasmus Commission was unlawful.

[26] Mr. Heunis submits that the challenge is really that the Premier should have known as a matter of fact when he established the Second Erasmus Commission, that a further dispute was inevitable, and he should have pre-emptively avoided that result

[29] Although it would have been reasonable for4he Premier to meet with the representatives of the City to discuss any grievances, the City may still have held in regard, to the.establishment of a further Commission, this does not mean that the Premier's failure to do so, constitutes a breach of the provisions of Section 40 (1) (a) of the Framework Act.

[31] The establishment of the Second Erasmus Commission by the Premier was consequently not rendered unlawful as. a consequence of the alleged failure on his part to comply with;the provisions of Section 40 (1) (a) of the Framework Act.       

The substantive challenges raised as to the lawfulness of the MEC's decision in terms of section 106(1)(b) of the Systems Act to establish an investigation and the Premier's decision to establish the First and Second Erasmus Commissions

[32] Turning now to deal with the substantive challenges to the lawfulness of the MEC's decision, in terms of. Section 106 (1) (b) of the Systems Act to establish an investigation, as well as the Premier's decisions to establish the First and thereafter the Second Erasmus Commissions.

[34] The First Erasmus Commission was therefore dissolved and ceased to have any legal existence, on the same date that the Second Erasmus Commission was established. As regards the investigation established by the MEC, although there-is no mention in the papers that the MEC took any administrative steps to dissolve the investigation, it is clear it must have suffered the same fate as the First Erasmus Commission, for the following reasons:

34.2.	In the media statement released by the MEC dated 27 November 2007, he states that:
The Section 106 investigation will take the form of a commission, which will be appointed by the Premier in terms of the Western Cape Provincial Commissions Act".

34.4.	The Second Erasmus Commission comprised the same commissioners with the same terms of reference, albeit with additions.
34.5.	Mr. Heunis submitted that the MEC's investigation under Section 106 (1) (b) was superseded and replaced by the First Erasmus Commission.

[35] The City and the DA both seek orders declaring that the decisions of the MEC and the Premier, respectively establishing the Section 106 investigation and the First Erasmus Commission, are inconsistent with the Constitution and invalid. In the alternative, orders are sought reviewing and setting aside these decisions.
The reasons advanced for this are that the Premier's proclamations of 19 March 2008 are premised on the validity of the First Erasmus Commission, i.e. disestablishment presupposes prior lawful establishment. In addition, the new proclamation makes provision for the actions of the First Commission to be deemed to have been done in accordance with the proclamation of the 19 March 2008, and; the lawfulness of the First Commission is relevant to this deeming provision.

[38] In the exercise of its discretion, the court may decline to deal with a matter where there is no actual dispute. This does not mean that there must be a dispute before a court will exercise its discretion, but it is essential that there be an interested party upon whom the declaration will be binding.

Ex Parte Nell 1963 (1) SA 754 (A) at 759 H-760C

Lawson & Kirk (Pty) Ltd, v Phil MorkelLtd. 1953(3) SA324(A) ,

[40] Any right on the part of the City and the DA, to challenge the validity of the provision in the new proclamation deeming the actions of the First Commission, to have been done in accordance with such proclamation, does not in my view, for reasons I" will set out below, depend for its resolution upon a determination of whether the First Commission was lawfully established, or not.

40.1 in addition ! do not agree that disestablishment of the First Commission, presupposes its prior lawful establishment. The lawfulness of the establishment of the First Erasmus Commission, is not a prerequisite to the validity or lawfulness of its disestablishment, particularly where the validity of the proclamation which disestablished it, is not challenged.

[41] Any contingent right on the part of the Premier and the MEC, to declare the establishment of the First Erasmus Commission valid, depends upon the outcome of the challenge made to the establishment of the Second Erasmus Commission.

I agree with the answer of Mr. Rogers that the MEC would have to take a fresh decision in terms of Section 106 (1) (b), and the Premier would have to take a fresh decision to establish a new commission, on the facts known to them at that time. The facts disclosed in this application, as well as our conclusion in regard to the validity of the Second Erasmus Commission and our reasons for that conclusion, would have to be considered by both of them before taking any decision.

[43] Consequently, in my view, this Court, for the above reasons, should not in the exercise of its discretion, entertain the respective claims of the parties to determine the lawfulness, or otherwise, of the First Erasmus Commission, on the ground that there is no actual, or live dispute, before us in this regard.

44.1 There is a strong presumption in South African law that legislation is not intended to operate with retrospective effect, or in such a manner as to interfere with existing rights and liberties. This presumption applies equally to legislation that authorises administrative action
Baxter - Administrative Law-page 355
44.2.	The Premier's authority to establish commissions of inquiry is found rn Section 127 (2) (a) of the Constitution and Section 1 (1) (a) of the Western Cape Provincial Commissions Act 10 of 1998. .. No authority is granted to the Premier in either the Constitution or the Act, to establish a commission of inquiry with retrospective effect.

It is clear that such authority was not possessed by the Premier.

[46] Turning to the challenges mounted by the City and the DA against the lawfulness of the Second Erasmus Commission, they are

46.1	The Premier does not possess an independent power to appoint a commission to investigate the affairs of a municipality. His power is restricted to the appointment of a commission in terms of Section 106 (2) of the Systems Act, as an adjunct to the appointment of investigators by the MEC in terms of Section 106 (1) (b) of the Systems Act.
46.2.	The Premier's decision to appoint the Second Erasmus Commission is vitiated on the constitutional principle of legality, as a result of bad faith and an ulterior motive on the part of the Premier. It is alleged that the Premier did not hold the honest belief that a commission was warranted for any lawful purpose, and his intention was to use the commission for the ulterior and improper purpose of attempting to embarrass, or discredit, political opponents. 

46.3 	The appointment of Judge Erasmus, as a serving Judge, to chair the Second Erasmus Commission was incompatible with the separation of powers ordained in the Constitution and therefore unlawful and invalid.

Does the Premier possess a power to appoint a commission to investigate the affairs of a municipality independently of the provisions of section 106(2) of the Systems Act?  - .

[47] Dealing firstly with the Premier's power to appoint a commission to investigate the affairs of a municipality. The issue is whether the

Should the power of the Premier be limited in such a manner, then the Premier would not have possessed the power to appointthe Second Erasmus Commission, as he did not act in terms of Section 106 (2) of the Systems Act when doing so. In such event the Second Erasmus Commission falls to be set aside as unlawful.

[48] The countervailing arguments advanced before us in this regard are comprehensive and detailed. Consequently, a proper resolution of this issue requires that they be fully set out in this Judgment to facilitate their proper consideration. "The argument advanced by the City and the DA is as follows:

48.1 The Constitution establishes and recognizes differing spheres of responsibility for national, provincial and local government. A province has the duty in terms of Chapter 3 of the Constitution to:

48.1.1      Respect the status, powers and functions of local government (Section 41 (1) (e)).

48.1.3.	To exercise its functions In such a manner as not to encroach on the functional or institutional integrity of local government (Section 41 (1) (g)).
48.1.4.	To co-operate with local government institutions in mutual trust and good faith (Section 41 (1) (h)).

48.2 These duties are reinforced by Section 3 of the Systems Act which states that the provincial government must exercise its executive and legislative activities in a manner that does not compromise or impede a municipality's ability, or right to exercise its executive and legislative authority! In terms of Section 52 (1) of the Constitution of the Western Cape No. 1 of 1998, the ability or right of a municipality to exercise its powers, or perform its functions, may not be compromised, or impeded.

48.3 The very different nature of local government in the new constitutional order was recognised by the Constitutional Court In the case of

City of Cape Town & another v Robertson & another 2005 (2) SA 323 (CC) at paragraphs 53 - 60
where it was noted that municipalities previously were creatures of statute and enjoyed only delegated or subordinate legislative powers, derived exclusively from ordinances or Acts of Parliament.

48.5.	Section 139 authorises intervention where a municipality cannot, or does not fulfil an executive obligation in terms of the Constitution or legislation (Section 139 (1)) or cannot or does not fulfil an obligation in terms of the Constitution or legislation, to approve a budget or other necessary revenue-raising measures (Section 139 (4)) or is, as a result of a financial crisis, in serious and persistent breach of its obligation to provide basic services, or to meet its financial obligations (Section 139 (5)).

48.6    The Constitutional Court in

Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa
1996
1996 (4) SA 744 (CC) at paragraph 370 (the Certification Judgment)

48.7.	In terms of Section 151 (3) of the Constitution a municipality has the right to govern; on its own initiative, the: local government affairs of its community, subject to national and provincial legislation. In terms of Section 151 (4) the national and provincial government may not compromise, or impede the municipality's ability, or right to exercise its powers, or perform its functions. It is submitted that the Erasmus Commission will impede the City's ability or rights in this regard as senior officials will be taken away from their municipal duties.

48.11.	As regards Section 154 (1) of the Constitution which provides that the national government and provincial government must by legislative and other measures support and strengthen the capacity of municipalities to manage their own affairs, exercise their powers and perform their functions, it is submitted that the establishment of a provincial commission is neither a legislative or other measure, by which the capacity of municipalities to achieve these objectives is supported and strengthened.

48.13.	As regards Section 106 (1) (b) of the Systems Act, the MEC is only entitled to appoint investigators if he has a reasonable belief of suspected misconduct of the requisite severity, coupled with a genuine belief that the appointment of investigators is necessary.:

Democratic Alliance Western Cape & Others
v
Minister of Local Government Western Cape & Others
2005(3) SA 576(C)

48.15. 	It is submitted that the restrictions imposed upon the MEC by Section 106 (1) are consistent with the constitutional autonomy of municipalities. An enquiry into a municipality's affairs by investigators enjoying commission powers is a potentially serious invasion of the municipality's constitutional autonomy. The appointment of investigators may create intergovernmental conflict as in the present case. The Legislature did not intend the MEC to have a free hand. He should be entitled to investigate only in cases of serious misconduct and on objectively reasonable grounds.
48.16.	The obligation imposed on the MEC by Section 106 (3) to submit a written statement to the National Council of Provinces, motivating his action, is an indication of the serious light in which the legislature viewed such intervention by the MEC and its desire to subject his actions to a measure of hierarchical scrutiny and oversight.

Minister of Local Government, Housing and Traditional Affairs (KwaZufu Natal) v Umiambo Trading 29 CC and others 2008 (1)SA 396 (SCA)

48.19.2	It is implicit in Section 106-(2) that when investigators have been appointed under Section 106 (1) (b) they may, in terms of Section 106 (2) be vested with commission's powers under provincial commissions' legislation {if any) or under national legislation.

48.19.4 	The Court in Umlambo's case was not required to consider a case where the commission appointing power was exercised independently of a Section 106 decision by the MEC. Umlambo's case was the converse. A Section 106 decision had been taken by the MEC without an accompanying decision by the Premier to appoint the investigators as commissioners.
48.20.	If the Premier possessed an independent power to appoint a commission to enquire into a municipality's affairs, it would give rise to an absurdity. In such a case the MEC would never have to form the reasonable opinion required by Section 106 (1) and his involvement would be rendered entirely unnecessary. The statutory requirements carefully formulated in Section 106 {1) to limit undue intrusion into municipal affairs would become a dead letter. Whether the MEC had acted reasonably or not, would be irrelevant as the Premier would be entitled to say that he enjoyed an independent power to appoint the commission, which was not dependent for its validity on anything done by the MEC.
48.21.	In addition the Legislature's intention that such intervention should be the subject of a motivated report to the National Council of Provinces would be frustrated.

Democratic Affiance and Another v Masondo NO and another 2003 (2) SA 413 (CC) paragraphs 12 and 59

48.22.5	The Western Cape Commissions Act is the exclusive source 		of the Premier's power to appoint coercive commissions. In 		the present case, the Erasmus Commission was established 		with coercive powers under the Western Cape Commissions 		Act. !t is such provincial commissions legislation which 			Section 106 of the Systems Act has in mind. When Section 		106 was enacted, the Premiers of the. provinces already 		possessed their commission-appointing;.'responsibilities, 		under Section 127 (2) (e) of the Constitution,:.; Section 106 		(2): of the Systems Act was not concerned with that pre			existing constitutional responsibility, but with provincial 			commissions legislation, which might or might not exist.

48.23 The City and the DA therefore submit that for the above reasons the Premier did not have the independent power to establish the Second Erasmus Commission.

[49] Turning to the countervailing argument of the Premier and the MEC.
49.1.	A Premier's power to appoint commissions of inquiry derives 	entirely from the Constitution itself in the form of Section 127 (2).

49.5.	The Premier's sole authority to appoint commissions means that he or she is solely responsible for the manner in which he or she 	exercises this power and individually accountable to the provinciallegislature for the exercise of the power

49.6 The powers of the Provincial Government of the Western Cape in relation to the City are not limited to those under Section 139 of the Constitution, and the City's autonomy is equally not untrammelled for the following reasons:

i

[53] The Commission also does not interfere in local government affairs because it merely collects information.

[57] The City's contention that the power of the Premier to appoint a commission to investigate the conduct of a municipality is located in Section 106 (2), as interpreted in the Umlambo case, is incorrect for the following reasons:

57.1 	The decision in the Umlambo case confirms that Section 106 (2) does not apply when a Provincial Commissions Act exists. A commission set up in these circumstances is obviously informed by the MEC's investigation, but is instituted by the Premier, applying his mind independently, in terms of his powers in Section 127 {2) (e) of the Constitution, Section 37 (2) (e) of the Western Cape Constitution and Section 1 (1) (a) of the Western Cape Commissions Act. Section 106 (2) does not separately empower the Premier to appoint commissions.
57.2.  The Premier has almost untrammelled powers to appoint commissions of inquiry, quite independently of Section 106 of the Systems Act. This power to appoint commissions is not reduced or ousted, when a Section 106 (1) (b) investigation exists.

57.4.  The Premier has made it clear that the Commission is not a precursor to an intervention in the City's affairs in terms of Section 139 of the Constitution, which provision entitles the Provincial Government of the Western Cape in serious cases, to wholly or partially take over the administration of a municipality, or to appoint

[58] Having considered these opposing arguments, it seems to me, that the issue for determination is whether the object of the Legislature in enacting Section 106 of the Systems Act, was not only to define the circumstances in which the MEC could lappoint investigators to enquire into the affairs of a municipality, but also the circumstances in which the Premier was entitled to appoint a commission, with coercive powers to enquire into the affairs of a municipality.

President of-RSA and others vSARFU and oihers2000 (1) SA1 (CC)paragraphs 140-148'and 165-167

that the decision of the President to establish a commission of inquiry^ under Section 84 (2) of the Constitution  did not constitute— administrative action:   As regards the second decision by the:__ President to make the Commissions Act applicable and whether this also constituted administrative action, the issue was left open.

[63] Consequently, the President's power to vest commissions of inquiry with coercive powers is limited, whereas the Premier's power is not.

[64] In ascertaining the effect of Section 106 (2), upon the power of the Premier to appoint a commission of inquiry with coercive powers to investigate the affairs of a municipality in terms of the Western Cape Commissions Act, read with Section 127 (2) (e) of the Constitution, and Section 37 (2) of the Constitution of the Western Cape, the object is to ascertain from the language employed the intention which the Legislature meant to express

					Protective Mining & Industrial Equipment Systems vAudiolens
1987(2) SA 961 (A) at 991 G

Audiolens supra at 991 G to 992 A and authorities there cited

eln the absence of applicable provincial legislation, the provisions of sections 2, 3, 4, 5 and 6 of the Commissions Act 1947 (Act N6 8 of T947) and the regulations made in terms of that Act apply with the necessary changes as the context may require, to an investigation in terms of subsection (1){b)."

Umlambo's case supra at page 400 F - 401 A.
[66] The background against which a statute was enacted and the object which the Legislature intended to obtain, are of great importance

Nedbank Limited v Norton 1987 (3) SA 619 (N) at 627 A

[67] The following background factors to the passing of the Systems Act and in particular Section 106 are, in my view, relevant:
67.1.	In the preamble, the Act is said to be part of a suite of legislation that gives effect to the new system of local government.
67.2.	The constitutional order of local government emphasised the autonomous nature of local government.
67.3.	There was an obligation on the provinces to provide for the monitoring and support of local government by legislative or by other means in terms of Section 155 (6) (a) of the Constitution.
67.4.	At the time the Systems Act came into operation on 01 March 2001, eight of the nine provinces .in South Africa had legislation dealing with the appointment of commissions by the relevant Premier in terms of Section 127 {2} {e} of the Constitution.
Umlambo's case supra at page 400 footnote 1

At the time the Systems Act was assented to by the Legislature on 14 November 2007, the Western Cape Provincial Commissions Act was already in existence, having been assented to on 29 May 1998, with the date of commencement being 01 June 1998.
67.5.	The provisions of the Western Cape Provincial Commissions Act must however be read subject to the provisions of the Systems Act in terms of the hierarchical structure of legislation.
67.6.	The source of the Premier's power to appoint a commission of inquiry resides in Section 127 (2) (e) of the Constitution, but his power to appoint a commission with coercive powers resides in the Western Cape Provincial Commissions Act, in terms of which there is no restriction upon the vesting of coercive powers in the commissioners.

[68] The purpose, or object, of the Legislature must have been to pass legislation which struck a balance between the constitutional obligation imposed on the provinces to monitor locai government in terms of Section 155 (6) (a) of the Constitution, and the circumstances under which the constitutional autonomy of local government could be impaired by way of an investigation or commission, in which the commissioners were invested with coercive powers.

[69] The object of the Legislature must also have been to ensure that before investigators were invested with coercive powers, the requirements of Section 106 (1) were complied with. Such an objective would be consistent with:
69.1.	The Constitutional Court's approval of the restraints placed upon the President's power to grant coercive powers to commissioners and
69.2.	The absence of any restraint upon the Premier :to grant coercive powers to commissioners in terms of the Western Cape Commissions Act. 

[70] If the Premier was entitled to appoint a commission, in terms of the Western Cape Provincial Commissions Act with the automatic conferral of coercive powers, to investigate the affairs of a municipality without regard to the provisions of Section 106 (1), it would render these provisions superfluous. What would be the point in establishing such stringent requirements to be complied with by the MEC, whose concern is local government, when the Premier could ignore them by establishing a commission independently? It is a trite principle of statutory interpretation that a statute should not be construed so as to render any part of it superfluous.

CIR v Golden Dumps (Pty) Limited 1993 (4) SA 110 (A) at 116 F-117 B

[71] In my view, the intention of the Legislature in enacting Section 106 of the Systems Act was to make provision for the exercise by the Premier of his power to appoint a commission of inquiry in terms of the Western Cape Provincial Commissions Act to investigate the affairs of a municipality.

[72] This does not constitute an attempt to diminish the authority held by the Premier to appoint commissions of inquiry in terms of Section 127 (2) (e) of the Constitution, nor Section 37 (2) of the
Constitution of the Western Cape, as such authority does not encompass the authority to grant coercive powers to a commission.

[73] In so far as Section 106 limits the power of the Premier, in terms of the Western Cape Provincial Commissions Act, to appoint a commission to enquire into the affairs of a municipality, I regard this as a necessary implication from the wording of Section 106, because the very situation which the Section was designed to remedy was the uncontrolled investigation of the affairs of municipalities by the province

Nedbank case supra at 626 /

[75] A further argument advanced by Mr. Rogers on behalf of the City in this regard also has to be considered.

[76] It is submitted that a consideration of the legitimate purposes for which a provincial commission can be established, supports the conclusion that the Premier had no independent power to establish a commission to investigate the matters in question. The constitutional principle of legality requires that the decision to appoint the commission, must be rationally connected to the purpose for which the commission-appointing power was conferred.

[77] Although Sections 127 (2) (e) of the Constitution and Section 37 (2) (e) of the Western Cape Constitution, do not state the purpose for which the power was conferred, the purpose must have been to enable the Premier to decide whether or not to embark on a particular course of action. The commissions report must be one which could rationally result in some legitimate action by the Premier, or provincial government

[78] The right of the Western Cape Provincial Government to intervene is confined to Section 139 of the Constitution and unless there was a plausible basis for supposing that the commissions report could culminate in lawful intervention under Section 139, there would be no rational connection between the exercise of the power and its purpose.

[83] A reference to Sections 205 (3), 206 (3) and 206 (5) (a) of the Constitution, indicate that it is inconsistent with the constitutional role of the Police and the National Prosecuting Authority, that-provincial commissions of enquiry be set up to investigate suspected crimes.

[84] The commission-appointing power of the Premier can only be used for legitimate purposes, which does not include the investigation of crime.

[85] The submission is therefore made that for these additional reasons the Premier did not possess a power independent of Section 106 (2) to establish the Second Erasmus Commission.   .

85.1 Put differently, as I understand the argument, if the Premier possesses a power to appoint a commission of inquiry to investigate the affairs of a municipality independently of Section 106, his conduct was not justified in the present case, because of the absence of a rational connection between his decision and any envisaged action as a result thereof.

[86] Mr. Heunis submits that although the Premier has made it dear that the intention of the Commission has never been as a precursor to intervention under Section 139 of the Constitution, this does not mean there is no possible action which the provincial government can take, based upon the outcome of the commissions. He submits that the City may want to use the report to follow up on disciplinary action against particular councillors or officials, or the report may simply be handed to the City to decide what future action to take, -

[88] The contention of Mr. Heunis, as I understand it, is that the report does not have to be one which could rationally result in some legitimate action by the Premier or the Provincial Government against the Municipafity. In my view this cannot be so. When the constitutional autonomy of local government under the constitution is given proper weight, it is vital that there be a rational connection between the decision and some envisaged action to be taken as a consequence by the Premier or the provincial government, in respect of the particular municipality.

[89] When regard is had to the fact that any commission appointed by the Premier in terms of the Western Cape Provincial Commissions Act, is automatically vested with coercive powers; the principle of legality demands such a rational connection. In other words, before the Premier may lawfully decide to establish a commission with coercive powers to investigate, the affairs of. a municipality,; the subject matter of the investigation must be of such a nature, that intervention by the Province in terms of Section 139 of the Constitution, could rationally result from the commissions report.

[91] On such an approach, the Investigation of criminal conduct by a commission could not be rationally justified, unless the nature of such suspected conduct was relevant to establishing conduct on the part of a municipality, as envisaged in Section 139 of the Constitution.

[92] In regard to the issue of the commission investigating possible criminal conduct, Mr. Heunts submits that:

[93] In my view, the investigation of criminal conduct as a primary task by a commission of inquiry is inherently undesirable for the reason that it leads to a blurring of the functions of the executive and the police. For reasons which I will deal with later in this judgment, the independence of the Police and the National Prosecuting Authority is a vital component in any democratic state.

[95] Consequently, even if the Premier possesses such an independent power, he was not entitled on the facts of this case, to appoint the Second Erasmus Commission.

[96] Turning to the challenge based upon the ground that the Premier's appointment of the Second Erasmus Commission is vitiated on the constitutional principle of legality, as a result of an ulterior motive on the part of the Premier.

[98] The decision by the Premier does however have to conform with the constitutional principle of legality. The principle is as stated in

Masethla v President of the RSA and another 2008 (1) SA 566 (C) at 594 paragraphs 79-81

The official must act within the law and in a manner consistent with the Constitution. He, or she, must not misconstrue the power conferred. Secondly, the decision must be rationally related to the purpose for which the power was conferred. If not, the exercise of the power would, in effect, be arbitrary and at odds with the rufe of law.

[100] It is clear that if the Premier did not hold such an honest belief, and possessed the alleged ulterior and improper-purpose, his decision would not be rationally related to the purpose for which the power was conferred and it would be arbitrary and unlawful. The decision would therefore fall to beset aside as unlawful.

[101] The crux of the matter therefore is the state of mind of the Premier when he decided to establish the Second Erasmus Commission. Did he honestly believe that its establishment was justified? Did he possess such an ulterior and irnproper purpose?

[103] The response of Mr. Heunis is as follows:

1032	if this were found to be so, this. Court would then have to go further and find that not even the Premier subjectively believed that he had any good reasons,
1033	Even if this Court were to find that some or even all of his concerns were wrong, there can be no justification for finding that the Premier did not subjectively believe he had. any good reasons, particularly in the absence of oral evidence. This would require a factual finding that the Premier was positively motivated by some malice towards the City and would require a rejection of the Premier's factual assertions, that he was not biased and acted for what he believed were good reasons. To do so the Premier's assertions would have to be rejected as concocted.
103.4 As regards the issue of the hearing of oral evidence and the assertion that the Premier would simply continue to deny any bad faith, he submits that the fact remains that the Court has been deprived of the opportunity to hear evidence and make its own credibility findings.

[104] The fact remains however, that neither the City nor the DA have sought to refer the issue to oral evidence, and consequently any factual disputes must be resoived in accordance with the dicta in

Plascon-Evans Paints (Pty) Ltd. v RiebeekPaints (Pty) Limited
1984 (3) SA 623 (A) at 635 C

In this regard the City submits that the Premier's assertions are farfetched or clearly untenable and may be rejected on this basts.

[105] What must be considered at the outset is the correct approach in drawing inferences on the evidence as to the Premier's state of mind.

[106] In this regard valuable guidance may be found in those decisions in the field of contract, dealing with what conduct constitutes fraud in the context of false representations, made by one party to the other. Certain dicta are particularly relevant in the context of determining the state of mind of a person who makes a false representation. I do not regard the use of such dicta in. the present context as inappropriate, because they deal with the issue of drawing inferences as to an individual's state of mind, from the objective facts.

[107] As stated in

RvMyers48(1)SA375Aat383A

"absence of reasonable grounds for belief in the truth of what is stated may provide cogent evidence that there was in fact no such belief.
[108] The principle was followed in
Hammanv Moolman 1968 (4) SA 340 (A) at 34? A
where the following was stated:

The fact that a belief is held to be not well founded may, of course, point to the absence of an honest belief but this fact must be weighed with ail the relevant evidence in order to determine the existence or absence of an honest belief.

[109] The Premier has asserted that he was not biased and acted for what he believed were good reasons. The challenge by the City and the DA is that he did not hold such an honest belief. In other words, the Premier has misrepresented his own state of mind. In my view, the correct approach is as follows:

109.2 The finding of an absence of an honest belief by the Premier in the reasons for establishing the Second Erasmus Commission, would then have to be considered together with all of the relevant evidence, to decide whether he, in addition, possessed the ulterior purpose of attempting to discredit or embarrass political opponents, by establishing the Second Erasmus Commission: However, a finding of an absence of an honest belief by the Premier, is not necessarily a prerequisite for finding that the Premier possessed an ulterior motive. If the evidence establishes the presence of such an
ulterior motive, this would constitute cogent evidence of the absence of an honest belief on the part of the Premier.

109.3 I therefore do not agree with the submission of Mr. Heunis that even if it is found that there were no reasonable grounds for the belief held by the Premier, a finding that the Premier did not subjectively hold such a belief would not be justified, in the absence of oral evidence, unless a factual finding could be made that the Premier was positively motivated by malice towards the City and his assertions that he believed he acted for good reasons, could be rejected as concocted. Such an approach ignores the fact that the absence of reasonable grounds for the professed belief, may in itself provide "cogent" evidence that the belief itself was hot honestly held, without having to find that the Premier was motivated by malice towards the City. The issue of malice would be relevant to the issue, of whether the Premier possessed the ulterior purpose of discrediting, or embarrassing, political opponents.

[110] A further consideration which is relevant to the issue of whether the Premier possessed an honest belief that good reasons existed for the establishment of the Second Erasmus Commission, is the effect of any failure by the Premier to make enquiries to ascertain the true state of affairs. Again, although expressed in the context of false representations in the field of contract, dicta dealing with this principle can, in my view, be applied in the present dispute, for the reason I have already given.

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"though in fact entertained by the representor may have been itself the outcome of a fraudulent diligence in ignorance - that is, of a wilful abstention from all sources of information which might lead to suspicion, and a sedulous avoidance of all possible avenues to the truth, for the express purpose of not having any doubt thrown on what he desires, and is determined to, and afterwards does (in a sense) believe"

Myers case supra at page 382

[112] In examining the evidence relevant to the present enquiry, regard must be;had not only to the information before the Premier at the time of the establishment of the Second Erasmus Commission of Inquiry, but also to the information before the MEC at the time of the initiation of the Section 106 (1) (b) investigation and before the Premier as to the establishment of the First Erasmus Commission of Inquiry. This is because the Premier states that this was the information that informed his decision to establish the Second Erasmus Commission of Inquiry. The fact that I have declined to examine the lawfulness of the MEC's Section 106.(1) (b) investigation and the lawfulness of the establishment of the First Erasmus Commission of Inquiry, for the reasons set out above, can of course have no bearing on this aspect.
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[113] I propose dealing at the outset with the issue of whether the Premier wilfully failed to make enquiries^ to ascertain the true state of affairs, before establishing the First and thereafter the Sedond Erasmus Commission, and if so, whether any inference may as a result be drawn on the evidence of the presence or absence of an honest belief on his part, that good reasons existed for the establishment of the Second Erasmus Commission.

[114] Of relevance to this issue is the assertion by the Premier that the City was unco-operative in dealing with the concerns of the MEC and himself. The initial queries by the MEC in terms of Section 106 (1) (a) of the Systems Act were in writing dated 26 October 2007 and 14 November 2007. They were both directed at the City Manager. In respect of the letter dated 26 October 2007, the City Manager replied by letter dated 29 October 2007. The Speaker of the City also replied by way of his letter dated 01 November 2007, because the City Manager was unable to respond to certain of the queries raised, and referred them to the Speaker for reply- In my view, the.queries raised by the MEC were fully and properly replied to by both the City Manager and the Speaker. The City Manager and the Speaker both stated that they trusted that they had fully answered the MECs queries.

[117] There is no basis for any contention that the City was not prepared to cooperate. The response however, on 27 November 2007, was the decision by the MEC to establish the Section 106 (1) (b) investigation, with persons to be designated as members of a commission, followed by the establishment of the First Erasmus Commission by the Premier on 04 December 2007.

The willingness of the City to co-operate is also illustrated by thelfact that even after the announcement by the MEC of the appointment of a commission, the Acting City Manager wrote to the MEC on 29 November 2007, setting out further information and possible remedial steps he intended taking.

[118] As regards the establishment of the Second Erasmus Commission, the City had provided details of its challenge to the validity of the First Erasmus Commission afrcMhe Premier had responded by saying that he would obtain an evaluation of the evidence by the evidence leader of the information collected for the First Erasmus Commission. He added that if the evaluation of the evidence indicated an exercise in futility, he would be inclined to abandon the Commission.

[119] However, the most obvious source of information to re-evaluate the need for the establishment of a commission, namely the City, was ignored. It must have been patently obvious that the City had been given inadequate opportunity to address the concerns of the MEC and the Premier, before the First Erasmus Commission was established. There could be no concern that the Mayor would not cooperate in dealing with any queries, because as pointed out above, I have accepted the Premier's assertion that he believed that the Mayor and the City would co-operate with the establishment of the Second Erasmus Commission, and the Mayor would be pleased at the widening of the Commission's terms of reference, to include the conduct of Chaaban. If the Premier believed that the Mayor would co-operate with the commission, then he must have believed that the Mayor would co-operate in dealing with any queries, the object of which would be to re-evaluate the need for such a commission.

Myer's case supra at page 382
The issue is whether such wilful abstention was motivated not only by a suspicion that enquiries might be an avenue to the truth, with the express purpose of not having any doubt thrown upon his concerns or beliefs, but also by the wish to embarrass political opponents] In addition, the enquiry is also directed at determining what facts would have been revealed to the Premier, by enquiries directed to the City and whether these facts should reasonably have allayed his concerns.

122.1	The investigation which the City commissioned from George Fivas & Associates (GFA) was not tailored to suspected breaches of the Code for Councillors of the City by Chaaban, but was a sprawling investigation to investigate every aspect of Chaaban's persona* life. This raised the reasonable suspicion that the true intention was to identify councillors who met with Chabaan and collect politically damaging information.
122.2	That unlawful surveillance methods were used in contravention of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (the "Communications Act"). This indicated that, at the very least, the investigation was not one in terms of the Code, which in terms of Item 14 (7) of the Code, was required to follow the rules of natural justice.

122.6	The additional services offered by GFA both before and during the fioor-crossing period, appeared to be a full scaie surveillance project supposedly to protect the Mayor and the Speaker. The security of councillors should have been dealt with by the SAPS. However, the City ignored its own policies in this regard.

[123] The response of the City to these concerns is as follows:

In the first quotation, the background investigation on Chaaban's business links etc., was specifically related to Chaaban's conduct concerning the bribing of politicians. In the second quotation, the investigation into Chaaban's connections, friends * and financial resources, his influence in crime syndicates were -linked to threats and intimidation by him against councillors and-were aimed at ascertaining the credibility of the threats and Chaaban's ability to carry them out.

The City therefore submits that the investigation was directed at the legitimate concerns of the Speaker, and it was not for the Premier to dictate how the Speaker should go about his duties under Item 13 of the Code for Councillors.

I will in due course deal with the appropriateness of his receipt of such evidence, but for present purposes the following is said at paragraph 11.3.8:

"I have found no evidence to dale that 3rd party monitoring of conversations took [place] without the permission of one of the parties to the conversation''

As regards the Premier's concern that such surveillance was in breach of a statutory duty to observe natural justice in accordance with Item 14 (7) of the Code, the City submits that:

(Item 14) must be in accordance with the rules of natural justice. The investigation in question is one contemplated by Item 14 (1), i.e. an investigation by the council culminating in a finding, or an investigation by a council sub-committee, culminating tn a recommendation to the council.

123.3.	In terms of the Speaker's report, he conducted his investigation under Item 13 (1) (a). He afforded Chaaban the right of reply required by Item 13 <1)-(b). The Speaker then referred the matter to the Council in terms of Item 13 (1) (c) for action in accordance with Item 14. It was in relation to that further process by the Council's disciplinary sub-committee that Item 14 (7) applied.

123.3.4 	It is submitted that there is nothing unlawful about covert investigation pursuant to Item 13 (1) (a), because it may be that the only way for the Speaker to procure evidence of wrongdoing by the councillor is through such an investigation. It is submitted that ratepayers are entitled to be governed by councillors who observe a high standard of conduct, and the Speaker ought not to be unduly fettered in an investigation aimed at vindicating this public right.

123.4 The next concern is that the City was paying for an investigation which was for the benefit of the DA. The Speaker Smit alleged in his founding affidavit; that he gave the investigative instruction to GFA, which was not denied by the Premier in reply.

"According to Mr. SeEfe when he put the question, Mr. du Toit quickly put him in his place and told him that he was not acting for the DA, but for the City and he could not give Mr. Selfe any information and they parted ways shortly thereafter. Upon listening to the recording of the meeting between Mr Selfe and Mr. du Toit it appears that Mr. du Toit did inform Mr. Selfe that ne could not give any feedback to Mr. Selfe as he is only meant to give feedback to Mr. Smit".

"Mr. du Toit would introduce himself to the people he will interview as an investigator from the Speaker's office".

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The Mayor states that this was a call that she missed and that her cell phone records confirm no telephonic contact at all with du Toit until 04 October 2007, after he was arrested. This was also the first time she spoke on the telephone with van Heerden. The first time she met du Toit and van Heerden was in August 2007.

123.16.1	The City denies this and points out that this was never raised as a concern by the MEC.; The City Manager, in his letter dated 21 November 2007 to the MEC, dealt in detail with the quotations received from GFA, why he had approved payment of them and the deviations he had authorised in that regard.

As regards the alleged failure to report the matters to the SAPS, the City points out that:

123.17.2	On 26 June 2007, Du Toit of GFA and acting on behalf of the Speaker, met with Superintendent Siegelaar and handed him a transcript and statements, asking Siegelaar to investigate.
123.17.3	The Speaker contacted Siegelaar to ascertain progress. On being told that nothing was being done, he asked Siegelaar to call at his office, which Siegelaar did.
123.17.4	At the meeting the Speaker insisted on being given a reference number for the investigation, even though Siegelaar claimed that there was not enough to justify charges.

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123.19	The Mayor's public statement of 31 October 2007 was that charges had been laid and the Mayor complained of police inaction.
123.20	The next issue of concern to the Premier was that the additional services offered by GFA before and during the floor-crossing period, appeared to be a full scale surveillance project, supposedly to protect the Mayor and the Speaker. The security of councillors should have been dealt with by the SAPS. However, the City ignored its own policies in this regard.

123.20.1 The City's submissions in this regard are that the evidence before the MEC and therefore the Premier, was that GFA submitted a third quotation dated 20 August

123.20.2 The City states that the statement by the City Manager is borne out by the fact that GFA produced no further report, submitted no further invoice and received no further payment. The City points out that the quotation indicates that the focus was to be on the risk Chaaban posed to the personal security of the Mayor and the Speaker.

123.21 A further concern of the Premier, which arose after the establishment of the First Erasmus Commission, but before the establishment of the Second Erasmus Commission, was the issue of possible financial inducements paid to Councillor Arendse in Cape Town, to resign from the Independent Democrats (ID) and to stand for the DA. He states that evidence arose that Arendse may have been offered a position as a sub-council chair as an inducement to resign from the ID. A contract purportedly prepared by an attorney at the behest of the DA's provincial leadership was prepared for Councillor Arendse. The Mayor was aware of this corruption, which it appears she used as a basis to refuse to elevate Councillor Arendse to a sub-council chair, after he was elected as a DA Councillor. It is alleged the Mayor failed to report this corruption for almost a year and a half, and no investigation was undertaken to ascertain whether there had been a breach of the Code. The Mayor only did so to preempt the Erasmus Commission in order that she would not have to explain her failure to compiy with her fiduciary duties. The Premier maintains that this incident illustrated that the Mayor and the DA, may have been complicit in the type of actions for which it condemned Chaaban.

123.21.1 The response of the Mayor is that after Arendse was elected as the DA candidate, he approached her with an agreement apparently signed by the DA's provincial chairperson, Kent Morkel, in which Arendse was promised a sub-council chair. She states she rejected this out of hand, believed the attempted corruption had been thwarted and nothing more needed to be done. However, when in February 2008 the disaffected Arendse and Morkel, began to speak publicly about their wrongdoing she concluded if they wanted a public ventilation of their behaviour, it would be best for this to be dealt with by the courts, rather than a commission of inquiry, and she therefore laid a charge with the police.

123.22.1 The response of the DA to these concerns is that certain councillors in George, at their own initiative, chose to remove themselves from George during the 2007 floor-crossing window period, to escape what they contended was the remorseless pressure brought to bear on them to cross over. The time was spent work-shopping in seclusion at a resort outside George. They were subsequently each compensated and re-imbursed with an amount of R15,OOG.0O for the two week exercise. The necessary declarations, it is alleged have been signed by the councillors concerned in respect of the remuneration received. The DA states that it has instituted a full investigation and if there is any evidence of criminal misconduct, the DA will refer the matter to the SAPS.

123.22.2 As regards the issue of the SMS and the retention of GFA to investigate this issue, the DA states that this issue relates to an SMS allegedly circulated by Councillor P. Hill of the City, at the National Congress of the DA in 2007, where the Mayor was elected as the National Leader of the DA. The SMS was seen as.mischievous and there was doubt whether in fact it originated* from Councillor Hill, Mr. Selfe of the DA states that Mr. Theuns Botha, the leader of the DA in the Western Cape, has confirmed that on his own initiative he requested Mr. van Heerden of GFA, to ascertain whether or not the SMS had been circulated by Councillor Hill. Neither the DA, nor the George Municipality, were responsible for this service of GFA, which was carried out as a favour to Botha. Selfe alleges that a telephone call by the Premier would have revealed the true state of affairs:

123.23 A consideration of the concerns of the Premier together with the responses of the City and the DA in my view, reveals that any concerns of the Premier should have been allayed if he had directed the appropriate enquiries to the City and the DA, because their responses show that:
123.23.1	The nature and ambit of the investigation was determined by GFA as the experts.

123.23.3	GFA was engaged by the City and the City was not paying for an investigation which was for the benefit of the
123.23.4	The Mayor was not involved in appointing GFA, only had telephonic contact with the representatives of GFA on 04 October 2007 and only met representatives of GFA in August 2007.
123.23.5	There was nothing sinister in the appointment of GFA's Mossel Bay Franchise and not the GFA company which was an approved supplier and that this was caused by an administrative oversight.

123.23.6
There was nothing sinister in the payment of an amount of R3.5OO.00 to GFA for services rendered before being

appointed by the City, and that steps would be taken to recover this amount if payment was unjustified.

123.23.7	Invoices were not manipulated and the approved deviations resulted in sufficient funds being available to pay GFA.
123.23.8	The initial quote by GFA, as well as GFA's first report, dealt with the physical threat posed by Chaaban.
123.23.9	Chaaban's conduct had been reported to the SAPS.
123.23.10	The third quote by GFA, focused on the risk posed by Chaaban to the personal security of the Mayor, but no work was done by GFA in respect of this quote.
123.23.11	There was no need for the Speaker to observe natural justice in the investigation he conducted in terms of item 13 (1) (a) of the Code.
123.23.12	The Mayor had laid criminal charges against Arendse and Morkel in connection with the election of Arendse, and the Premier was already in possession of the material facts, including the issue of any delay on the part of the Mayor in doing so.
123.23.13	The investigation by GFA of the so-called SMS allegedly sent by Councillor Hill, was not at the behest of the DA, or the George Municipality.
123.23.14	On the papers before me, there is no evidence to cast doubt upon the veracity of these responses. Consequently, in my view, as the responses deal directly and fully with the Premier's concerns, they should have been allayed by appropriate enquiries.

123.24 What I find to be of particular importance however (and leaving aside what the Premier could have established by making appropriate enquiries), is that before establishing the Second Erasmus Commission the Premier in fact had the following evidence
before him:

123.24.1	 The interim report which stated that there was no evidence of illegal third party monitoring of conversations, and contained clear evidence that GFA were conducting the investigation at the behest of the City and not the DA. In addition, the interim report contained no evidence of meetings between the Mayor and GFA operatives, nor any telephonic contact between the Mayor and GFA operatives.

123.24.2 	The first quotation of GFA which made it dear that the ambit and nature of the investigation had been formulated by GFA.

123.24.4 The first report of GFA which made it clear that the issue of intimidation and threats by Chaaban was one of the primary objectives of the first investigation, therefore justifying their urgent appointment.
123.24.5 The Mayor had made a public statement on 31 October 2007, stating that charges had been laid and complained of police inaction.
123.24.6 The Mayor had laid criminal charges against Morkel and Arendse, albeit that the Premier believed that this had been done to pre-empt any investigation by a commission of inquiry.

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The appointment of GFA to investigate Chaaban.

Compliance by the City and/or councillors with the supply chain system in procuring the services of GFA.

The use of public funds for procuring the services of GFA.

Alleged payments by the City to GFA for services rendered by it to the DA.

[124] The evidence before the Premier was therefore of relevance and importance, and contrary to any beliefs or concerns he held in regard to:
124.1	The ambit and purpose of the investigation.
124.2	That the investigation was being carried out at the behest of the DA and not the City.
124.3	Payments made to GFA, deviations which had been authorised to pay them, as well as the need for their services.
124.4	The reporting of the matter to the SAPS.

[125] The evidence therefore cried out for further elucidation by the one source of such information, namely the City, by way of appropriate enquiries directed to the City on these issues, before the drastic step of appointing a commission of inquiry was taken.

[126] However, the issue of whether the Premier wilfully abstained from directing any enquiries to the City, in the light of this evidence, has to be considered together with the further issues of whether he held the suspicion that to do so would result in doubt being thrown upon his beliefs, and whether he harboured the ulterior motive of embarrassing political opponents by establishing the Second Erasmus Commission. This is because all of these issues are linked, as they bear upon the one enquiry, namely whether the Premier possessed an honest belief that good reasons existed for establishing the Second Erasmus Commission.

This issue however, cannot be determined until the lawfulness of two of the Premier's main sources of information have been considered.

"As Chairperson of the Commission, and in consultation with my fellow Commissioners, M/s Vermeulen and Mr. Papadakts, I have requested the evidence leader to prepare a progress report in which he sets out all the work done to date as welt as provide a summary of evidence received to date. This I have done in terms of the Commissioners' internal arrangements, as we are entitled to do. Advocate Petersen, the evidence leader, has now made that report available to me, and \ now enclose under cover hereof a copy thereof for your perusal and records".

"I must make it plain that I did not demand such an interim summary of the evidence, and did not seek any opinion on the information before the Commission i accepted that such evidence could only be ascribed: any probative value once it was tested in public hearings I understood that the summary of evidence was a document prepared by the evidence leader primarily for his own use, to keep track of the burgeoning documentary evidence before the First Erasmus Commission, and that in any event the information had largely been made public".

[130] The City submits that In the light of the covering letter of Erasmus, J., together with the content and form of the report itself, as well as the history of how it came about that such a report was

[131] The City submits that the evidence clearly establishes that the Premier solicited the report and it would not have been prepared if he had not asked for it on the following grounds:
131.1	On 07 February 2008 the Mayor wrote to the Premier initiating dispute resolution in respect of the City's attack on the validity of the First Erasmus Commission, and demanded that the proceedings be suspended pending this process.
131.2	On 11 February 2008 the Premier requested the First Erasmus Commission to postpone its hearings to allow him to take legal advice.
131.3	On the same day the Premier was reported in the press as follows:

"He said that though the Commission's public oral hearings had been suspended its other work including evaluating, gathering and pronouncing on evidence would continue. Based on what had already been done, there was room for an interim report, an issue he had raised with Erasmus. "He said ft is possible" Rasoo! said".

The Premier did not dispute that this report was accurate.

131.4 In his letter dated 22 February 2008, sent to the Mayor, the Premier stated

"Every person employed in the execution of the functions of the Commission, including any person appointed or designated to take down or record the proceedings of the Commission in writing or by mechanical means, or employed
to transcribe the record so taken down, must help preserve secrecy with regard to any matter or information that may come to his or her knowledge in the performance of his or her duties in connection with the said functions, except in so far as the publication of such matter or information is necessary for the purpose of the report of the Commission".

[135] Paragraph4 of the Regulations provides as follows:

"No person may communicate to any other person any matter or information which may have come to their knowledge in connection with the enquiry of the Commission^ or suffer or permit any other person to have access to any records of the Commission, except in so far as it is necessary in the performance of their duties in connection with the functions of the Commission or by order of a competent court"

[137] The Premier, who promulgated the Regulations, must also, in my view, have appreciated that his request for the.summary of evidence flew in the face of these very Regulations, that he was not entitled to the information requested, and his receipt of the information was therefore unlawful.
1034	
1035	

137.3 In my view, these do not constitute grounds-which preclude this Court from considering whether the receipt of this information was unlawful. The absence of a substantive challenge to the lawfulness of its receipt, and the fact that the City took no formal steps to prevent the Premier from receiving the information, cannot preclude this Court from considering this issue, particularly where it is relevant to determining the Premier's state of mind, when establishing the Second Erasmus Commission.

[138] Consequently, the information contained in the summary of evidence was obtained by the Premier unlawfully.
[139] The second main source of information relied upon by the Premier was the police in the form of Commissioner Petros who, during October 2007 disclosed to the Premier information discovered at the home of du Toit of GFA, during a search conducted at du Toit's home.

[140] This information included audio recordings of conversations found on du Toit's computer, which were played to the Premier, as well as electronic copies of quotations and invoices from GFA.

[141] At the request of the Premier, Commissioner Petros addressed the Provincial Cabinet on the evidence he had shown the Premier. Commissioner Petros did not show the members of the cabinet the evidence, but talked them through it As a consequence, it was decided that the MEC should address a Section 106 query to the City.

[142] The City submits that the sharing of this information by the police with the Premier, was unlawful and this would have been realised by any senior political figure with a modicum of appreciation for constitutionality and the rule of law, on the following grounds:

142.2	A search warrant is issued for a purpose and in the case of du Toit, to investigate the suspected crime of illegal monitoring. The documents and recordings, being the private documents and property of du Toit, could be used for no other purpose; than the criminal investigation. In accordance with the constitutionally mandated invasion of privacy required for criminal investigations, it is implicit in the search provisions of the Criminal Procedure Act No. 51 of 1977 that documents or articles seized under a search warrant must be used only for the mandated purpose.
142.3	On this basis it is submitted that the disclosures made by Commissioner Petros to the Premier were unlawful. 
142.4	It is also submitted that a consideration of the Constitution reveals that it was improper of Commissioner Petros to do so.

i
142.4.2	Section 206 (3) sets out the province's powers in respect of policing, and the province does not have an entitlement to receive information from the police on specific criminal investigations.

142.4.3	Section 206 (9) empowers the Provincial Legislature to require the provincial commissioner to appear before it, or any of its committees to answer questions and in terms of Section 207 (5) the provincial commissioner must report annually to the Provincial Legislature-    

It is submitted these provisions are in keeping with the view that the relationship of the police with government should be politically neutral. If the provincial commissioner is to give information, it should be to the Legislature (in which ail parties are represented), not the executive. The Premier is given no constitutional power to require a provincial commissioner to answer his questions.

142.5	The City has referred us to a number of Commonwealth cases, where the need for independence between the police and the executive, when it comes to criminal investigations has been emphasised.

142.6	In the case of

Rv Metropolitan Police Commissioner Ex parte Blackburn [1968] 1 Alt ER 763 (CA) at 769

Lord Denning had the following to say :

"I have no hesitation, however, in holding that, like every constable in the fand he [the Commissioner of Pol ice], should be, and is, independent of the executive".

R v Campbell [1999] 1 SCR 565 paragraph 27 
is the following dictum
"The Crown's attempt to identify the RCMP [Royal Canadian Mounted Police] with the Crown for immunity purposes misconceives the relationship between the police and the executive government, when the police are engaged in law enforcement A police officer investigating a crime is not acting as a government functionary or as an agent of anybody. He or she occupies a public office initially defined by the common law and subsequently set out in various statutes"

and at paragraph 29 the following was said

142.8	With regard to the conduct of the police, and in particular Commissioner Petros, in providing to the Premier and the Provincial Cabinet, the information which had been obtained as a result of the searches conducted at du Toit's home, with and without warrant, we have been referred by the City to the following cases.
142.9	In

Marcel v Commissioner of Police [1991] 1 Ail ER 845 (Ch)
Sir Nicholas Browne-Wilkinson V.C. {as he then was) stated the following:

"Powers conferred for one purpose cannot lawfully be used for other purposes without giving rise to an abuse of power. Hence in the absence of express provisions the 1984 Act cannot be taken to authorise the use and disclosure of seized documents for purposes other than police purposes".

142.10 In the later case of

Morris v Director of the Serious Fraud Office [1993] 1 Ail BR 788 (Ch)

'The compulsory powers of investigation exist to facilitate the discharge by the Serious Fraud Office (SFO) of its statutory investigative functions. The powers conferred by Section 2 are exercisable only for the purpose of an investigation under Section 1. When information is obtained in the exercise of those powers the SFO may use the information for those purposes and purposes reasonably incidental thereto and such other purposes as may be authorised by statute, but not otherwise. Compulsory powers are not to be regarded as encroaching more upon the rights of individuals than is fairly and reasonably necessary to achieve the purpose for which the powers were created. That is to be taken as the intention of Parliament, unless the contrary is clearly apparent".

142.11 These views were followed by the High Court of Australia in
Johns v Australian Securities Commission [1993] HCA 56

where Brennan J said the following in paragraph 14

"A person to whom information is disclosed in response to an exercise of statutory power is thus in a position to disseminate or to use it in ways which are alien to the purpose for which the power was conferred. But when a power to require discfosure of information is conferred for a particular purpose the extent of dissemination or use of the information disclosed must itself be limited by the purpose for which the power was conferred"

and the following was also said

"A statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed. The statute imposes on the person who obtains the information in exercise of the power a duty not to disclose the information obtained except for that purpose. If it were otherwise, the definition of the particular purpose would impose no limit on the use or disclosure of the information The person obtaining information in exercise of such a statutory power must therefore treat the information obtained as confidential whether or not the information is otherwise of a confidential nature"

Dawson J agreed with this approach, stating the following at paragraph 3 of his Judgment

[143] In the light of the aforegoing the City submits that the use by the Premier and the MEC, of information obtained by the police in searches conducted at the home of duToit was unlawful.

[144] I agree with this submission. The independence of the police in the investigation of crime is a vital aspect of the rule of law and the separation of powers. The vesting of powers of search and seizure in police officers, in terms of Section 21 of the Criminal Procedure Act, encroaching as such powers do upon the rights of individuals, have to be exercised in a fair and reasonable manner, with the sole object of achieving the purpose for which such powers were conferred, namely the investigation of crime by the police. The use of information obtained as a result of the exercise of such a power, for any other purpose would be unlawful.

[145] If the information obtained as a result of the searches at du Toit's home revealed the commission of anycrimes by du Toit, or anybody else, this should have been fufly investigated by the police and then handed to the Director of Public Prosecutions for the appropriate action.

Such information should not have been supplied to the executive branch of government, in the form of the Premier, for investigation by a commission of inquiry. Even if such information carried an implication of maladministration on the part of the City, in relation to any suspected criminal conduct, this did not justify the disclosure of what had to be regarded as confidential information in the hands of the police, which had to be used for one purpose, namely the investigation and prosecution of any crimes revealed by its contents, by the appropriate prosecuting authority.

Once any criminal prosecution had been finalised, If evidence of maladministration emerged during such process, that would be the appropriate stage for such evidence to be handed either to the City for disciplinary purposes, or to the MEC for possible action in terms of Section 106 of the Systems Act.

[146] We are advised in the City's heads of argument, which has not been disputed, that du Toit has not had any charges put to him and that the Organised Crime Unit has stated that the case against him cannot proceed untif the findings of the Erasmus Commission are finalised.
This is an intolerable situation, where a private citizen has to wait for a commission of inquiry, (which for reasons I will deal with below, has no business investigating the specified criminal offences), to achieve finality in respect of criminal charges which may or may not be preferred against him, depending upon the outcome of the investigation of the Erasmus Commission.

[147] The City submits that the inference is inescapable that the conduct of Commissioner Petros in supplying this information to the Premier, had as its object the furthering of the interests of the ANC in the Western Cape, in a partisan manner and that the Premier knew and intended that Petros should do so. Such conduct would be a vioiation of the provisions of Section 199 (7) of the Constitution.

[148] Although I find it strange indeed that a police officiat of the seniority of Commissioner Petros, would find it necessary to attend a raid on du Toit's home, and I have a grave suspicion that Commissioner Petros may have had such an objective in mind in furnishing the information to the Premier, I cannot on these papers, find as a fact that this was his objective.

in my view therefore, the furnishing by Commissioner Petros of this information to the Premier, was unlawful and this should have been appreciated by an official of the seniority of the Premier.

[150] Before deciding the issue of whether the Premier wilfully abstained from directing any enquiries to the City, it is appropriate in this context to deal with the dispute as to whether the investigation of criminal offences is an appropriate function for a commission of inquiry.

[151] The issue arises in the context of the terms of reference of the Second Erasmus Commission, where possible contraventions of the Corruption Act are to be investigated.
[152] The City argues that the Premier has no power to establish a commission to investigate suspected criminal acts. In accordance with the argument advanced by the City as to the independence of the police to investigate suspected criminal activities, It is submitted that the power to do so resides solely with the SAPS, together with the National Director of Public Prosecutions and the Directorate of Special Operations.

[153] The response of the Premier and the MEC is that

[154] In my view, the reasons advanced above in support of the principle that the police should function independently of the executive, when carrying out their role of investigating crime, apply with equal force in the present context. To vest a commission of inquiry with the primary task of investigating criminal conduct, is as pointed out above, inherently undesirable as it leads to a blurring of the functions of the executive and the police.
154.1	In the present case, it is quite clear, however that the power of the MEC, or the Premier, respectively to appoint investigators, or a commission of inquiry in terms of Section 106 of the Systems Act, to investigate issues of corruption and fraud in a municipality is strictly circumscribed, as set out above.
154.2	In my view, this also indicates a concern on the part of the Legislature to ensure that the circumstances under which a commission of inquiry should be appointed to investigate crimes of fraud and corruption, in relation to a municipality are carefully controlled. As pointed out above, the object of the Legislature was to strike a balance between the constitutional obligation imposed on the provinces to monitor local government in terms of Section 155 (6) (a) of the Constitution, and the circumstances under which the constitutional autonomy of local government could be impaired by a commission.

154.3 The object of the Legislature was also, in my view, to strike a balance between the autonomy of the police and the prosecuting authority respectively to investigate and prosecute crime on the one hand, and performance by the province of the constitutional obligation to monitor local government, on the other.

[155] A power on the part of the Premier to appoint a commission to investigate suspected criminal conduct in relation to a municipality, independently of the provisions of Section 106 of the Systems Act, would again result in the provisions of this Section becoming superfluous. In such an event the Premier would be entitled to appoint a commission to investigate suspected criminal conduct of whatever nature and not merely fraud and corruption, in relation to a municipality. This would not only intrude upon the autonomy of the police to perform such a function, but also the autonomy of local government.

[156] In my view, the effect of Section 106 of the Systems Act is to limit the power of the Premier to appoint a commission of inquiry with coercive powers, to investigate only the crimes of fraud and corruption, in relation to a municipality.

In light of the fact that the Premier did not act in terms of Section 106 of the Systems Act, the Premier was, in addition, not entitled to vest the Commission with the tasks set out in Items 9, 10 and 11 of the terms of reference of the Second Erasmus Commission.

[157] The Premier was accordingly not entitled to task the Commission with investigating the issues relating to the George Municipality set out in Item 11 of the Second Erasmus Commission.

[158] Returning now to the issue of whether the Premier wilfully abstained from directing any enquiries to the City, and did so because he had a suspicion that to do so would cast doubt upon the beliefs he held as to the grounds for a commission of inquiry, and harboured the ulterior motive of embarrassing political opponents by establishing the Second Erasmus Commission.

In the case of the information furnished to him by Commissioner Petros; I find it inconceivable that an official occupying the position of the Premier of a province, did not appreciate that the furnishing of such information to him was unlawful.

[162] What also has to be considered is what the Premier and the MEC, maintain was the true purpose of the Second Erasmus Commission.

162.2 As pointed out above; in my view, it is vital that there be a rational connection between the decision of the Premier to appoint a commission and some envisaged action to be taken as a consequence by the Premier, or the provincial government, in respect of the particular municipality. The object is to inform the Premier with regard to future lawful action, which he could rationally take.

162.6.1 Would these purposes, if true, be rational and lawful purposes?

162.8 Regard being had to the autonomy of municipalities, it is no function of the Premier to require, or even ask a municipality, to take disciplinary action against its officials and councillors.
162.9 As regards councillors, the scheme of the Systems Act and the Code, read within the framework of Section 41 of the Constitution, is that the MEC may investigate a councillor's conduct in terms of Item 14 (4) of the Code, but only in response to a request from the municipal council to remove the councillor. If the council fails to take action against the councillor, and if the MEC has reasonable grounds for believing this failure to constitute serious maladministration, the MEC may be entitled to have recourse to Sectiori 106.

Van Wyk v Uy$ NO 2002 (5) SA 92 (C) at 98 D-100C

The legislative scheme is entirely inconsistent with the use of a provincial commission to uncover facts relevant to possible disciplinary proceedings by a municipality against the councillor.

162.11	it is submitted that the use by the Premier of a coercive commission to establish possible misconduct on the part of councillors and staff, with a view to getting the municipality to take action against councillors and staff, is likely to violate the obligation of natural justice (which in the case of councillors, the council must observe in terms of Item 14 (7) of the Code) and fair labour procedures (which in relation to officials, the municipality is obliged by Section 67 (1) and (2) of the Systems Act to observe.)
162.12	it is submitted that a provincial commissionestablished by an outsider, being the Premier, simply has no place in themunicipal disciplinary process, and its establishment might, far from assisting the municipality, make it impossible for the municipality to take fair action against the councillor or official.
162.13	The second question posed is whether, if these purposes are rational, they can be believed. The alternative, it is submitted, is that the Premier had the improper purpose alleged by the City, or no rational purpose at all.

162.16	I agree with the submission that it is scarcely credible that the Premier could have believed that the expense of the Commission, and the political tension it would cause, was justified merely~toobtain a report which the Premier could then pass on to the City, to do with it as it saw fit,
162.17	What then was the Premier's purpose? If due regard is paid to the above factors, namely, evidence the Premier was aware of which contradicted concerns or beliefs he professed to hold on major issues, his reliance upon two sources of information which he must have appreciated was unlawful, as well as the political background against which the Commission was established, as well as the absence of any credible purpose advanced by the Premier for establishing the commission, I am driven to the conclusion that his purpose was the improper one of embarrassing political opponents and more specifically the DA.

162.18	Finding that the Premier possessed such an Improper purpose also leads to the reasonable inference that the Premier therefore wilfully refrained from directing enquiries to the City, because he had a suspicion that to do so, would cast doubt upon the beliefs or concerns he professed to hold, as to the grounds for a commission of inquiry. For what other possible reason would he refrain from doing so when, as I have found, the evidence he had before him cried out for further elucidation by the one source of that information, namely the City? The evidence he had before him, which contradicted his beliefs, did not reasonably call for elucidation by way of a commission of inquiry, but by way of reasonable enquiries directed to the City. As I have pointed out above, such enquiries would have resulted in any reasonable concerns on his part being addressed.
162.19	The Premier's contention that he acted for what he believed were good reasons is accordingly rejected as being clearly untenable.

[163] The Premier therefore did not possess an honest belief that good reasons existed for establishing the Second Erasmus Commission and possessed such an ulterior motive. As a result his decision was not rationally related to the purpose for which the power was conferred, was arbitrary and therefore unlawful. Consequently, the decision of the Premier to establish the Second Erasmus Commission falls to be set aside.
[164] Even if the issue of whether the Premier wilfully failed to make enquiries is ignored, and the enquiry is directed at establishing whether the evidence available to the Premier showed that objective reasonable grounds existed for a belief by the Premier that he had good reason for establishing a commission and if not, whether it is established that the Premier did not hold an honest belief that such grounds existed, the same conclusion is reached.

1036	In the face of this evidence there could be no reasonable grounds for the Premier continuing to harbour such concerns, or hold such beliefs.
1037	The absence of reasonable grounds, when considered together with the Premier's reliance upon two unlawful sources of information, is cogent evidence that he did not hold an honest belief, that reasonable grounds existed for establishing the Second Erasmus Commission.
1038	When the absence of an honest belief on the part of the Premier is considered, together with the evidence of the political
rivalry and antagonism between the ANC and the DA in the Western Cape, and the competing claims of these political parties respectively to regain and retain control of the City of Cape Town, as well as the absence of any credible purpose advanced by the Premier for establishing the Commission of Inquiry, his only motive on the evidence in establishing the Second Erasmus Commission, must have been to embarrass or discredit political opponents, particularly the DA.

165.4 On this basis again, the Premier's contention that he acted for what he believed were good reasons falls to be rejected as clearly untenable.

[166] On this alternative approach the Premier's decision again falls to be set aside as unlawful, as it was not rationally related to the purpose for which the power was conferred and was arbitrary.

Was the appointment of a serving judge to chair the Second Erasmus Commission, incompatible with the separation of powers and therefore uniawfuf and invaiid?

[167] Turning to the final substantive challenge raised by the City and the DA as to the lawfulness of the establishment of the Second Erasmus Commission. In the light of the conclusions I have reached in regard to the other substantive challenges raised it would appear unnecessary to do so. I will however, in the light of the views of the Constitutional Court expressed in the case of

S v Jordan and others (Sex Workers Education and Advocacy Task Force and others as Amici Curiae) 2002(6) SA 642 (CC) at para 21.

[169] The challenge raised is that the appointment of a serving judge to chair the Second Erasmus Commission was incompatible with the separation of powers ordained in the Constitution and therefore unlawful and invalid.
[170] The starting point for a consideration of this challenge must be the decision of the Constitutional Court in the case of

SA Association of Personal Injury Lawyers v Heath 2001(1) SA 883 (CC)

which dealt with the constitutional compatibility of the appointment of a High Court judge, to lead a special investigation unit, established in terms of the Special Investigating Units and Special Tribunals Act 74 of 1996.

[171] in this case the Constitutional Court stated :
1039	That there can be no doubt that the Constitution provides for a separation of powers (at 897B).
10310	The separation of the Judiciary from the other branches of government is an important aspect of the separation of powers required by the Constitution and is essential to the role of the courts under the Constitution (at 898G).
10311	Parliament and the provincial legislatures make the laws but do not implement them. The national and provincial executives prepare and initiate iaws to be placed before the legislatures, implement the laws thus made, but have no law-making power other than that vested in them by the legislatures. Although Parliament has a wide power to delegate legislative authority to the Executive, there are limits to that power (at page 898G).
10312	Under our Constitution it is the duty of the courts to ensure that the limits to the exercise of public power are not transgressed. Crucial to the discharge of this duty is that the courts be and be seen to be independent (at page 899A).
10313	The separation required by the Constitution between the Legislative and Executive, on the one hand, and the courts, on the other, must be upheld, otherwise the role of the courts as an independent arbiter of issues involving the division of powers between the various spheres of government, and the legality of legislative and executive action measured against the Bill of Rights and other provisions of the Constitution will be undermined {at page 899 B).
10314	The principle of separation of powers is not necessarily compromised whenever a particular judge is required to perform nonjudicial functions. The performance of functions incompatible with judicial office would however not be permissible (at page 899 E).
10315	Criteria which are relevant to considering whether or not under our Constitution, it is permissible to assign a non- judicial function to a judge, are whether the performance of the function :

10316	Is subject to executive control or direction
10317	Requires the judge to exercise a discretion and make decisions on the grounds of policy rather than law
10318	Creates a risk of judicial entanglement in matters of political controversy
10319	Involves the judge in the process of Jayv enforcement
10320	Will occupy the judge to such an extent that he or she, is no longer able to perform, his or her usual judicial functions (at page 899 H-900B).

10321	These criteria should be given a weight appropriate to the nature of the function that the judge is required to perform and the need for that function to be performed by a person of undoubted independence and integrity (at page 900 D).
10322	It is undesirable, particularly at this stage of the development of our jurisprudence concerning the separation of powers to lay down rigid tests for determining whether or not the performance of a particular function by a judge is, or is not, incompatible with the judicial office (at page 900 E).
10323	The question in each case must turn upon considerations such as those set out above and possibly others, which come to the fore because of the nature of the particular function under consideration (at page 900 F).
10324	Ultimately the question is one calling for a judgment to be made as to whether or not the functions that a judge is expected to perform are incompatible with the judicial office and, if they are, whether there are countervailing factors that suggest that the performance of such functions by a judge, will not be harmful to the institution of the Judiciary, or materially breach the line that has to be kept between the Judiciary and the other branches of government in order to maintain the independence of the Judiciary (at page 900 F -G).
10325	In dealing with the question of judges presiding over commissions of inquiry much may depend on the subject matter of the commission. In appropriate circumstances judicial officers can no doubt preside over commissions of inquiry without infringing the separation of powers. The performance of such functions ordinarily calls for the qualities and skills required for the performance of judicial functions - independence, the weighing up of information, the forming of an opinion based on information and the giving of a decision on the basis of a consideration of relevant information (at page 901 F - 902 A).
[172] What should be noted at the outset is that in determining whether or not a particular judicial function by a judge, is incompatible with the judicial office depends upon the outcome of two enquiries namely :

"A separate, but related, basis for independence is the need to uphold pubEic confidence in the administration of justice. Confidence in our system of justice requires a healthy perception of judicial independence to be maintained amongst the citizenry. Without the perception of independence, the judiciary is unable to 'claim any legitimacy or command the respect and acceptance that are essential to it."

Closer to home and in similar vein, in the case of

Van Rooyen v de Kok NO and others

Bosielo J said
"In my view, it is imperative that in every modern democratic society, particularly ours which is still relatively young and nascent, that the Judiciary as a whole must not only claim, or purport to be, but must manifestly be seen to be truly independent. I venture to say that the attributes of judicial independence and impartiality lie at the very heart of the due process of .the law."

[176] Having found that the Premier did not possess an honest belief that good reasons existed for establishing the Second Erasmus Commission, and acted with the ulterior motive of embarrassing political opponents, these words assume even greater significance on the facts of this case. In this context I find the inference irresistible that one of the reasons why the Premier appointed a judge to chair the commission, was in order to cloak his ulterior motive with the neutral colours of the judicial office.

177.1 A finding that the Premier appointed a judge to chair the commission with such an ulterior motive, in my view, would be sufficient grounds to set aside the appointment as not being in accordance with the constitutional principle of legality. The Premier's decision to appoint a judge to chair the commission again woufd not be rationally related to the purpose for which the power was conferred upon the Premier, in terms of section 1(1)(e) of the Western Cape Provincial Commissions Act 10 of 1998. The decision would be arbitrary and unlawful and fali to be set aside as such. For the sake of completeness I will nevertheless deal with the challenge raised on the grounds that the appointment of a judge was incompatible with the doctrine of separation of powers.
177.2 I wish to make it absolutely clear that I do not suggest that Erasmus J was in any way a party to such conduct, but what this starkly illustrates is the care which must be exercised by any judge, in deciding whether or not to accept an appointment to chair a commission, at the behest of a representative of the executive.

"if therefore, reasonable people, not trained to discover 'distinctions without differences' might reasonably apprehend that the functions undertaken by a judge as persona designata impaired his or her ability to carry out judicial functions or conflicted with the judge's independence or impartiality, those nonjudicial functions cannot constitutionally be invested in a person who is a member of a federal court."

"In the circumstances prevailing in the RSA this observer had to be sensitive to the complex social realities of the RSA, in touch with the evolving pattern of constitutional development and guided by the Constitution, its values and the distinction it draws between different courts."

Van Rooyen and others v S and others (General Council of the
Bar intervening)
2002(8) BCLR 810 (CC) at 812 A - B

[183] Depending upon the subject matter of the particular commission and its terms of reference it may be no easy task for a judge to satisfy him or her self, after examining both aspects of the enquiry, that his or her participation in such a commission, wouid not be incompatible with the judicial office and not threaten public confidence in his or her ability to carry out judicial functions.

[185] Regardless of the outcome of this dispute, the unsavoury fact remains that a dispute as to the suitability of a judge to chair a commission rages between senior members of different levels of the executive branch of government, being on the one hand the Mayor of the City of Cape Town and on the other the Premier of the Western Cape. The situation is aggravated by the fact that they are political opponents. My abiding concern is that the ultimate loser in this dispute, will be the administration of justice, in the form of a loss of confidence on the part of the general public, in the independence of the judiciary

[188] The fact that presiding over a commission of inquiry calls for qualities and skills possessed by judges and identified by the Constitutional Court as independence, the weighing up of information, the forming of an opinion based on the information and the giving of a decision on the basis of a consideration of relevant information, does not with great respect, render the performance of such a role the sole preserve of active judges. Active judges do not possess a monopoly over these attributes, which in my experience, are possessed in equal measure by many senior members of the legal profession, both at the Bar and the Side Bar.

[189] The words of Edwin Cameron, uttered in the pre-constitutional era and before his elevation to the bench are still apposite today :
"The use of judges to sit on commissions of enquiry has long been a controversial aspect of South African political fife. It is often suspected that commissioners are selected to make findings and recommendations which would suit the government. When judges are used in this process the discrediting effect on the judicial system is severe."

Edwin Cameron, Nude Monarchy : The Case of South African Judges
(1987) 3 SAJHR338at342

[190] I find it of significance that in Australia, according to Professor Gerard Carney, writing in The Constitutional Systems of the Australian States and Territories (Cambridge University Press 2006) at page 367

[191] Mr Rogers submits that the development of a more appropriate sensitivity to the strict maintenance of the constitutional separation of judicial and executive function in Australia, is also testified to in the following remarks of De Jersey CJ, of the Queensland Supreme Court, in an address to the Samuel Griffith Society, in which the Chief Justice was addressing the consequences for the judiciary of the separation of powers.

[192] I, with respect, agree with the views of Chief Justice de Jersey. As will become apparent later in this judgment, the facts of this case starkly highlight the rationale advanced by the Chief Justice why Judges should not be Involved in Commissions of Inquiry. Simply put, the involvement of Erasmus J in the Commission has unnecessarily involved the judge in the political controversy surrounding the commission, which may damage the confidence of the public in the judiciary's core function of determining matters in court.

[193] Mr Heunis however cautions that reference to foreign authorities is an exercise in legal transplantation, which is inevitably fraught with danger. This is so he submits as the Constitutional Count pointed out in

that our courts would over time develop a distinctly South African model of separation of powers.

[194] In my view however, the core function of the judiciary, in any jurisdiction, is as set out above. A loss of public confidence in that function carries the same serious consequences. In addition, the approach to be adopted in deciding whether a particular task is incompatible with the judicial function is the same. The views of a reasonable member of the public on this issue, are also given consideration. In addition, the rationale advanced for judges not to chair commissions of inquiry, is equally valid.

[195] Before turning to the substantive challenges raised as to the appointment of a judge to chair the commission, I must initially deal with the issue of whether any challenge is raised by the City or the DA as to the personal suitability of Erasmus J to chair the commission.

[196] Mr Heunis submits that a challenge is raised on this basis for the following reasons.

196.2	The Mayor in the City's replying affidavit states that the expanded terms of reference of the Second Erasmus Commission

"points strongly in support of my description of the exercise as nothing more than the provision of an ostensibly respectable vehicle for a political witch-hunt."

and also that Erasmus J is

[197] Mr Rogers' response to this is to deny that the Mayor in her replying affidavit launched an attack on Erasmus J personally. He submits that it has never been the City's case in these proceedings, that Erasmus J is precluded from being the chairperson because he was previously a member of the ANC. The point was a general one concerning the propriety of appointing judges at all. The reference to Erasmus J's prior membership of the ANC was raised specifically not as a criticism of the judge, but as a factor relevant to the Premier's state of mind ie the choice he made because he thought he would achieve a favourable outcome.

[198] At the hearing of the matter I asked Mr Rogers whether there was any challenge raised as to the suitability of Erasmus J to chair the commission and he replied there was not. There is consequently no challenge before me on this basis which needs to be addressed.

[201] The response of Mr Heunis is that the terms of reference are neutral, even though the political backdrop is not and this is no different to any case involving political parties before a court of law.

"It is not compatible with the holding of federal judicial office in Australia for such an office holder to become involved as 'part of the criminal investigative process' closely engaged in work that may be characterized as an adjunct to the investigating and prosecutory functions."

[206] The Second Erasmus Commission is tasked with advising the Premier on whether contraventions of the Prevention and Combating of Corrupt Activities Act 12 of 2004 have occurred.

[207] The Premier states in his answering affidavit the following
"I remain convinced that the best way to do this is through a commission with power to summon witnesses and require documents to be produced."

[209] In this regard the words of Le Bel J in the Canadian Supreme Court case of

In re Application under S 83.28 of the Criminal Code [2004] 2
SCR 248 at para 185

are apposite.

"In my view, a reasonable, well-informed person could conclude that the purpose of having a judge at such an investigation is to help the executive branch compel the witness to answer questions The judiciary's symbolic and legal weight will assist the police in their investigations. The judiciary wiil then no longer be playing the role of an independent arbiter."

[212] I also agree with the submission of Mr Rosenberg that the argument goes beyond imbuing a judge with executive functions and transports the judge into the realm of the prosecuting authority. Apart from effectively furnishing a judge with prosecutorial powers, which is a gross violation of the principle of separation of powers, it further enables a member of the executive to usurp investigative and prosecutorial powers through his tool, the judge-led commission.

[213] I am therefore satisfied that the appointment of a serving judge to chair the Second Erasmus Commission was incompatible with the separation of powers and therefore unlawful and invalid.

[214] Two further aspects which arose in argument must be dealt with. The first concerns the procedure which was adopted by the Premier in appointing Erasmus J. It is common cause that the Premier invited Erasmus J to chair the commission: In the Premier's answering affidavit he states that before establishing the Erasmus Commission he obtained the permission of the Judge President of the Cape High Court, as well as the Minister of Justice and Constitutional Development, that Erasmus J would be released from his current judicial duties to chair the commission.

[215] In my view, such a procedure is inherently undesirable because it is the representative of the executive who chooses the judge concerned. Such a procedure can lead to suspicion that the judge was chosen because the executive believed he or she would make findings and  recommendations,  which  would  suit the government. The correct procedure would be for the representative of the executive to approach the Judge President of the relevant division of the High Court and request that he provide a judge from his division to chair the commission. The Judge President would then select a judge, due regard being had to the nature of the commission and the particular attributes and experience of the members of his\her bench. The Judge President could in consultation with the other members of his bench also determine whether in all the circumstances, it was appropriate for a judge to chair the commission concerned.

[216] A further aspect is that we were informed that the First Erasmus Commission conducted its sittings in a courtroom of the Cape High Court. I again regard such a process as inherently undesirable, as it only serves to further blur the distinction between a judge performing his judicial functions and his functions as a commissioner, in the eyes of a reasonable member of the public.

[217] As regards the issue of costs we were informed by Counsel that the City and the DA had brought two interdict applications when the Second Erasmus Commission was threatening to proceed. The costs of these applications were reserved. Counsel were agreed that the costs of these applications should be costs in the cause. There was no debate that the number of Counsel employed by each of the parties was inappropriate and no submissions were made to us in that regard. Indeed the matter is complex, vast and of importance to all concerned. In my view there can be no quarrel with the number of counsel engaged by each of the parties.

I propose that the foliowing order be made :;

2.	The conditional counter application of the First and Second Respondents is dismissed.
3.	The First and Second Respondents are ordered, jointly and severally, to pay :-

3.1	The costs of the Applicant and the Intervening Party, such costs to include in the case of the Applicant, the costs of three counsel and in the case of the intervening party, the costs of two counsel.
3.2	The costs of the Applicant and the Intervening Party in opposing the conditional counter application, brought by the First and Second Respondents.
3.3	The costs of the Applicant and the Intervening Party in the two previous interdict applications.
SWAIN, J
I agree and it is ordered

NICHOLSON J

Counsel for the Applicant: Owen Rogers SC
Ashley Binns-Ward SC 
Ncumisa Mayosi

Counsel for the intervening Party : S P Rosenberg SC
Anton Katz

Norman Arendse SC Nazreem Bawa David Bergstrdm

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