Minister urged to withdraw Mpshe appointment

The GCB has called on the Justice Minister Jeff Radebe to put Mpshe's appointment on hold, citing concern for the independence of the judiciary. The GCB urged the Minister 'to withdraw, or at least suspend, the appointment of Advocate Mpshe as an acting judge'. It recalled that at a heads of court meeting in October 2008, it expressed concerns about the appointment of state employees as acting judges. Mpshe, who was the acting National Director of Public Prosecutions while Vusi Pikoli was suspended and then fired, later announced the dropping of corruption charges against Zuma. Mpshe has been appointed to act in the North West High Court, Mafikeng. The council said it believed that the JSC had decided against state employees acting as judges - a position confirmed by JSC spokesperson Marumo Moerane SC in a Beeld report. He said the JSC does not approve of the appointment of state officials, especially those from the NPA, as acting judges. GCB Press release Full Beeld report

Freedom Under Law has also raised its concern. 'The appointment of a civil servant as a temporary judge fundamentally disregards the division of powers entrenched in SA's Constitution, and is in conflict with the leading judgment on the point in the Southern African Development Community region,' said FUL, formed by former Constitutional Court judge Johann Kriegler, in a report in The Citizen. FUL said that applying legal principles established internationally, a Lesotho court held 20 years ago 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.' They felt that an acting judge should not be beholden to a permanent employer, 'least of all another arm of state, whose actions daily fall to be adjudicated before judges'. Full report in The Citizen

Mpshe's appointment comes amid concern about Radebe's attitude to judicial independence following his abrupt postponement of interviews for judges last year, ostensibly because of concerns about 'transformation', says a Business Day report. It notes it has been reported that Radebe made a concerted effort to ensure Mpshe's appointment. Mpshe is still officially an employee of the NPA. Tlali Tlali, spokesperson for the Department of Justice, said Mpshe would be 'detached' from the NPA for the duration of his stint as acting judge. The Constitution empowers the Justice Minister to appoint acting judges after 'consulting the senior judge' of the relevant court. Tlali said Radebe 'merely exercised a constitutionally conferred authority' in appointing Mpshe. He said Radebe had consulted North West acting Judge President Monica Leeuw and Mpshe's appointment was to 'enhance capacity in the judiciary to attend to case backlogs in that region'. Full Business Day report