Justice Minister Jeff Radebe on Thursday vigorously defended his appointment of former acting prosecutions head Mokotedi Mpshe as an acting judge in the North West High Court, and said his decision stood.
Briefing the media at Parliament, Radebe accused the Law Society of South Africa (LSSA) and the General Council of the Bar (GCB) of waging a “politically motivated” campaign against the appointment.
Acting appointments to the Bench were not as a matter of law preceded by any nomination process, he said.
Mpshe had asked for an acting judge appointment and now filled a vacancy in the North West High Court.
Radebe said that as the Cabinet member responsible for the administration of justice, it was his prerogative to appoint acting judges after consulting the senior judge of the court on which the acting judge would serve.
“It is beyond dispute that the appointment of judges is a judicial function. The president appoints permanent judges and the minister appoints acting judges and magistrates,” Radebe said.
Fairness and transparency
The role of the Judicial Service Commission (JSC) in relation to permanent appointments sought to ensure that the appointment process was fair and transparent and eliminated the arbitrary use of discretion by the executive.
The need for the minister to consult with the judge president when making an acting appointment sought to ensure the judge president’s views were considered in making such an appointment.
It was wrong for the GCB to suggest the minister should consult with them (the GCB) and the JSC before deciding on an acting appointment.
“No such provision exists in our law. If anything, I exercised a constitutionally conferred authority when I made this appointment,” Radebe said.
There was no reason to believe Mpshe would have the propensity to take the side of the state because he had worked for the National Prosecuting Authority (NPA), except by using the unreliable devices of perception of future actions.
“Since he has tried no case, I have no reason to impute from these misplaced perceptions that he will fall short of the impartiality required of him.”
No longer in the employ of the NPA
Mpshe was also no longer in the employ of the NPA.
“There is nothing exceptional and therefore unbecoming about his appointment. This is yet another politically motivated complaint disguised as pursuit of the principle of judicial independence, the rule of law and related principles,” Radebe said.
There was adequate provision in the Constitution and case law to shield judicial independence and insulate judicial authority from interference. The Supreme Court of Appeal (SCA) had also clearly expressed the view that members of the NPA were obliged to be impartial and independent. The actions of a judge, acting or otherwise, demanded the same traits.
Radebe said his decision to appoint Mpshe remained as valid today as it was when he took it.
The fact that Mpshe had asked the president to allow him to vacate his office with immediate effect, as deputy national director of public prosecutions, based on personal considerations, could not have affected the position regarding his appointment as an acting judge.
“I would still have held the same view and position regardless of whether or not he left the NPA,” he said.
Radebe emphatically rejected suggestions that Mpshe was being rewarded for dropping the case against President Jacob Zuma, saying he was an honourable person who based his decisions on the law.
Asked on what he based his statement that it was a politically motivated complaint, Radebe said instead of dealing directly with him on the matter, the LSSA and GCB were using the media.
Their going on a “media campaign” indicated it was politically motivated, he said. — Sapa