The General Council of the Bar (GCB) has sent a memorandum to Justice Minister Jeff Radebe, rebuking him for appointing former acting director of public prosecutions Mokotedi Mpshe as an acting judge while he was still a public official.
The seven-page memo, sent to Radebe on May 3, points out that appointing acting judges from the ranks of serving public officials violates the constitutional principle of judicial independence.
Patric Mtshaulana, GCB chairperson, said the council was still awaiting Radebe’s response. “The decision to go first to the minister, rather than to court, was one [made by the GCB’s] constituent Bars. They expect the executive to fully exhaust the discussion route with the minister,” Mtshaulana said.
The GCB said earlier this year that it was considering a legal challenge to Mpshe’s appointment as an acting judge.
It had accepted Radebe’s assurance that Mpshe had subsequently resigned from the National Prosecuting Authority, said Mtshaulana.
A discussion had been held with Radebe, who invited the GCB to submit a memo outlining its concerns. Mtshaulana said Radebe had promised to respond to the memo.
“He further informally promised he would in the meantime not take decisions in conflict with the spirit that existed at the meeting,” said Mtshaulana.
In the memo the GCB said that it had received no communication from the minister indicating his rejection of its stance on the appointment of acting judges from the ranks of the public service.
“The appointment in February 2010 of Mr Mokotedi Mpshe, at the time in the employ of the National Prosecuting Authority, as an acting judge in the North West High Court raised some serious concerns,” the memo stated.
It added that Radebe had subsequently publicly stated his conviction that the appointment of a public servant as an acting judge does not threaten the principle of judicial independence and that “he considers himself fully entitled under the Constitution to appoint further acting judges from among the ranks of serving public employees”.
However, the GCB’s memo says that there is a “reasonable perception” among the public that a state employee, who stands to return to a public service career, will be less inclined to make particular findings against the state than a private practitioner.
The GCB is at pains to emphasise that its concerns have nothing to do with Mpshe and that it is solely concerned with questions of principle.
It “respectfully” asks Radebe to support what is understood to have been the consensus of the heads of court at an October 2008 meeting — that the appointment of acting judges from the ranks of serving public officials breaches the principle of judicial independence.
Radebe told a press conference in Parliament in February that he was approached by Mpshe, who was seeking an acting judicial appointment.
As acting national director of public prosecutions, Mpshe overruled his prosecution team by withdrawing fraud charges against President Jacob Zuma.
The DA’s challenge to the NPA’s decision to drop charges against Zuma begins in the North Gauteng High Court next Monday.