I do not really want to pick a fight with Helen Zille because I do not have the time. But as she has now also attacked me because I criticised her actions around the appointment of the Erasmus Commission, I guess I’ll have to jump in.

When President Thabo Mbeki told religious leaders that they should “trust him” on Police Commissioner Jackie Selebi, he was rightly vilified in the media and by the Democratic Alliance (DA). Now it seems Zille, leader of the DA, is telling us we should “trust her” on the Spygate matter and should not complain when she impugns the integrity of a judge.

In response to my previous post criticising her response to the Erasmus Commission of Enquiry she argues:

  • that her name has already been cleared by a Commission appointed by her with terms of reference decided on by her and thus has nothing to hide;
  • people will appear before the Commission and will make scurrilous and untrue allegations that will damage her reputation and that of the DA;

    • and

  • that Judge Erasmus should never have accepted to chair the Commission because it is a political hatched job and she is therefore perfectly entitled to attack him personally.

    • First, it is true that a Commission headed by a senior advocate cleared Zille and the DA of wrongdoing. But the terms of reference of this Commission were decided on by Helen Zille herself, and she was thus cleared of what she knew beforehand she would be cleared. The terms of reference of the Erasmus Commission are much wider, and thus have the potential to uncover evidence of wrongdoing not covered by the Zille Commission.

    It might well be that even these wide terms of reference will not allow Judge Erasmus to make any adverse finding against the leader of the opposition or the party she heads. In that case she would have been truly exonerated by judge, and her name would really be cleared. But by pulling out all the stops to try and prevent this broader investigation, reasonable people without an axe to grind will inevitably become suspicious and will begin to wonder why we should trust Zille. When politicians ask us to trust them, I for one starts getting suspicious – but maybe that is just me.

    Second, in a Constitutional democracy that guarantees free speech, a politician cannot choose which allegations she wants to have aired and which ones not. As the Constitutional Court has said, the guarantee of freedom of expression means that we must allow almost all speech – even speech that might be untrue or scurrilous – because in the free marketplace of ideas the real truth will emerge eventually.

    Now Zille seems to suggest that she does not believe in freedom of expression because she does not trust the truth to come out in the end. She therefore argues we should stop a commission of inquiry because allegations might be made there that are untrue and damaging to her and the party. This is a deeply illiberal stance and flies in the face of the values espoused by the DA and Zille, and creates the impression of serious hypocrisy.

    Besides, to say that Mr Rasool might have a political axe to grind and might want to gain a political advantage out of this, and that the whole exercise is therefore illegitimate is also laughable – coming as it does from the DA. When the DA screams blue murder about allegations of corruption in the arms deal it does so knowing that it could gain a political advantage out of the matter. That does not make it illegitimate to ask for a commission of inquiry on the arms deal.

    Third, it is true that in South African Association of Personal Injury Lawyers v Heath the Constitutional Court said that given the principle of the separation of powers in our Constitution, a judge should not perform a task that is “incompatible with judicial office,” and that one of the factors that might be relevant in deciding whether the task is incompatible with judicial office would be whether it would “create the risk of judicial entanglement in matters of political controversy”.

    But the Court also said that judges can preside over commissions on inquiry because the performance of such a function “ordinarily calls for the qualities and skills required for the performance of judicial functions – independence, weighing-up of information, and giving a decision on the basis of a consideration of relevant information”.

    Here we have a commission set up in terms of Provincial Legislation to establish any wrongdoing by the City, which seems very close to the judicial function and therefore does not suggest an infringement of the principle of the separation of powers.

    However, if Zille believed that the Erasmus Commission infringed on the principle of separation of powers as set out in the Heath judgment, she would be free to challenge its legality in the Constitutional Court. But she has not done so – perhaps because she has been advised by senior lawyers that such a case has little chance of success? Instead she has chosen to launch a personal attack on a sitting judge not on the basis of any of his actions or decisions (which would have been legitimate) but based on his previous political affiliations (which is undermines one of the main pillars of our democracy).

    This personal attack is deeply irresponsible and flies in the face of existing precedent. The Constitutional Court has already found in the SARFU judgment that one should not assume that a judge would be biased merely because he or she belonged to a political party before his appointment. We all have a duty to uphold the independence of the judiciary and to respect the members of the judiciary, and we should not attack their integrity based on nothing more than their history. A judge does not stop being a judge merely because he sits as the head of a commission of inquiry, and to suggest that he does is to engage in mental gymnastics of the highest order.

    And once again this was done in a way that reeks of hypocrisy. When Judge Sisi Khampepe was appointed by President Thabo Mbeki to investigate issues around the Scorpions – a politically controversial subject if ever there was one – the DA did not complain or attack the judge for taking on the assignment, and it even launched an action to gain access to her final report.

    But now that another judge is appointed to head another commission dealing with politically less controversial matters such as lowly corruption in little Slaapstad, the judge is attacked personally, and in Orwellian manner accused of undermining the independence of the judiciary. This is rich, because, let’s face it, it is the statement by Zille – and not the actions of a judge acting in terms of legislation – that is undermining the independence of the judiciary.

    Hypocrisy of the highest order rules again.

    Author

    • Professor Pierre de Vos teaches constitutional law at the University of Western Cape. His writing has been published widely in both scholarly journals and in the popular press on a wide range of topics, including gay rights, the right to equality, social and economic rights, and affirmative action. Since October 2006 he also publishes a blog, Constitutionally Speaking.

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    Pierre de Vos

    Professor Pierre de Vos teaches constitutional law at the University of Western Cape. His writing has been published widely in both scholarly journals and in the popular press on a wide range of topics,...

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