The legacy of Lategan
On Monday 29th October 1979 the main editorial of the Cape Times was devoted to a spirited defence of the independence and impartiality of the judiciary. The event which so stirred her editor was the appointment of the then Attorney General of the Cape, Braam Lategan, as a judge in the Cape Provincial Division of the Supreme Court of South Africa as the court in Cape Town was then known.In those dark days there was no supreme Constitution and no Judicial Service Commission to recommend the appointment of judges. The task fell to the Minister of Justice alone and nakedly political appointments to the Bench occurred with monotonous regularity. Lategan’s appointment was a reward for his role in the Erasmus Commission of Inquiry which, via its final report, effectively ended the career of BJ Vorster and brought PW Botha to the fore as his successor as State President.
South Africans now enjoy the benefits of constitutional democracy under the rule of law. The power of the executive is mediated by checks and balances built into the Constitution; the doctrine of the separation of powers is accepted as part of our law and both the independence and impartiality of the courts are enshrined in the Constitution. It goes further by enjoining organs of state to assist and protect the courts through measures that ensure "the independence, impartiality, dignity, accessibility and effectiveness of the courts". Our democratic order is not only representative and participatory, it is constitutional, in the sense that any conduct inconsistent with the Constitution is invalid and all obligations imposed by it must be fulfilled.
One of the obligations of the Minister of Justice, currently Jeff Radebe, is that he must appoint acting judges of the High Court "after consulting the senior judge of the court on which the acting judge will serve". He has publicly conceded that only appropriately qualified, fit and proper persons may be considered for appointment as judicial officers. He has also appointed the former Deputy National Director of Public Prosecutions, Mokotedi Mpshe, as an acting judge in the North West High Court.
As was pointed out in the editorial all those years ago, it is inappropriate that a public servant, especially one who has devoted his professional life to the task of prosecuting suspected criminals, should become a judge. This is because the independence and impartiality of such a person is questionable. The fact that prosecutors are obliged to prosecute without fear, favour or prejudice does not mean that they are fit to judge in the same way. The commingling of the two disparate functions is simply not constitutionally possible. The public servant is answerable to the structures of the public administration while all judges are accountable only to the law and the Constitution.
Any public servant who is also an acting judge is in effect wearing two hats at the same time. The one, firmly based in the public administration which is a part of the executive branch of government, and the other in the High Court, which is a part of the judiciary. This makes complete nonsense of the separation of powers and undermines the all important legitimacy of the Bench by populating it with personnel of questionable independence and impartiality. No person on trial in a criminal case wants to find a long-standing member of the prosecution service sitting in judgment of his or her case.
There is precedent for frowning upon the appointment of public servants as acting judges, to be found in a 1985 decision, a salutary case in which the Lesotho Appeal Court cancelled the appointment of a member of that country’s equivalent of the NPA, the Attorney General’s Office, as an acting judge. The Court affirmed the principle that justice should not only be done but should be seen to be done. "Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice", the court said and continued:
"Peete’s official duty as a Judge may compel him to give decisions most unpopular to his one time and future superiors, or even to castigate them or their subordinates for the manner in which cases have been conducted. And then he is to return to work under his superiors!"
While Mpshe's sudden resignation from the ranks of the NPA puts him in a slightly different position to that occupied by Adv Peete, he aspires to become a full judge of the High Court. This will require that he be nominated and that he undergo the sifting processes of the Judicial Service Commission, whose task it is to recommend the appointment of permanent judges.
Mpshe has limited experience of civil matters, having spent his legal career in the public administration. The only civil matter in which he is involved, as a litigant not a litigator, is the pending review of his decision to withdraw all charges against Jacob Zuma. The fact that this litigation is still pending will count against his permanent elevation. [This may be an explanation for the unusually long acting appointment he has taken in the North West.]
It is a racing certainty that Mpshe will be asked questions during the interviewing process about his admission that he plagiarised a Hong Kong decision in giving his reasons for abruptly ending the case against Zuma. Not only the plagiarism, but also the fact that the decision upon which he relied had already been overturned on appeal is likely to feature in the questioning to which he will be exposed if he applies for a permanent position.
Then there is the matter of the prosecution of the former police chief, Jackie Selebi. After Vusi Pikoli was suspended for going after him, Mpshe was appointing in an acting capacity in his place. Instead of considering the Selebi docket without fear, favour or prejudice, as the Constitution requires, he assembled a panel of experts to help him make the tricky decision to proceed. Selebi is now standing trial. Pikoli, later fired for going after Zuma, has been vindicated and compensated after long and arduous litigation to restore his good name and standing.
It is not only the unsatisfactory aspects of Mpshe’s position that are worrying. This is how Radebe ended his press release on the topic:
"Lastly, as Minister of Justice and Constitutional Development, I re-iterate my firm position that I have not been favoured with any logical and constitutionally valid argument that I have acted ultra vires, and maintain that my decision to appoint Adv Mpshe remains valid today as it was when I took it. The fact that Adv Mpshe requested the President to allow him to vacate his office with immediate effect, as a Deputy National Director of Public Prosecutions, based on personal considerations could not have affected my position with regards to 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. Effectively, Mpshe AJ is no longer a member of the National Prosecuting Authority."
The Minister has, in effect, declared open season on the appointment of civil servants as acting judges. This is conduct inconsistent with the Constitution. He is obliged to ensure the independence and impartiality of the Bench. He must respect the doctrine of the separation of powers. His words quoted above show that the Minister has no intention of desisting in the future and has had scant regard for the Lesotho precedent, even though the Appeal Court in that country is presided over by eminent jurists from this country.
The 1979 Cape Times editorial quotes the attitude of the General Council of the Bar back then:
"A person appointed from the public service who has of necessity throughout his career approached matters from the point of view of the state, will not at the outset have, and is unlikely to acquire, the necessary degree of independence and will inevitably be suspected not to be impartial."
The law reports and court records are littered with judgments overturning decisions of Judge Lategan on appeal, suggesting that the dire predictions of the Bar’s leadership back then were accurate. The Judicial Service Commission will doubtless have regard to these considerations should Mpshe ever be nominated for a permanent position on the Bench.
The Minister should reconsider his position and concede that he has been badly advised to suggest that there is nothing wrong with the appointment of public servants to the High Court whether as acting or permanent judges. If he does not, the Constitution will have to be invoked to obtain the necessary declaration of rights and interdict against him. This is an option that was not available back in 1979.
Paul Hoffman SC
23 February, 2010.
