Freedom Under Law views with great concern the reported appointment as an acting judge in the Northern Cape of Adv Mpshe, a legal practitioner in permanent State employ. The appointment of a civil servant as a temporary judge fundamentally disregards the division of powers entrenched in South Africa’s Constitution, and is in conflict with the leading judgment on the point in the SADC region.
Some 20 years ago Lesotho’s Court of Appeal held that such an appointment was void. Applying legal principles established internationally, the court held that a temporary judge who is still a civil servant, and stands to return to his post, lacks sufficient institutional independence to serve as a judge. The public perception must be that his future appointment or promotion may be influenced by his rulings while a judge. Acting judges should not be beholden to a permanent employer, least of all another arm of State, whose actions daily fall to be adjudicated before judges. This is especially so for the former head of the NDPP, in whose office decisions to prosecute are taken.
What appears to make matters worse in Mr Mpshe’s case is that reportedly it is the Minister of Justice personally who has approached a number of judges president to secure an acting appointment for him. The Minister has issued no refutation of these disturbing reports. The established convention is for judges president to establish their need for acting judges, and to approach the Minister for the appointment of those local practitioners they know and recommend.
There should be no basis for a public perception that notions of ‘deployment’ play any role in appointments to the judiciary.
Freedom Under Law is a not-for-profit company concerned with the advancement of the rule of law, especially in the SADC region. It is chaired by former Constitutional Court judge Johann Kriegler, and its other directors are Elize Angula (Namibia). Beatrice Mtetwa (Zimbabwe), Abdool Rahim Khan (Botswana), Prof Hugh Corder, Ezra Davids, Dr Frederick Mostert and Jeremy Gauntlett SC. Its International Advisory Board comprises Lord Steyn, Dr Mamphela Ramphele , Archbishop Emeritus Desmond Tutu, Sir Sydney Kentridge QC, Prof Jeffrey Jowell QC, Vernon Jordan, Shami Chakrabarti and Soli Sorabji QC.