The more things change, the more they stay the same
Back in the darkest days of apartheid there was a commission of inquiry that, in effect, dethroned prime minister B J Vorster in about 1979. The then-Cape attorney general, Braam Lategan, was rewarded for his role in the commission by being controversially appointed as a judge. The head of the commission, Judge Rudolph Erasmus, was to be honoured with a seat in the appeal court - until Chief Justice Frans Rumpff threatened to resign if his court was to be tainted with such naked political favouritism.One wonders what our stoically silent chief justice makes of the perplexing gyrations of the political leadership around the appointment of our newest acting judge in North West province.
Mokotedi Mpshe is certainly a controversial character. When he was acting head of the National Prosecuting Authority, which is required to fulfil its prosecutorial functions independently, he dropped all charges against Jacob Zuma, thus opening the way for the Zuma presidency. It emerged that Mpshe had plagiarised a Hong Kong judgment - which had already been overturned on appeal - when giving his legally questionable and factually irrelevant reasons for stopping the case. Mpshe's decision has been taken on review in the high court. He is opposing the matter to save Zuma's skin.
Mpshe no longer leads the NPA but, until Thursday, remained as deputy national director of public prosecutions - an office that is an important cog in the criminal justice system. He is now serving, controversially so, as an acting judge, having been appointed until July 2010 as, what judges whisper, is a reward for his role in promoting Zuma.
A key feature in this controversy is the role of the minister of justice, Jeff Radebe, whose handiwork in the stunning "transformation" of the Judicial Service Commission and in the strange goings-on at Transnet is already the stuff of legend.
Before championing so controversial a civil servant as an acting judge, Radebe should first have looked to the mountains for inspiration. If he had looked to the mountains of Lesotho he would have come across 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 Lesotho judges said that: "Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.
"Semapo 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!"
Mpshe's position was exactly the same until he quit the NPA. Our courts are independent and subject only to the constitution and the law, which they must apply without fear, favour or prejudice. Nobody is entitled to interfere with the functioning of the courts. The state must assist and protect the courts to ensure their independence, impartiality, dignity and effectiveness.
Radebe initially defended his appointment of Mpshe on the basis that he would be able to help clear up the backlog of cases. On Thursday, the minister beefed this up by confusing prosecutorial independence with judicial independence - and rounding on his critics. It is true that the constitution gives Radebe the power to appoint acting judges "after consulting the senior judge of the court on which the acting judge will serve".
The consultation usually takes the form of the senior judges suggesting candidates: but Radebe, in novel fashion, has reversed this process to help promote Mpshe. Hats off to those judges president who declined his overtures. There are constitutional reasons for excluding all serving members of the public administration from the pool of potential acting judges.
The first is that the doctrine of the separation of powers, those who serve in the other branches of government must be kept apart from the judiciary. This "wearing of two hats" opens up to conflicts that could be most invidious, as pointed out by the Lesotho Court.
Secondly, the constitution requires an independent judiciary. q No civil servant, who is due to return to public service, can properly be regarded as independent of his masters in the public administration. But this is precisely what is required of all of our judges. They do not prosecute, but they do judge cases without fear or favour. The commingling of these separate roles is simply not on. Worryingly, Radebe just does not seem to respect or understand this.
Thirdly, the legitimacy of the judiciary is called into question if it is seen to be populated by personnel answerable to structures other than "the law and the constitution". As an employee of the NPA, Mpshe was accountable to Menzi Simelane, the controversial new national director of public prosecutions.
Without suggesting that Mpshe would deliberately decide any case in a way that would please his boss, the mere perception that this may be so is sufficient reason to disqualify him from taking up a position as an acting judge without first resigning from the public administration. But Mpshe did not resign openly, timeously and transparently - his departure from the NPA was announced belatedly at Radebe's press conference on Thursday.
All in all, Mpshe's is an egregiously inappropriate appointment. Unfortunately Radebe stoutly defends his choice. His gerrymandering track record in the Hlophe affair - in which the Cape judge president was accused of interfering in the constitutional court over a ruling on the Jacob Zuma corruption case - is being perpetuated. The unconstitutional "might is right" mind-set of elements in the security cluster is evident.
Now that Mpshe's departure from the NPA has at last been made public, he is in the barely legal, but nevertheless inappropriate, position that Lategan occupied all those years ago: a recipient of political grace and favour. Lamentably, Chief Justice Sandile Ngcobo appears to be acquiescent. Inquiries of the Judicial Service Commission met with a "we don't deal with acting judges" response. Actually, the JSC may advise on any matter affecting the judiciary, and should do so in matters such as this.
Paul Hoffman,
February 2010
