The City of Cape Town had no legal right to even be in court to challenge the Erasmus Commission, the Cape High Court heard on Friday.

The court is hearing an application by the city and the Democratic Alliance to have Western Cape premier Ebrahim Rasool's appointment of the commission declared invalid.

Rasool's senior counsel Jan Heunis told the two judges hearing the matter that it would be hard to think of a better example of an intergovernmental dispute than this case.

The Intergovernmental Relations Framework Act laid down that an organ of state such as the city government had to formally declare a dispute, in writing.

Only after making every reasonable effort to resolve the dispute could it approach a court.

It was fact that the city had neither formally declared the dispute, nor tried to settle it, and for that reason it could not have instituted the current proceedings.

Heunis said the fact that the DA had joined the proceedings at a later stage could be accounted for only by the city's realisation that it was doomed to failure.

The DA participation kept the court challenge alive.

"The city should not be here as a matter of law," he said.

Heunis also said a public statement by city mayor and DA leader Helen Zille that commission chairperson judge Nathan Erasmus was allowing himself to be "used" breached the sub judice rule and amounted to contempt of court.

Given the fact that the city made no formal attempt to seek Erasmus' recusal, it was also intellectually dishonest.

The commission was set up to probe a city investigation into renegade councillor Badih Chaaban, who was alleged to be bribing fellow-councillors in the run-up to last year's floor-crossing window.

Sapa