The General Council of the Bar of South Africa (GCB) is expecting to hear from the Justice Ministry soon on its complaint over the appointment of Mokotedi Mpshe as an acting judge in the North West High Court.
“The minister [Jeff Radebe] said they would be responding to us,” said GCB chairperson Patric Mtshaulana on Friday.
The bar, lobby group Freedom Under Law and the South African Institute of Race Relations (SAIRR) are concerned about the appointment on the grounds that a sitting civil servant should not also be an acting judge.
Mpshe is deputy national director of public prosecutions, although he has been “temporarily detached” from that post without pay, for the six-month stint.
The Justice Ministry said that Radebe was entitled to make the appointment in terms of the Constitution.
However, the Judicial Service Commission (JSC) said, without commenting specifically on the Mpshe matter, that such an appointment would not be ideal.
Spokesperson advocate Marumo Moerane said that it was correct that Radebe was allowed to appoint acting judges and did not have to consult the JSC, as is the case with permanent judges.
However, he continued: “It could cause a problem if, let’s say, a national director of public prosecutions were to be appointed an acting judge, and he would preside in a criminal matter.
“Institutionally, it is his function to prosecute, so if he were to be appointed an acting judge, institutionally he would not be independent.
“There would be a potential conflict of interest, because his department would have taken a decision to prosecute, and he would be presiding in a decision in which his department had taken the decision to prosecute.
“So, there would be a perception of bias.”
The defence would then be entitled to apply for his recusal.
Undesirable
This did not mean that prosecutors with career aspirations could not be judges, but they would have to resign from the National Prosecuting Authority first.
Moerane said the principle had already been debated in a different case, when Enver Surty was justice minister.
“The position of the JSC — on general policy — is that it is undesirable for a permanent employee of the state to be appointed an acting judge, if he is to go back to his position.”
The SAIRR said that at an individual level, “judges must bring an objective perspective to bear on the disputes before them, not allowing political affiliation, deference to the executive, or hope of financial or other reward to influence their rulings”.
“But Mpshe has already failed this test by demonstrating his political pliability and willingness to bend the rules for the benefit of President Jacob Zuma.”
Mpshe was acting NDPP when fraud and corruption charges were dropped against Zuma, shortly before he became president, on the grounds of interference in the investigation.
The SAIRR said the Constitutional Court had ruled previously on the doctrine of the separation of powers between the executive and the judiciary and that doctrine barred a state official from simultaneously serving as a judge.
It called for his appointment to be withdrawn or set aside. — Sapa