The General Council of the Bar of SA has confirmed that the justice ministry will soon be responding to the complaint of appointing Mokotedi Mpshe, deputy director of the National Prosecuting Authority, as an acting judge in the North West High Court.
The problem with that, is that there is nothing that Justice Minister Jeff Radebe or his staff can say that will overcome the internationally recognised principle that a temporary judge who is still a civil servant, and stands to return to his post, “lacks sufficient institutional independence to serve as a judge”.
There are good reasons why this is the case.
Firstly, as stated by Freedom Under Law it “fundamentally disregards the division of powers entrenched in South Africa’s Constitution, and is in conflict with the leading judgment on the point (Lesotho case) in the SADC (Southern African Development Community) region”.
Secondly, the “public perception must be that his future appointment or promotion may be influenced by his rulings while sitting as a judge. As such no acting judge should be beholden to a permanent employer, “least of all another arm of state, whose actions daily fall to be adjudicated before judges”.
Thirdly, in this case, Mpshe was the acting head of the NDPP, who controversially withdrew the charges against President Jacob Zuma, which smacks of being some kind of reward for making a decision that was highly questionable in legal terms. As things stand, the Democratic Alliance are making application for his decision to be reviewed.
Finally, as put forward by Professor Pierre de Vos: “Mpshe, I am told, is still employed at the NPA. If this is correct, the appointment would surely not only be scandalous but also unconstitutional. Although members of the NPA fall administratively under the Ministry of Justice, they have a constitutional duty to act independently. Nevertheless, NPA members (like Mpshe) are state employees and are subject to the authority of the NDPP. A member of the NPA cannot serve two masters by being both subject to the authority of Simelane and subject only to the Constitution and the law which he must apply without fear, favour or prejudice. Although Mpshe might act impartially he would not be able to be independent because he is still a civil servant!”
In addition to FUL, the GBCSA and the SA Institute of Race Relations, many other groups within and without the legal fraternity are concerned about the continuing erosion of the separation of powers which this appointment represents.
At present, the DA has filed its responding affidavit in its legal bid against Zuma’s appointment of Menzi Simelane as the National Director of Public Prosecutions. The head of the NPA was found by the Ginwala Inquiry to have interfered in the independence of the very organisation that he now heads. Now Mpshe, the man who dropped the charges against Zuma, is being elevated to the status of a judge while still employed by the NPA.
This crossover between organs of state and the judiciary is extremely damaging to the credibility of the weapons being used in the country’s fight against crime — a battle that up to now has not been very successful.
If to this is added the decision to disband the Scorpions and the refusal to act against Judge John Hlophe, then the government are seen to be declaring war on crime only to undermine the very efforts being used to wage it.
Unfortunately, Radebe will be coming forward to tell us that in terms of the Constitution, he can make this appointment.
If that be the case, it will be a simplistic reading of the document, in a vacuum and without regard for all the elements surrounding the decision which confirm it as not only being inappropriate but a danger to the wellbeing of the criminal justice system and the judiciary.
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