Repent Radebe
There are only a few grey and grizzled lawyers left who can remember first-hand the intensity of the disapproval and dismay which followed the appointment in 1979 of the then Cape Attorney General, Braam Lategan, as a Judge in the Supreme Court. He was being rewarded for his role in the Erasmus Commission of Inquiry which unseated John Vorster and brought PW Botha to power. There were threats of boycotts and stern editorials warning of the further undermining of the independence of the judiciary by the apartheid government. There was no supreme Constitution to invoke in those dark days.Molokoti Mpshe has a knack of being the wrong person at the wrong place at the wrong time. When Vusi Pikoli was suspended as head of the National Prosecuting Authority by then President Mbeki for independently investigating the then Police Chief, Jackie Selebi, Mpshe succeeded him in an acting capacity. Instead of considering the Selebi docket himself and independently acting on what he found in it without fear, favour or prejudice as the Constitution requires, Mpshe assembled a panel of experts to help him make the call to proceed. Selebi is now in the midst of his trial on charges of racketeering and defeating the ends of justice. The decision to prosecute him exposed the Mbeki administration as one not above interfering in the work of the NPA. This helped hasten the political demise of Mbeki, while Pikoli has been vindicated and compensated handsomely.
Then Mpshe was faced with the prickly decision of whether or not to recharge Jacob Zuma with hundreds of counts of corruption and racketeering and if so, whether to do so before or after the Polokwane meeting at which the ANC elected its leadership in December 2007. Quite properly, he waited until after the election and then, quite properly, he recharged the victorious Zuma, a move fraught with political implications. This decision sparked the "Kill for Zuma" campaign and exposed the prosecution service and its acting head, Mpshe, to incredible pressure to drop the charges. Mpshe succumbed, withdrawing the charges on the baseless pretext that a conversation between two persons not involved in the timing of the decision to proceed against Zuma so tainted the process as to justify withdrawal. Mpshe plagiarized an already overruled and obscure Hong Kong judgment in an attempt to justify his craven conduct. There is a review pending in which his decision is under attack; if it is reversed, as it should be, Zuma will be back in the dock.
Recently Mpshe confided his judicial ambitions to the Minister of Justice, Jeff Radebe. Not one to disappoint his friends, Radebe proceeded to canvass for a place on the Benches favoured by Mpshe with a view to securing him an acting appointment. It was only in the lowly and dysfunctional North West province that an acting (and therefore somewhat vulnerable) Judge President could be found who was willing to take in the Deputy National Director of Public Prosecutions as an acting judge.
Reaction from the legal professions was swift and sharp. Invoking the doctrine of the separation of powers, the independence of the judiciary and its legitimacy, they called for a rethink. A decision from the Lesotho Appeal Court cancelling an appointment indistinguishable on the facts from Mpshe’s case was used as authority for the well considered criticisms of Radebe’s decision.
Instead of dealing with the merits of the complaints against his decision, Radebe called a press conference to round on his critics, accusing them of politically motivated chicanery. When the Law Society, The General Council of the Bar, the Centre for Constitutional Rights (a unit of the FW de Klerk Foundation) and Freedom under Law, a new organisation incorporated in Switzerland and SA, dedicated to upholding the independence of the judiciary, are united in their condemnation of what Radebe has done, it is difficult to find a basis for suggesting a political conspiracy against him.
Completely ignoring the sound reasoning of the Lesotho Court of Appeal (which is presided over by eminent South African jurists), Radebe mechanistically invokes what he calls his "prerogative" to appoint acting judges. He should know that his duty and obligation (not prerogative) to appoint acting judges arises "after consulting the senior judge of the court on which the acting judge will serve". The way in which this usually works is that Judges President choose available fit and proper, appropriately qualified candidates they need to fill temporary vacancies caused by unavailability of sitting puisne judges and suggest their appointment to the Minister. Radebe has reversed this well established process by his willingness to go canvassing on behalf of Mpshe. If being in the good books of the Minister is to become a new criterion, expect an executive minded acting judiciary ere long.
Radebe should also know that there is a fundamental difference between prosecutorial independence and judicial independence; instead, he tortuously attempts to conflate them.
The penultimate paragraph of Radebe’s press release bears repetition to highlight its menacing tone:
"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."
Quite apart from the fact that it would be nice to know exactly when Mpshe asked the President if he could quit immediately, the tone and content of Radebe’s remarks are chilling. They betray a breath-taking ignorance of the tenets of the rule of law, a rubbishing of the doctrine of the separation of powers and profound lack of respect for the constitutionally prescribed independence of the judiciary, without which constitutionalism is doomed.
Radebe has, in effect, declared "open season" for the appointment of employees in the public administration (a part of the executive branch of government) to the High Court Bench (a part of the judiciary). This negates the separation of powers between these two branches of government and undermines the independence, impartiality and effectiveness of the courts. Radebe is constitutionally obliged to assist and protect the courts to ensure that these vital characteristics are preserved. He shows, with stark clarity, that he does not have the slightest intention of so doing.
This is conduct inconsistent with the Constitution and is invalid; his words quoted above are clear evidence of Radebe’s intention not to fulfil his obligations towards the protection of the independence and impartiality of the courts. Unless he repents forthwith, it is urgently necessary that a declaration of rights be obtained and that he be interdicted from pursuing his preparedness to infect the judiciary with civil servants in the future because he can see nothing wrong with it. As Mpshe has now belatedly quit the NPA, his position is barely legal but still as inappropriate as Lategan’s was; the same will not be the case if civil servants are temporarily deployed on the Bench by Radebe. He obviously feels free to do so and must be stopped in his hegemonic tracks. Hopefully the General Council of the Bar and the Law Society are up to the task.
Paul Hoffman SC
22 February 2010.
