I have noted that certain formations in the legal fraternity such as the General Council of the Bar (GCB) as a leader of the pack, the Law Society of South Africa (LSSA) and the Freedom under Law (FuL) have raised concerns and or objections regarding the decision I made to appoint Advocate Mokotedi Mpshe as acting Judge in the North West High Court.
They argue that this appointment of a former acting national Director of Public Prosecutions as a former employee of the state violates the principle of judicial independence and believe is unconstitutional.
Judicial independence and judicial authority
The GCB and of late the LSSA, the latter organisation through media statements, urged me to withdraw or suspend the appointment as they harbour fears that this undermines the independence of the judiciary, “either as a perception or in principle”. I disagree with this assertion and I will forthrightly demonstrate the basis of my disagreement.
I now turn to this notion of perception or mistaken application of principle as advanced by the GCB and allies. There is adequate provision in the Constitution and case law to shield judicial independence and insulate judicial authority from interference. One of the most important elements of judicial independence is the requirement that the judiciary shall be appropriately qualified, independent and impartial institution which shall have the power and jurisdiction to safeguard and enforce the Constitution and all fundamental rights.
For this reason, Constitution demands that an “appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer” (section 174(1)). In addition, the Constitution contains adequate checks and balances to guard against the erosion of the independence of the judiciary and the infringement of the rule of law.
Central to these checks and balances are the following:
* The separation of powers embodied where the courts are enjoined to function independently and subject only to the Constitution and the law where they must apply the law without fear, favour or prejudice
* That no person or organ of state must interfere with the functioning of the court (section 165(3)) and
* That the oath of office taken by all judicial officers, whether in an acting or permanent capacity before they commence with their judicial functions, enjoins them “to administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law’ (Schedule two of Constitution, oath or affirmation of judicial officers)
One of the Constitutional Court decisions clarified judicial independence in its judgment delivered by Ackermann J (with Chaskalson, Langa, Didcott, Mokgoro and others concurring) as follows:
“Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them. No outsider, be it government, pressure group, individual or even another judge, should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence”.
Elements of exercising judicial independence are not dissimilar to those exercised in prosecutorial independence as the Constitution provides that for the prosecuting authority to exercise “its functions without fear, favour or prejudice” (section 179(4)).
In the judgment delivered by Harms DP, with whom four other judges of the Supreme Court of Appeal (SCA) agreed, the SCA defined the requirements for the independence of members of the National Prosecuting Authority (NPA) as follows:
“(34) The Act requires members of the prosecuting authority to serve ‘impartially’ and exercise, carry out or perform their powers, duties and functions ‘in good faith and without fear, favour or prejudice’ and subject only to the Constitution and the law (s 32(1)(a))” (NPA Act, 1998).
When dealing with this notion of independence, which has adequately been clarified by our courts and is probably now a resolved matter, Harms DP (expressing views from a British law journal) held that the prosecuting authority or a prosecutor for that matter “is required by convention to make prosecutorial decisions without regard to political considerations and may not subject his discretionary authority to that of government. He is also not responsible to government to justify the exercise of his discretion because this political office has judicial attributes”.
The SCA therefore clearly expressed the view that members of the National Prosecuting Authority are obliged to be impartial and independent. The actions of a judge, acting or otherwise, demand the same traits.
Members of the National Prosecuting Authority are paid by the government.
The GCB makes a convenient omission which undoubtedly advances its course by not referring to instances where advocates and attorneys in private practice take positions as acting judges. These are legal practitioners who get briefed to appear on behalf of government and get paid by government. These are the practitioners who during their acting stints may have to adjudicate in matters that involve government.
Furthermore, universities receive a subsidy from government and it is that subsidy which inter alia is used to pay salaries of lecturers appointed in the faculties of law at those universities. No objection has been raised when a lecturer got appointed as a judge. Neither have any objections been raised when advocates and attorneys got appointed as judges (acting or permanent) when such advocates or attorneys have consistently or regularly acted on behalf of the government.
Appointment of acting judges
The LSSA has expressed a view that I made both the nomination and the appointment of Advocate Mpshe as an acting Judge. In their view this translates into interference by the executive in the affairs of the judiciary. As I shall now explain, acting appointments are not as a matter of law preceded by any nomination process. This is a skewed understanding and misrepresentation of the Constitution. As a cabinet member responsible for the administration of justice, it was my prerogative to “appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve” (section 175(2) of Constitution).
It is beyond dispute that appointment of judicial officers is an executive function. The president appoints permanent judges and the minister appoints acting judges and magistrates. The Constitutional Court held that this executive power is consistent with our principle of separation of powers, confirmed by Chaskalson CJ in the case of SV Van Rooyen.
The role of the Judicial Service Commission (JSC) in relation to permanent appointments seeks to ensure that the appointment process is fair and transparent and eliminates the arbitrarily use of discretion by the executive which was the position during the Apartheid era. The need for the minister to consult with a judge president when making an acting appointment seeks to ensure that the views of the judge president are considered in making such an appointment.
It occurs in practice that the judge president, who is normally the first person to be aware of a vacant judicial post, and would initiate the process by requesting the Minister to make an acting appointment of a particular person preferred by such judge president. The minister, in applying his discretion on such a request must satisfy himself that the preferred person meets the requirements to occupy a judicial office.
Similarly, where the minister is aware of the need for an acting appointment, either due to a vacancy or for reasons of enhancing the efficiency of the administration of justice, may initiate consultation with a judge president for purposes of making an acting appointment. This is what I have done in the case of appointing Advocate Mpshe as the acting judge. It is therefore wrong for the GCB to suggest that I must consult with them (GCB) and the JSC before deciding on an acting appointment. No such provision exists in our law. If anything, I exercised a constitutionally conferred authority when I made this appointment.
In conclusion, there is no reason to believe that Advocate Mpshe will have the propensity to take the side of the state because he worked for the National Prosecuting Authority except by using the unreliable devices of perception of future actions. Since he has tried no case, I have no reason to impute from these misplaced perceptions that he will fall short of the impartiality required of him.
There is nothing exceptional and therefore unbecoming about his appointment. This is yet another politically motivated complaint disguised as pursuit of the principle of judicial independence, the rule of law and related principles.
It is important that despite our salient political views as citizens and as custodians of various State institutions, we do not hamper the democratic framework of our state institutions under whatever disguises as this invariably undermines our constitutional democracy and in addition the very same principles that we claim to defend with regards to separation of powers.
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 Advocate Mpshe remains valid today as it was when I took it.
The fact that Advocate 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 National Prosecuting Authority. Effectively, Mpshe AJ is no longer a member of the National Prosecuting Authority.
I wish Advocate Mpshe well in his new and challenging responsibility. I trust that he will continue to serve his country with distinction, albeit in a different capacity.
For enquiries contact:
Tlali Tlali
Cell: 082 333 3880
Issued by: Department of Justice and Constitutional Development
18 February 2010
Source: Department of Justice and Constitutional Development
(http://www.justice.gov.za/)
