Judges benched in arms deal and Cele inquiry

The presidency announced on Friday that retired Constitutional Court Judge Yvonne Mokgoro would no longer be heading the commission into whether police national commissioner General Bheki Cele is fit for office.

Justice Jake Moloi will be replacing her, while advocates Terry Motau and Anthea Platt would join the inquiry as additional members.

The presidency also announced that Judge Willem van der Merwe asked to be released from the arms probe for personal reasons.

“The president thanks both judges for initially availing themselves for these tasks and looks forward to working with them on other assignments,” it said.

On Monday, President Jacob Zuma announced the suspension of Cele on full pay and benefits while a commission investigated his behaviour following the police lease debacle.

Earlier this year, Public Protector Thuli Madonselareported that Cele’s involvement in the controversial police leases worth half a billion rand amounted to “maladministration and unlawful” practice.

The commission was established to investigate Cele’s behaviour in terms of the South African Police Service Act 68 of 1995.

But constitutional law expert Pierre de Vos wrote on his blog that there were legal problems with the appointment of Mokgoro.

“The problem is … that Justice Mokgoro is, as far as I am aware, not a judge of the Supreme Court as required by section 8 of the South African Police Service Act. She is a retired judge of the Constitutional Court. The Act does not provide for a retired judge to head the panel in question and it is therefore not clear why our president had purported to appoint her to head this panel.”

He told the Mail & Guardian the decision that Mokgoro will no longer appear on the commission was “wise”.

“Unless one does a huge amount of legal interpretative gymnastics, one would not be able to conclude that Judge Mokgoro is legally entitled to act as the chairperson of the inquiry into whether Bheki Cele is guilty of misconduct or whether he is fit for office or has the capacity to execute his or her official duties.”

Earlier, the justice ministry issued a statement saying that it came to their attention that Mokgoro served in another police structure and it wanted to maintain integrity of structure.

De Vos speculated that Mokgoro may have realised there was a problem.

“I have no why idea why this happened. It seems to me it is wise move. One doesn’t want to have the enquiry hamstrung by legal challenges on the way. Someone could have challenged the legality of a retired constitutional judge heading the panel.”

He also criticised the president’s legal advisors for not telling him Mokgoro should not have been not be appointed in that position.

When Zuma extended Sandile Ngcobe’s term as chief justice in July, his lawyers were also criticised for not warning him that his decision would be found unconstitutional.

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