Mpshe’s appointment: scandalous attack on independence of the judiciary

Maybe we are all suffering from abuse-of-power-fatigue? What with the probably unlawful dropping of charges against President Jacob Zuma, the probably unlawful firing of Vusi Pikoli as National Director of Public Prosecutions (NDPP), the clearly unlawful granting of “medical parole” to Schabir Shaik – that “terminally ill” (ha!) friend of President Zuma’s – (the same friend who was convicted of bribing the President), the appointment of a clearly unfit Menzi Simelane as the head of the NDPP, and the alleged appointment of world class homophobe and lover of Motata tea, John Qwelane, as ambassador to Uganda, we have become used to actions that undermine our Constitution and the law.

Still, I do not understand why there has not been more outrage about the Mail & Guardian report that Justice Minister Jeff Radebe has been working hard to secure a new job for Mokotedi Mpshe, who was responsible for the dropping of charges against President Jacob Zuma. Radebe has now finalised Mpshe’s appointment as acting judge in the North West Provincial Division after first trying to get him a post in the Western Cape. This sets him on a path towards a more permanent position on the Bench.

There are three reasons why this appointment is scandalous and perhaps unlawful.

First, while section 175(2) of the Constitution states that “[t]he Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve”, this provision must be read in the light of the separation of powers doctrine and the constitutional guarantee of judicial independence. The present convention that gives effect to these principles is that the Judge President identifies candidates for appointment as acting judges and that the Minister then appoints them. The Minister is not supposed to canvass for a particular candidate. 

This convention finds strong constitutional support in section 165(2) and (3) of the Constitution and the power of the Minister is in effect qualified by these provisions which states:

(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

(3) No person or organ of state may interfere with the functioning of the courts.

Judges need to be both impartial and independent. Even when they will be impartial it does not mean they will be independent. Because judges – even acting judges – might be called upon to hear cases in which the government of the day has an interest or is a party to, the separation of powers doctrine and the guarantees of an independent and impartial judiciary require the Minister not to take an active role in the appointment of acting judges.

If the Minister took an active role in such appointments and if that judge then later has to hear a case in which the government of the day has an interest, it would be akin to the Minister having chosen a judge to hear the government’s case and this would fundamentally erode the independence of the judiciary. This is because there would be a reasonable apprehension that the judge, who was only appointed because the Minister put pressure on the Judge President to appoint him, would not act without fear, favour or prejudice. 

Second, in this case the problem is compounded by the fact that Mpshe was the acting head of the NDPP who controversially did the President and the governing party a HUGE favour by dropping all charges against its candidate for President shortly before the election. What is worse, he justified his decision by plagiarising an overturned Hong Kong Court decision and without referring at all to the prosecution policy to which he is constitutionally bound and which should have guided him in the decision.  One would have to be very gullible not to have serious doubts (in law we would call it “a reasonable apprehension”) about the independence and impartiality of Mpshe and of his ability to resist political pressure.

Lastly, Mpshe I am told is still employed at the NPA. If this is correct, the appointment would surely not only be scandalous but also unconstitutional. Although members of the NPA fall administratively under the Ministry of Justice, they have a constitutional duty to act independently. Nevertheless, NPA members (like Mpshe) are state employees and are subject to the authority of the NDPP. A member of the NPA cannot serve two masters by being both subject to the authority of Simelane and subject only to the Constitution and the law which he must apply without fear, favour or prejudice. Although Mpshe might act impartially he would not be able to be independent because he is still a civil servant!

In the case of Law Society of Lesotho v The Prime Minister and Another the Lesotho Appeal Court nullified the appointment of an Adv Peete, a member of the Attorney General’s Office, as an acting judge, affirming 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 AJ’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!

The independence of judges does not only rely on the question of whether an appointee will indeed be impartial in his judgments and capable of acting independently, argued the court. The public’s right to feel confidence in the independence of judges is in itself part of the concept of independence. Where a current member of the NPA is appointed as acting judge the public would have no such confidence. Where that man is also the man who took a highly controversial decision to let the most powerful citizen off the hook and save his political bacon, the situation could not be clearer.

It may be that Mpshe will act in an exemplary fashion as acting judge. He may display the kind of impartiality we can only dream of. After all, as an apartheid Minister of Justice once remarked: “The problem with these judges are that once they are appointed they think they are there on merit and they start thinking for themselves”.

This is not the point though. The point is that the appointment of Mpshe and the involvement of the Minister undermines respect for the independence of the judiciary (which is distinct from the impartiality of a particular candidate) and creates a reasonable suspicion that Mpshe is being rewarded for unlawfully dropping charges against the President. Whether this is true or not, it creates a reasonable apprehension of bias on the part of the particular acting judge and undermines the independence of the judiciary.

This appointment is an unseemly and probably unlawful one. The Bar Council, surely, has a duty to take up this matter and challenge the appointment in court if need be? The integrity of our legal system is surely at stake.

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